1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 38 OF 2009 DHAMMANAND RAMESHRAO GOBALE VERSUS THE STATE OF MAHARASHTRA ... Shri E.P.Sawant, Advocate for the petitioner Shri N.R.Shaikh, APP for respondent. ... CORAM : S.B.DESHMUKH,J. Dated : 16.4.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. This revision is filed by the original accused No.1, challenging the judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Gangakhed, District Parbhani on 15.2.2008 in Criminal Appeal No.5 of 2007. 4. One Pramod Mhaske was admitted to Rural Hospital, 2 Gangakhed, His statement was recorded by the Police Officer, Gangakhed. It was revealed in his statement that at around 11.30 a.m. on 4.7.2005, he along with one Sunil Mhaske started from Petrol Pump on a motorbike. They were passing from the bridge near Fule Nagar. All of a sudden, accused (petitioner) along with other 3-4 unknown persons, intercepted their motorbike. According to the complainant, accused persons were armed with weapons like iron rod, hockey stick, wooden stick, sword etc. The petitioner came forward with the iron rod and questioned as to why the complainant initiated a case in respect of petrol pump involving their names. Accused No.1 (petitioner) according to the contention of the complainant, assaulted with iron rod on the head of complainant. Another accused Limbaji also assaulted on head and both legs with hockey stick. Friend of complainant, namely; Sunil was also assaulted by accused Vaijinath and some other unknown persons. Disclosure made by the complainant to Police Officer was recorded and based on that statement, Crime No.87 of 2005 was registered. Investigation was handed over to Police Inspector. He carried out the investigation. He arrested the accused persons and recovered alleged weapons. Medico legal certificate was obtained as regards injuries etc. and on completion of the investigation, he filed charge sheet against all accused persons. From the original record, learned counsel before the Court have pointed out that there were about seven accused persons, including the petitioner as original accused No.1. 3 5. Petitioner and other accused persons were charged for the offenses punishable under Sections 143, 147, 148, 326, 324, 341, 427 read with 149 of Indian Penal Code ("IPC"). Charge was framed at Exhibit 4. It was read over and explained. The accused denied the same and claimed to be tried. Defence of the accused persons was of total denial and false implication on account of anti canvassing the candidature of rival of the complainant in the elections of the municipal council. 6. The learned trial Judge, after recording the evidence in RCC No.176 of 2005, convicted the accused Nos.1-Dhammanand, 5-Vaijinath, 6- Devidas and 7-Tajuddin, including the petitioner, for the offence punishable under Section 324 of IPC. They were sentenced to suffer simple imprisonment for three months and to pay fine of Rs.500/- each, in default to further suffer simple imprisonment for eight days. In stead of sentencing the accused to imprisonment, the trial Court directed their release on execution of bond of good behaviour for an amount of Rs. 5,000/- for the period of one year. The trial Court also directed payment of Rs.600/- each to the complainant and another injured Sunil out of the fine amount deposited, under section 357 of the Code of Criminal Procedure. The learned trial Judge acquitted the original accused Nos.2,3 and 4 for the offenses punishable under sections 143, 147, 148, 326, 324, 341, 427 read with 149 of IPC. Thus, it is to be noted that the petitioner was convicted for the offence punishable under section 324 of IPC alone and was acquitted for all other offenses with which he was charged. 4 Since, we are concerned only with the petitioner, I am only referring further proceedings filed by the petitioner This judgment of the trial Court records that the fine of Rs.500/- was deposited by four accused. This, I am noticing only for the reason that the fine of Rs.500/- imposed on the petitioner for the offence under section 324 of IPC was deposited by the petitioner in the trial Court. 7. The petitioner, aggrieved by the said judgment and order of conviction filed Criminal Appeal No.5 of 2002 before the learned Additional Sessions Judge, Gangakhed. It came to be dismissed on 15.2.2008. In paragraph No.21 of the judgment, the first appellate Court has observed that pursuant to the conviction recorded by the trial Court, the petitioner executed a bond of good behaviour on January 16, 2007 for the period of one year. Period of bond has come to an end. Submission of the learned counsel for the petitioner has been recorded by the appellate Court that during the bond period of one year, behaviour of the petitioner was blameless. This statement was not disputed on behalf of the State. Such observation is also made by the first appellate Court at the end of paragraph No.21. The learned appellate Judge strangely, with these observations, answered point No.1, in negative. Points were framed by the first appellate Court in paragraph No.6 of the judgment. The text of point No.1 is reproduced herein below :- "Whether impugned judgment and order needs interference?' 5 The finding recorded is in negative. That is the reason why first appellate Court dismissed the appeal. (Emphasis supplied). 