1 crap1041.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1041 OF 2011 IN CRIMINAL APPEAL NO. 93 OF 2009 Suryabhan s/o Shivram Shinde, age 74 years, occ. Agriculture, r/o Rahimpur, Tq. Sangamner, District Ahmednagar ...Applicant (Orig.accused) VERSUS The State of Maharashtra ...Respondent (Orig.complainant) ..... Shri S.K.Shinde, advocate for applicant (original accused) Shri B.V.Wagh, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 28 th September, 2011 2 crap1041.11 PER COURT : 1 Heard respective learned counsel for the parties. 2 Leave to amend/add para no.2 of the present application granted. Amendment to be carried out forthwith. 3 This is an application preferred by the applicant (original accused), seeking benefit under Section 360 of the Code of Criminal Procedure. 4 The applicant contends that he is appellant in Criminal Appeal No. 93 of 2009 filed by him, challenging the judgment and order, dated 4.2.2009 in Special Case No. 11 of 2006 passed by Special Judge, Sangamner. He also contends that by the impugned judgment, the learned Special Judge convicted the applicant (original accused) for the offence punishable under Section 135 of the Electricity Act, 2003 and sentenced him to suffer simple imprisonment for one month and to pay fine of Rs.1,000/-, in default to suffer further simple imprisonment for 7 days. He further contends that learned Special Court also convicted him for the offence punishable 3 crap1041.11 under Section 353 of the Indian Penal Code and sentenced him to suffer imprisonment for one month and to pay a fine of Rs. 1,000/-, in default to suffer further simple imprisonment for 7 days and it was also directed that both the said substantive sentences of imprisonment to run concurrently. The said appeal was admitted by this court on 26.2.2009, and same is pending for hearing. 5 The applicant contends that he is 74 years old and alleged offence is of the year 2005 and applicant has not been convicted previously for any offence. It is also stated that he is having good character and he has no previous antecedents of the offender. Hence, it is submitted that it is expedient that the applicant be released on probation of good conduct instead of sentencing him at once to any punishment. The applicant also expressed his readiness and willingness to furnish bond with or without surety to appear and receive sentence when called upon during such period as the Court may direct and in the mean time undertook that he would keep the peace and observe good behaviour. 6 Accordingly, the applicant prayed that benefit of Section 360 of the Code of Criminal Procedure be given to the 4 crap1041.11 applicant in the interest of justice. 7 Admittedly, the applicant herein has been convicted and sentenced for the offence punishable under Section 353 of the Indian Penal Code, which attracts maximum imprisonment to the extent of two years or fine or both. Moreover, the contents of the present application recite that there are no criminal antecedents of the applicant and present offence committed by the applicant (original accused) is his first offence and he has not been convicted previously. Moreover, learned counsel for the applicant further states that the applicant has got fixed place of residence at Rahimpur, Taluka Sangamner, District Ahmednagar and the applicant shall reside at the same place during the period of bond, if permitted to be executed by this court. 8 In the circumstances, considering the contents of the present application, since, as stated by the applicant, he is of 74 years old, who has been sentenced for the imprisonment below 7 years and he has no previous conviction at his record, as stated in the present application, it is expedient that the 5 crap1041.11 applicant should be released on probation of good conduct in respect of the said conviction and sentence for the offence punishable under Section 353 of the Indian Penal Code imposed upon him by way of impugned judgment and order, dated 4.2.2009, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with surety or Rs.10,000/- for the period of one year, to appear and receive sentence when called upon during such period, as the Court may direct and in the mean time to keep the peace and be of good behaviour. 9 In the result, present application is allowed in terms of prayer clause ‘B’ thereof and as regards the conviction and sentence of the applicant, imposed upon him by way of impugned judgment and order, dated 4.2.2009, in respect of offence punishable under Section 353 of the Indian Penal Code, it is directed that the applicant be released on his entering into a bond with surety of Rs.10,000/- for the period of one year, before the concerned court, specifying therein to appear and receive sentence when called upon during such period as the Court may direct and in the mean time, he shall 6 crap1041.11 keep the peace and be of good behaviour, and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1041.11