1 155.11 Cri.Rev.Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 155 OF 2011 The State of Maharashtra, through P.S.O. City Chowk Police Station, Aurangabad APPLICANT VERSUS Ishrat Hussain S/o Mohd. Hussain Age 49 years, Occu. Service, R/o Rashidpura, Shatabdi road, Aurangabad RESPONDENT ..... Shri N.H. Borade, APP for Applicant / State Shri K.G. Bhosale, Advocate for respondent ..... CORAM : U.D. SALVI, J. DATED : 8 th December, 2011. ORAL JUDGMENT : 1. Heard. Perused. 2. The applicant/ State has questioned legality and propriety of the judgment and order dated 01-09-2008 passed by the 3rd Judicial Magistrate, First Class, Aurangabad in R.C.C. No. 913/1999, to the extent it directs the respondent/ accused to furnish personal bond of good behavior and to pay Rs. 1,000/- as a compensation to the complainant under Section 5 of the Probation 2 155.11 Cri.Rev.Appln. of Offenders Act, and of the judgment and order dated 22-12-2009, passed by the Additional Sessions Judge-I, Aurangabad in Criminal Appeal No. 190/2008 confirming the said directions passed by the 3rd Judicial Magistrate, First Class, Aurangabad. 3. Case of the respondent/ accused voluntarily causing hurt to his brother-in-law Mohd. Abdul Khalid by means of iron rod concluded in conviction of the respondent/ accused for the offence punishable under Section 324 of Indian Penal Code, 1860, and the learned trial Court after hearing the parties passed impugned directions. It was submitted on behalf of the respondent/accused that he is only bread earner in his family comprising of his wife, two children and old aged parents and it is his first offence there being no previous conviction to his credit. Invoking the provisions of Section 360 of Criminal Procedure Code, 1973, learned Advocate Shri Bhosale for respondent/ accused submitted that taking into consideration the age, character and circumstances the benefit under Section 5 of Probation of Offenders Act needs to be given to the accused. 4. Learned APP for the State, referring to para No. 14 of the judgment submitted that taking into consideration nature of the offence and the proceedings, the maximum punishment needs to 3 155.11 Cri.Rev.Appln. be imposed. It was then brought to the notice of the learned trial Court that there were no criminal antecedents of the accused and accused was not involved in any offence till that date. 5. Learned Trial Court at para No. 43 of the impugned judgment made following observations : “ Taking into consideration the nature of the offence and the relations between the parties, particularly, the accused is facing this trial since 1999. The accused is qualified person, holding Diploma in Engineering. No purpose would be served by awarding jail sentence. In stead of that, in my opinion,the directions to the accused to furnish good behavior bond for two years would serve the needs of justice and in addition to that, he shall pay Rs. 1,000/- to the complainant as a compensation under Section 5 of the Probation of Offenders Act. With this, I pass following order “ 6. In the Criminal Appeal No. 190/2008, the learned Additional Sessions Judge-1, Aurangabad noted that the State had not made out a case for setting aside the impugned judgment and order of the learned Magistrate and there were sufficient reasons for invoking the provisions under Section 5 of the Probation of 4 155.11 Cri.Rev.Appln. Offenders Act. It is further observed that there are no criminal antecedents to the credit of the accused at the material time, and taking into account the nature of the offence learned Magistrate had passed impugned judgment and order for appropriate reasons 7. The learned APP for the State submitted that the respondent/ accused was absconding and was convicted under Section 174-A of Indian Penal Code, 1860 in R.C.C. No. 649/2008 and with this back ground he ought not to have been given the benefit of probation. 8. The learned Advocate Shri K.G. Bhosale for respondent/ accused, pointed out that this conviction under Section 174-A of Indian Penal Code, 1860 was suffered by the respondent/ accused not prior to the conviction under Section 324 of Indian Penal Code, 1860, but subsequently i.e. on 20-09-2008, and therefore, the said conviction, not being previous conviction could not have been considered by the learned trial Court for the purposes of granting benefit of probation to the respondent/ accused. 9. Learned APP conceded to this proposition put forth by the respondent/ accused. In the given set of circumstances, 5 155.11 Cri.Rev.Appln. particularly taking into consideration the relations between the parties i.e. complainant and the respondent/ accused, no interference is warranted in the impugned judgment and order. . Criminal Revision Application is, therefore, rejected. ( U.D. SALVI, J. ) SDM* December-11