Madhya Pradesh High Court
Brij Kishore vs State Of M.P. on 30 January, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 30th OF JANUARY, 2023
CRIMINAL REVISION NO. 160 OF 2009
BETWEEN:-
BRAJKISHORE, S/O SHRI CHAMPALAL,
AGED 30 YEARS, CASTE- MEENA,
OCCUPATION- GOVT. SERVANT, R/O
LAMBACHAK, POLICE STATION-
KUMBHRAJ, DISTRICT- GUNA (MADHYA
PRADESH)
........PETITIONER
(BY SHRI RAHUL BANSAL - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION- KUMBHRAJ,
DISTRICT- GUNA (MADHYA PRADESH)
........RESPONDENT
(BY SHRI SUSHANT TIWARI - PUBLIC PROSECUTOR)
----------------------------------------------------------------------------------------
This petition coming on for orders this day, the Court passed the
following:
---------------------------------------------------------------------------------------
ORDER
This revision under Section 397/401 of the Code of Criminal
Procedure has been filed by the petitioner against the judgment dated
19/01/2009 passed by Additional Sessions Judge, Chachauda, District-
Guna (M.P.) in Criminal Appeal No.350/2008, modifying the order
dated 13/08/2008 passed in Criminal Case No.89/2008 &200/2005 by
JMFC, Chachauda, District- Guna (M.P.), whereby the petitioner has
been convicted and sentenced as under:-
Section Sentence Fine (Rs.) Default
Stipulation
323 of IPC Till rising of 600/- 6 Months RI
the Court
427/34 of IPC Till rising of 600/- 6 Months RI
the Court
Aggrieved of the judgment of conviction, this revision has been
filed by the petitioner before this Court on the ground that the Courts
below relied upon inconsistent and contradictory evidence and
convicted him. There are lots of contradictions and omissions in the
evidence of witnesses. The petitioner is aged about 30 years and no
antecedents has been put forth by the prosecution, therefore, the Courts
below should have given the benefit of Probation of Offenders Act and
Section 360 of Cr.P.C. to him and further not recorded any reasons as
specified in Section 361 of Cr.P.C. 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 361 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. 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, offence pertains to domestic dispute wherein
petitioner is alleged to have harassed his wife due to non-satisfaction of
demand of dowry. This petition is pending since 2009 and petitioner
was 30 years of age at the time of offence. Along with charge-sheet,
prosecution has not filed any antecedents of the petitioner that he is
having criminal record or he is of bad character. There is no evidence
that petitioner was involved in any offence during this period.
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 to the satisfaction of the
trial Court within a period of one month from the date of receipt of a
copy of the order 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
Digitally signed by RAHUL SINGH PARIHAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
rahul
postalCode=474001, st=Madhya Pradesh,
2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4dee
473fe77953f5,
pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487,
serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D15
9B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR
Date: 2023.02.01 14:42:34 +05'30'