8. The Probation of Offenders Act, 1958 ("Act of 1958") is the Central piece of legislation. It extends to whole of India, except the state of Jammu and Kashmir. The State Governments are empowered to notify the date from which Act of 1958 is made applicable in the territory of the State concerned. Even the State Governments are empowered to notify different dates for different parts of the State so far as the application and enforcement of the Act of 1958 is concerned. From the statements of objects and reasons of the Act, it appears that in the year 1931 the Government of India prepared a draft of Probation of Offenders Bill and circulated it to the then Local Governments for their views. However, this bill could not be proceeded with. Later in 1934, the Government of India informed Provincial Governments that there was no prospect of Central legislation being undertaken at the time and there would be no objection to the Provinces undertaking such legislation themselves. A few Provinces accordingly enacted their own probation laws. The Government of India found the necessity of uniform Act applicable to the territory of Central Government. That is how the bill was prepared, introduced and finally published in the Gazette of India, Part II somewhere on 11.11.1957. The object behind the Act of 1958 is of reformative measure and to reclaim amateur offenders who can be usefully rehabilitated in society. The Act 6 prescribes a remedy whereby the offenders can be reformed and rehabilitated in society. 9. The Act of 1958 provides two important provisions. First one is Section 3, whereby power is reposed with the Court to release certain offenders after admonition. Section 4 of the Act of 1958 empowers the Court to release certain offenders on a probation of good conduct. The object behind section 4 of the Act is to give the benefit of release to the person / offender instead of punishment to enter into the bond of good behaviour and probation for some period. The period sealed by section 4 is not exceeding three years. 10. In the case on hand, indisputably, the trial Court did exercise the jurisdiction vested with him under section 4 of the Act of 1958. The petitioner was directed to be released on probation of good conduct with further direction to execute a bond of Rs.5,000/- for the period of one year. There is no dispute that such bond was executed by the petitioner and he has also deposited amount of Rs.5,000/- as directed by the trial Court. The appellate Court while considering the judgment of the trial Court recorded a finding that the bond was executed by the petitioner, in view of the order passed by the trial Court. Statement made on behalf of the petitioner that there was no breach and/or allegation of breach of the bond of good behaviour during the period of one year has not been refuted by the State. On recording this finding, the 7 appellate Court ought to have recorded a finding on point No.1 in favour of the petitioner and ought to have allowed the appeal. While considering the judgment of the trial Court, the appellate Court ought to have taken into account the objective behind section 4 of the Act of 1958. It is true that the release of the person with benefit of section 4 is in fact conviction. This is a case of explanation to Section 3. I have also taken a note of section 8 of the Act of 1958. Power of variation of condition of probation is vested with the Court subject to provisions laid down under sections 8 (i) to (iii). In case of the offender failing to observe the condition of bond, consequences have been made available under section 9 of the Act of 1958. Again the power is vested with the Court which passes an order under section 4 in respect of an offender or any Court which could have dealt with the offender in respect of his original offence. 11. Coming to the facts of the case, I may reiterate that the appeal was filed before the learned Sessions Judge challenging the order passed by the learned trial Court. Section 11 of the Act of 1958 makes a provision of appeal and revision and the powers of Courts in appeal and revision. The appellate Court, in the case on hand, was thus empowered to consider the order passed by the trial Court extending benefit of section 4 of the Act to the petitioner. In appeal, it was brought to the notice of the appellate Court on behalf of the petitioner, that during the period of one year i.e. bond period, there was no breach alleged to have 8 been committed by the petitioner That period was also expired. The appellate Court ought to have allowed the appeal with these observations that the period of one year i.e. bond period for good behaviour was complete without any allegation of breach thereof. This was not done by the appellate Court. This Court, in a revisional jurisdiction, read with section 11 can pass such an order. In my view, revision application to that extent needs to be allowed. The benefit which is being extended is in stead of punishment in terms of the IPC. (Emphasis supplied). 12. The revision application is allowed. Impugned order is quashed and set aside. Rule made absolutely accordingly. No order as to costs. 13. Shri Savant, learned Advocate appearing for the petitioner, on instruments, makes a statement that the compensation directed to be paid to the complainant and injured by the trial Court has been paid. Said statement is accepted and taken on record. ( S.B.DESHMUKH, J.) ... akl