Sunil Lodhi vs The State Of Madhya Pradesh
2023 Latest Caselaw 10565 MP

                                                       1
                 IN         THE       HIGH COURT OF MADHYA PRADESH
                                            AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                           ON THE 11 th OF JULY, 2023
                                     CRIMINAL REVISION No. 2453 of 2023

               BETWEEN:-
               SUNIL LODHI S/O SHRI MEVALAL LODHI, AGED ABOUT
               32 YEARS, R/O VILLAGE BADORA THANA KARERA,
               DISTT. SHIVPURI (MADHYA PRADESH)

                                                                                   .....PETITIONER
               (BY SHRI R.P.GUPTA- ADVOCATE )

               AND
               THE STATE OF MADHYA PRADESH THROUGH POLICE
               STATION KARERA DISTT. SHIVPURI (MADHYA
               PRADESH)

                                                                                 .....RESPONDENT
               (BY SHRI VIRENDRA PAL- PUBLIC PROSECUTOR)

                           Th is revision coming on for hearing this day, th e court passed the
               following:
                                                        ORDER

This revision has been filed by the petitioner against the judgment dated

9.5.2023 passed by the 1st Additional Sessions Judge, Karera, Distt. Shivpuri, in Criminal Appeal No.241/2019 affirming the judgment dated 30.5.2019 passed b y the JMFC, Karera, in Criminal Case No.1614/2017 convicting petitioner under Section 354 of IPC and sentencing him to suffer 2 years RI with fine of Rs.2,000/-.

Brief facts necessary for disposal of this revision are that on 20.9.2017 Signature Not Verified Signed by: MADHU SOODAN PRASAD prosecutrix lodged a report at police Station Karera that yesterday on 19.9.2017 Signing time: 12-07-2023 10:36:15 AM at about 5 pm she was cutting grass in her field, at that juncture, appellant came

there and with bad intention caught hold of her hand. When she tried to free from his grip, appellant pressed her breasts and abused her. On raising alarm by the prosecutrix, her mother-in-law came there, then appellant fled away from the spot by giving threatening to her to face dire consequences. On her report, crime No.412/2017 under Section 354 of IPC was registered. Matter was investigated. Petitioner was arrested. After investigation, charge-sheet has been filed. Trial was conducted. After trial, petitioner has been convicted as aforesaid. Being aggrieved by the aforesaid, petitioner preferred appeal which was dismissed.

Learned counsel for the petitioner submits that petitioner has been falsely

implicated in the case. No independent witness has been examined in the case. A compromise has also been arrived at between the parties. Learned counsel for the petitioner further submits that petitioner is the first offender. He has no criminal past. Therefore benefit of the Probation of Offenders Act, 1958 be extended to him. In this regard, learned counsel for the petitioner placed reliance on para 13 of the decision of the Apex Court in the case of Lakhvir Singh and others Vs. The State of Punjab and others decided on 19.1.2021 in Criminal Appeal Nos.47-48 of 2021 which reads as under :

" 13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Signature Not Verified Signed by: MADHU Section 5(2) of the PC Act. The fact that Section 18 of the Act Signing time: 12-07-2023 does not include any other such offences where a mandatory SOODAN PRASAD 10:36:15 AM minimum sentence has been prescribed suggests that the Act

may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali, (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non- obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab, 1980 ILR (1981) are in the same context. " It is further submitted by learned counsel for the petitioner that Section 354 of IPC though amended after 1958 and prescribes a minimum sentence of 1 year, but it does not contain a non-obstante clause, and therefore, in view of aforesaid decision of the Apex Court, benefit of Probation of Offenders Act may be given to the petitioner.

Learned counsel for the State opposed the said prayer. Heard learned counsel for the parties and perused the record. Section 354 of IPC reads as under :

" 354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. "

On perusal of Section 354 of IPC, it is clear that it does not contain any Signature Not Verified non-obstante clause.

Signed by: MADHU SOODAN PRASAD Signing time: 12-07-2023 10:36:15 AM Looking to the facts & circumstances of the case and the aforesaid

decision of the Apex Court in the case of Lakhvir Singh (supra), in the considered opinion of this Court, petitioner is entitled for benefit of Probation of Offenders Act. In view of the provisions of the Probation of Offenders Act, 1958, it is directed that on furnishing a bond in the sum of Rs.25,000/- (Rs. Twenty Five Thousand Only) of good conduct for a period of two years to the satisfaction of concerned Magistrate, petitioner be released on Probation and his further sentence be treated as undergone.

With the aforesaid, this revision stands disposed of.

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 12-07-2023 10:36:15 AM