Ram Bharosi Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 5610 MP

                                                                    01

         THE HIGH COURT OF MADHYA PRADESH
                          CRR 1262/2022
                    (Ram Bharosi Vs. State of M.P.)

Gwalior, Dated: 19.04.2022
      Shri Nirmal Sharma, learned counsel for petitioner.

      Shri   B.P.S.     Chauhan,   learned   Public   Prosecutor    for

respondent/State.

This criminal revision has been filed under Section 397/401

CrPC aggrieved by the judgment passed by Additional Sessions Judge

Morena in criminal appeal No.7862/2021 on 30.03.2022 by which he

has maintained conviction granted by Judicial Magistrate First Class

Morena District Morena vide order dated 15.11.2021 under Section 41

r/w 42 of Indian Forest Act and under Section 27 r/w 51 and 29 r/w 51

of Wild Life (Protection) Act.

Present criminal revision has been filed on the ground that

learned trial Court has relied upon contradictory evidence of

witnesses and order of conviction is based on surmises and

conjuncture. Besides this in revision petition no other illegality has

been attributed towards court below.

Brief facts of the case for disposal of this petition are that on

19.04.2004 flying squad of Range Officer, National Chambal

Sanctuary Deori while patrolling reached Tigri Rithora Ghat. They

saw one tractor having registration No. MP 06 J 33227 is coming

filled with sand. They stopped the tractor trolley and inquired about

permit. Driver of the tractor trolley pleaded guilty and stated that he is

taking sand for temple. Tractor trolley alongwith sand was seized.

Inquest was prepared. Petitioner alongwith Harishankar was arrested.

Offence under Section 27, 29, 39(1)(D) of Wild Life Protection Act

was registered. After inquiry complaint for the aforesaid offences was

submitted before learned Magistrate. Complainant in support of

complaint produced evidence of Forest Guard Veer Bahadur Singh,

Ranger S.K. Udaypure, ASI Kishan Singh, Vishal Singh Tomar. They

were cross-examined by the defence. After marshelling the evidence,

trial Court convicted the petitioner Rambharose for the aforesaid

offences and convicted the petitioner under Section 41 r/w 42 of

Indian Forest Act for six months R.I. with fine of Rs.500/-, 27 r/w 51

of Wild Life (Protection) Act for one year R.I. with fine of Rs. 3000/-,

29 r/w 51 of Wild Life (Protection) Act for one year R.I. with fine of

Rs. 3000/- with default stipulation.

The Appellate Court maintained the conviction and sentence

passed by trial Court. Matter is of 19.04.2004. For the last 18 years

petitioner has faced the trauma of trial and appeal. The petitioner is

aged about 62 years and no antecedents has been put forth by the

prosecution, therefore, Court below should have given the benefit of

Section 360 of Cr.P.C. to him. In support of his submission, learned

counsel for the petitioner placed reliance on a decision of the Apex

Court in the case of Lakhanlal @ Lakhan Singh vs. State of M.P.

decided on 04/04/2019 in Criminal Appeal No.1306/2013.

Heard learned counsel for the parties and perused the material

available on record. Section 360(1) of Cr.P.C. reads as follows:-

"360. Order to release on probation of good conduct or after

admonition.-

(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour:

Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2).

As per the aforesaid provision, said Section contemplates as to

which offender is entitled to the benefit of probation and on what

conditions. It contemplates that firstly, if any person not under twenty-

one years of age is convicted of an offence punishable with fine only

or with imprisonment for a term of seven years or less; and secondly,

when any person under twenty- one years of age or any woman is

convicted of an offence not punishable with death or imprisonment for

life, is entitled to the benefit of probation. Both categories of offenders

have to further satisfy that he is not a previous convict; satisfaction of

the Court having regard to the age, character or antecedents of the

offender and to the circumstances in which the offence was

committed. The court being satisfied can order, instead of sentencing

him at once to any punishment, that he be released on his entering into

a bond with or without sureties, to appear and receive sentence when

called upon during such period (not exceeding three years) and in the

meantime to keep the peace and be of good behaviour.

Provisions of Section 360 of Cr.P.C. is mandatory and if trial

Court is of the opinion that order to release on probation is not

advisable, he has to assign reasons for non-giving the benefit as per

the provisions of Section 361 of Cr.P.C. Beside this, as per Section

360(4) of Cr.P.C., this benefit can be awarded by the appellate Court

or by the High Court while exercising its powers of revision.

In case in hand, on 19.04.2004 flying squad of Range Officer,

National Chambal Sanctuary Deori while patrolling reached Tigri

Rithora Ghat. They saw one tractor having registration No. MP 06 J

33227 is coming filled with sand. They stopped the tractor trolley and

inquired about permit. Driver of the tractor trolley pleaded guilty and

stated that he is taking sand for temple.

In view of the aforesaid, in the opinion of this Court, benefit of

probation ought to have been extended to the petitioner which trial

Court as well as appellate Court have not extended. Therefore, this

revision is disposed of in terms of Section 360 of Cr.P.C. and it is

ordered that petitioner be released on probation of good character for

a period of one year on furnishing personal bond before the trial Court

within a period of one month from the date of receipt of a copy of the

orders on the conditions that he will maintain peace in the area and

will not commit any offence during this period. Probation Officer is

also directed to submit quarterly report of the petitioner before the

concerning trial Court about his activities.

Accordingly, this Criminal Revision stands disposed of.

Certified copy/e-copy as per rules/directions.

(Deepak Kumar Agarwal) Judge ojha

YOGENDR A OJHA 2022.04.2 0 15:58:30 +05'30'