Bhagwandas vs The State Of Madhya Pradesh
2023 Latest Caselaw 7410 MP

                                                              1
                             IN     THE      HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                      BEFORE
                                   HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                       ON THE 8 th OF MAY, 2023
                                            CRIMINAL REVISION No. 3988 of 2017

                            BETWEEN:-
                            BHAGWANDAS S/O SHRI KAILASHNARAYAN, AGED
                            ABOUT 59 YEARS, OCCUPATION: GOVT. SERVICE WARD
                            NO. 8 MEHGAON DISTRICT BHIND (MADHYA
                            PRADESH)

                                                                                           .....PETITIONER
                            (BY SHRI RAJ KUMAR SHRIVASTAVA - ADVOCATE)

                            AND
                            THE STATE OF MADHYA PRADESH INCHARGE POLICE
                            STATION MEHGAON DISTRICT BHIND (MADHYA
                            PRADESH)

                                                                                          .....RESPONDENT
                            (BY SHRI RAJENDRA SINGH YADAV - 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 12.10.2017 passed by the 5th Additional Sessions Judge, Bhind, Distt. Bhind, in Criminal Appeal No.125/2016 by which the judgment dated 18.03.2016 passed by the Additional Chief Judicial Magistrate, Mehgaon, in MCRC No.855/2007 has been partly allowed.

Brief facts necessary for disposal of this revision are that on 22.09.2017 the complaint and his father in front of the shop read the newspaper and on hearing the sounds when they reached to the backyard of their house they saw Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/9/2023 10:09:53 AM

that Kamal Kishore and Gopal demolish the balcony of their house and when they tried to stop them, then petitioner and other co-accused persons on 22.09.2017 assembled in front of the house of complainant and abused to complainant and thereafter, for committing maarpeet with the complainant entered in the house of complainant and committed maarpeet with the wife and mother of the complainant and it was alleged that the petitioner armed with farsa assault the mother of the complainant and other co-accused persons committed maarpeet with the wife of the complainant with kick and fist and therefore, a case under Section 324, 324/34, 323/34, 294 and 452 of IPC has been registered against the petitioner and other co-accused persons.

Learned counsel for the petitioner submits that the judgment passed by the learned Court below is illegal, arbitrary and contrary to the law and not sustainable in the eyes of law. Learned Court below has not considered the evidence and material document on record. It is further submitted that neither prosecution produced the witness of the seizure memo nor produce the incriminating article (farsa) before the Court. It is further submitted that during the time of incident the petitioner is working in the Govt. Hospital and petitioner has been falsely implicated in the case. There are so many contradictions and omissions in the statements of the prosecution witnesses. Therefore, it has been prayed that the petition be allowed.

It is further stated that in view of such facts, since the petitioner has no criminal past, benefit of the Probation of Offenders Act, 1958 be extended to him. In this regard, 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 :

Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/9/2023 10:09:53 AM

" 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 Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory 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 stated by 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. Section 354 of IPC reads as under :

" 354. Assault or criminal force to woman with intent to outrage her modesty.- Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/9/2023 10:09:53 AM

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 non-obstante clause.

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 Vijay

Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/9/2023 10:09:53 AM