Ganesh Dutt Rekhari vs The State Of Uttarakhand
2021 Latest Caselaw 874 UK

      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
               Criminal Revision No.54 of 2021


Ganesh Dutt Rekhari                        ............... Revisionist

                               Versus

The State of Uttarakhand                         ...... Respondent


Ms. Pushpa Joshi, learned Sr. Counsel assisted by Ms. Kharakwal, learned
counsel for the revisionist.
Mr. Siddharth Bisht, learned B.H. for the State

Hon'ble R.C. Khulbe, J.

This criminal revision, preferred by the revisionist u/s 397/401 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 14.10.2019 passed by learned Additional Chief Judicial Magistrate, Nainital in Criminal Case No.571 of 2018, "State of Uttarakhand Vs. Ganesh Rekhari" whereby the trial Court convicted the revisionist under Section 354 IPC and sentenced him to undergo one year's SI with a fine of Rs.2,000/- and also convicted him under Section 506 IPC and sentenced three months' SI as well as order dated 17.02.2021 passed by learned 1st Additional District and Sessions Judge, Nainital in Criminal Appeal No.146 of 2019, "Ganesh Dutt Rekhari Vs. State of Uttarakhand" affirming the order dated 14.10.2019 passed by the trial Court.

2. Facts, to the limited extent necessary, are that on 17.01.2018 information was submitted by the informant PW2 with Police Station Bhowali about the offence committed by the revisionist regarding outraging her modesty. Accordingly, an FIR was lodged with Police Station Bhowali.

3. On completion of the investigation, charge sheet was submitted. After compliance of provisions of Section 207 Cr.P.C. charges under Section 354 and 506 IPC were framed.

The charge was read over and explained to the revisionist. The revisionist pleaded not guilty and claimed to be tried.

4. To prove its case, the prosecution has examined as many as 5 witnesses, namely, PW1 Constable Kian, PW2 Prosecutrix, PW3 Urbadutt Tiwari, PW4 Dharampal Singh and PW5 Sub Inspector Rewati Pant.

5. Thereafter, the statement of the revisionist was recorded u/s 313 of Cr.P.C. who denied the allegations made against him. However, in defence the accused examined Manoj Rekhari as DW-1.

6. After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court came to this conclusion that the prosecution has proved the case beyond reasonable doubt and vide the judgment, under challenge, has convicted and sentenced the accused, as mentioned in paragraph no.1 of this judgment. Feeling aggrieved by it, the revisionist preferred an appeal No.146 of 2019, "Ganesh Dutt Rekhari Vs. State of Uttarakhand" before the 1st Additional District and Sessions Judge, Nainital.

7. The learned appellate court after hearing both the parties, came to this conclusion that the findings recorded by the trial court is based on facts and there is no illegality in the impugned judgment. Accordingly, the appellate court dismissed the appeal and affirmed the lower Court's order. Aggrieved by it, the present revision is preferred.

8. Heard learned Counsel for the parties and perused the entire evidence available on the record.

9. Ms. Pushpa Joshi, learned Sr. Counsel, appearing for the revisionist fairly submits that the conviction of the revisionist, as recorded by the Court below under Section 354 and 506 of IPC is perfectly justified as per the evidence recorded before the trial court and she also does not want to lay any challenge on the same; she only confined her prayer

to the extent that the revisionist may be extended the benefit of being the first-offender, as per the evidence, it was simply a case of catching the hand; there is no allegation regarding outraging modesty of the prosecutrix; the trial Court convicted and sentenced the accused one year's SI under Section 354 IPC while three months' SI under Section 506 IPC. The revisionist has already served two months; the revisionist is the only bread earner of the family and he may be released on probation by giving him benefit of the Probation of Offenders Act, 1958. It is also argued by learned counsel for the revisionist that there is no criminal history against him.

10. Mr. Siddharth Bisht, learned Brief Holder appearing for the State, admits that he has not received any report about the criminal antecedents of the revisionist, and admitted that the revisionist is the first-time offender.

11. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self- reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

12. Section 4 of the Probation of Offenders Act, 1958 read as under:

"4. Power of court to release certain offenders on probation of good conduct

1. When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the

case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if 5 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

2. Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

3. When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

4. The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 5. The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

13. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any

punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

14. A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

15. In the present case the revisionist is the first-time offender. As per the evidence, it was simply a case of catching the hand; there is no allegation regarding outraging modesty of the prosecutrix; the accused is the only bread earner of his family. The incident seems to have taken place by chance and it also appears that the accused had not planned to commit the crime.

16. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the revisionist to jail to serve out the remaining sentence. Rather, in the opinion of the Court, he should be released on probation in order to reform himself.

17. The present criminal revision, thus, stands partly allowed. The conviction part of the revisionist- Ganesh Dutt Rekhari under Sections 354 and 506 IPC is left intact. However, as far the sentence part is concerned, it is directed that the revisionist - Ganesh Dutt Rekhari shall be released on probation for a period of one year on furnishing a personal bond with one surety to the satisfaction of the concerned Trial Court. The fine Rs. 2,000/- will be deposited within a period of one month, if not already deposited, from the date of receipt of this order, to the court concerned. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/ revisionist fails to observe good conduct and behaviour during probation or is found violating any condition, to be imposed; the Court concerned shall be at liberty to cancel the bonds calling the accused-revisionist to serve out the remaining sentence. The revisionist- Ganesh Dutt Rekhari shall appear before the Trial Court on or before 31.03.2021 for compliance.

18. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.

(R.C. Khulbe, J.) 15.03.2021 Sukhbant