1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRI. REVISION APPLICATION NO.: 464 OF 1999 Rajabhau S/o Bhaurao Chavan, Age: 30 years, Occu.: Police Constable, B.No.1395, R/o Parbhani, Taluka and District: Parbhani. ... PETITIONER/ [ORIG. ACCUSED]. VERSUS The State of Maharashtra. Through Police Station, Basmatnagar, Taluka: Basmat, Dist. Parbhani. ... RESPONDENT [ORIG.COMPLAINANT] *** Mrs. Manjusha Deshpande , Advocate for the Petitioner. Mr. V. D. Godbharle, A.P.P. for the Respondent/ State. *** CORAM: K. U. CHANDIWAL, J. DATED: 7th OCTOBER, 2009. ORAL JUDGMENT: 1. Heard learned counsel for the accused/ applicant and learned A.P.P. The learned Special Judge, Parbhani by order dated 1st November, 1999 convicted the accused/ applicant for offence under section 323 of I.P.C. and sentenced him S.I. till rising of the Court and to pay a fine of Rs.750/- in default to undergo further S.I. for one month. 2 It is under challenge. 2. By order dated 1st March, 2007 Rule was directed. 3. The petitioner/ accused was a police constable, prosecuted for an offence under section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act and under section 324 of IPC. Based on the analysis of the evidence, the learned Judge, as stated above, has recorded the conviction and the accused/ applicant was acquitted of the charge in terms of section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act. 4. The complainant and accused/ applicant are the employees rather colleague and police constables. The complainant belongs to Matang community which has not been seriously challenged. The complainant alleged that on 20th October, 1994, while both were attending the roll call parade at around 08.00 p.m. the accused Rajabhau being asked by the complainant as to why he had gone to complainant's house on 18th October, 1994 and insulted his wife, the accused Rajabhau got enraged and started a brawl and manhandling the complainant on his right eye-brow and back side with a fighter which the accused possessed. Resultantly, the complainant suffered bleeding injuries. The police constable Vithal Rathod, Bapu Rathod, Vijay Borade (PW3), PSI Manik Satpute (PW5), who were present at the material time in police station intervened. The complainant was medically examined, based on report from the concerned police and offence vide crime No.180 of 1994 was recorded against the accused. The learned Special Judge, on analysis of the evidence, found that the offence in terms of section 324 of IPC is not made out. However, he 3 found an offence under section 323 of IPC is proved and resultantly he inflicted the sentence as indicated herein before. 5. Though the scope in the criminal revision is limited, with the assistance of learned counsel I have analysed the evidence. I find that there is no scope left to take a view other than the one recorded by the learned Special Judge convicting the accused. The injury certificate to which the learned counsel gave reference, in context with the weapon of assault, loose its importance as learned Special Judge has indeed given benefit to the accused of converting the offence from section 324 to 323 of IPC. 6. Now, coming to the position of exercise of powers under section 360 of Cr.P.C., or under section 4 and 5 of Probation of Offenders Act, in terms of section 7 of the Probation of Offenders Act. It is not in controversy that the accused/ applicant, at the material time, was a government employee, a police constable, aged 30 years. Learned A.P.P. is not in a position to point out any criminal antecedent to the accused/ applicant. It was probably an occasion due to spirit of moment and in hit of passion as the complainant, in front of other colleagues, commanded the accused as to why he visited his house in his absence which the accused felt to be an insult to his character or conduct. 7. Every case projects its different shades and new dimension on facts. The reasoning recorded by the learned Special Judge in Special Case No.167 of 1995 was apt with the evidence and the available record. The parties have 4 virtually patched up their resolutions being in the same department. The provisions of section 360 Cr.P.C. and by virtue of incorporation of section 361, which obligates the learned Judge to record special reasons in certain cases, I find this Court is competent in terms of section 360 subclause (4) Cr.P.C. in particularly, which reads as under, to exercise the powers available in terms of section 360 Cr.P.C. "360. Order to release on probation of good conduct or after admonition.- .... .... ..... ..... (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.' 8. The counsel for the accused/ applicant has invited my attention to observation of the Apex Court in the matter of "Bishnu Deo Shaw V/s State of West Bengal" [AIR 1979 SC 964]. Paragraph 25 thereof, which reads as under, elaborately carve out the legal position. "25. Apart from S. 354 (3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a terms of seven years or less, or any person under twenty one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to 5 the circumstances in which the offence was committed, that it is expedient that he offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Sec. 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of S. 360 wherever it is possible to do so and it state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by S. 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Sec. 354 (3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors" 9. Since the accused/ applicant, as stated earlier, was a young constable at the material time, and without any discredit of earlier antecedents of any misbehaviour or dereliction in his duties the powers in terms of section 360 6 (4) Cr.P.C. needs to be exercised in the revision. Hence, order. 10. The conviction of the accused/ applicant Rajabhau Bhaurao Chavan, as recorded by the learned Special Judge, referred herein above, is maintained. However, instead of sentencing him at once to the punishment, the accused/ applicant is released on due admonition in terms of section 360 Cr.P.C. The fine amount is already deposited. Criminal Revision Application is allowed in terms indicated above. Rule partly made absolute. [K. U. CHANDIWAL, J.] Dated:07/10/2009. ans/464 7 CRIMINAL REVISION APPLICATION NO.: OF 2009 Date of decision: 7th OCTOBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE K. U. CHANDIWAL. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE