1 901-CRI.REVN-APPLN NO.108-2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 108 OF 2018

Ramdas s/o Haridas Bane
Age : 29 years, Occu. Business,
R/o Dhalegaon, Tq. Ahmedpur,
Dist. Latur. …Applicant

Versus

The State of Maharashtra
Through Police Station Kingaon,
Tq. Ahmedpur, Dist. Latur. …Respondent

SectionMr. Kalyan V. Patil, Advocate for Applicant
Mr. A.A. Jagatkar, APP for Respondent/State

CORAM : A. M. DHAVALE, J
DATE : 18th JUNE, 2019

ORAL ORDER:

1. Being aggrieved by the concurrent findings and Judgments

of JMFC, Ahmedpur and First Appellate Court holding the applicant

guilty under Sectionsection 354 IPC and sentencing him to simple

imprisonment for two years and to pay fine of Rs.2,000/-, in default,

simple imprisonment for 15 days, this revision is filed.

2. As per FIR, on 12th March, 2019, the girl aged 16 years

was studying in 10th Std. at Dhalegaon lodged a report at Kingaon

Police Station to the effect that while she and her sister were going

to school, the accused came to her told her that he had been there

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for her and held her hand. Then, she told him that she wanted to go

to attend examination and he should leave her hand. The people

gathered there and then he left her hand and threatened her to kill in

case, she discloses the incident to anybody. She also stated that the

accused was always following her and had taken photograph on his

mobile. He also pulled her Odhni and even gave slaps in the past.

3. On the basis of the FIR, crime was registered at Crime

No.71/2009 under Sectionsection 354, Section323, Section504, Section506 IPC. After completion

of investigation, charge sheet was filed. The learned trial Judge

framed charge and after recording evidence held the accused guilty

under Sectionsection 354 IPC and sentenced as aforesaid. The Appeal

preferred before the Additional Sessions Judge, Ahmedpur was

dismissed. Hence, this revision.

4. After hearing the learned Advocate for the applicat and the

learned APP, I find that there are concurrent findings of both the

Courts below about the happening of the incident. No perversity has

been pointed out to interfere with the concurrent findings. Therefore,

this revision is restricted to the quantum of sentence.

5. Learned Advocate Mr.Kalyan Patil for the applicant

submitted that at the time of evidence, accused was aged 20 years

and the learned trial Judge as well as the First Appellate Court

completely ignored the mandatory provisions of Sectionsection 6 of

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Probation of Offenders Act. He relied on MCD Vs. The State of

Delhi AIR 2005 SC 2658 to submit that as per Sectionsection 6 calling the

report of Probation Officer and considering the same before passing

the order is mandatory. The accused was then below 21 years of

age and the breach of this provision makes judgment of the trial

Court and the First Appellate Court unsustainable.

6. Per contra, learned APP argued that the offence is quite

serious as the accused was stalling the informant and had taken her

photograph as well. He submitted that in the facts and

circumstances, the benefit of SectionProbation of Offenders Act cannot be

given to the accused.

7. The only point for my consideration is whether the

impugned judgment is unsustainable on account of not complying

the provisions of Section 6 of the Probation of Offenders Act ?

8. Admittedly, the accused was aged below 21 years. At the

relevant time., the provisions of POCSO Act were not introduced

and the offence would be under Sectionsection 354 IPC. The act is of only

holding hand of the informant. The girl was aged 16 years and the

boy was aged 20 years and it seems that the accused was in love

with her. If he holds the hand, it cannot be said that he is a hardened

criminal.

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9. In Musa Khan Vs. State of Maharashtra, 1977 (1) SCC

733, it is held that the provisions of Sectionsection 6 of the Probation of

Offenders Act is mandatory and in case of the accused below 21

years the grant of probation is a rule and awarding sentence is

exception. It should be for the reasons to be disclosed.

10. This provision has been ignored by the trial Court. The

First Appellate Court could have rectified the mistake under Sectionsection

11, but it has also not considered the same.

11. Mr. Kalyan Patil also relied on Dilip Kumare Vs. State of

Maharashtra 1996 Cr.LJ Page 721 (Bombay). In this case, the

accused was aged 17 years and there was no previous conviction or

habitual offender. Hence, the benefit of SectionProbation of Offenders Act

was extended to him.

12. Since the report of Probation officer is not before this

Court, it is necessary to remand the matter and direct the First

Appellate Court to follow the provisions of Sectionsection 6 read with Sectionsection

11 of Probation of Offenders Act and then considering the report to

pass appropriate order, hence the order :-

(i) The Revision is partly allowed.

(ii) The order of First Appellate Court is set aside.

(iii) The matter is remitted to the First Appellate Court with a

direction that he should call the report of Probation Officer and shall

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consider the same, and thereafter, pass the appropriate order.

(iv) The applicant is directed to remain present before the First

Appellate Court on 1st July, 2019.

(v) The Record and Proceedings be sent to the Trial Court

immediately.

[ A. M. DHAVALE ]
JUDGE

mta

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