Mukesh vs State Of Madhya Pradesh

Vijay Kumar Shukla, J

This present appeal is filed u/S.374 of Cr.P.C being aggrieved by the order dated 1.5.2024 passed by Special Judge, SC & ST, Distt. Shajapur in SC No.249/2023 whereby the appellant has been convicted u/Ss.354 A(1)(i) and 509 of IPC and sentenced to undergo RI for one year with fine of Rs.1000/-and one year RI with fine of Rs.2000/- respectively with default stipulation.

According to the prosecution case, complainant made complaint that applicant sexually abused the complainant. Therefore, upon this, police authorities registered a case u/Ss.354 A(1)(i), 509 of IPC and Sec.3(1)(W-ii), 3(2)(5-a) of SC & ST Act against the appellant. Further investigation of the criminal case was conducted by the police and the challan was filed before the court below. Thereafter the case was committed for commencement of trial to the court whereby the charges u/Ss.354 A(1)(i), 509 of IPC have been framed against the appellants. The appellant denied the charges and thus the trial commenced on merits. After the conclusion of the trial the court found the appellant guilty for the charges as shown above.

Counsel for appellant submits that the appellant is not challenging the order of conviction on merit, but is confining his challenge on the question of sentence. It is submitted that out of jail sentence of one year the appellant has already undergone jail sentence of five months nine days. The incident is of year 2023. The appellant undertakes to maintain good conduct after release. Appellant has no criminal record and therefore, benefit of the Probation of Offenders Act, 1958 be extended to him. In this regard, learned counsel for the appellant placed reliance on decision rendered by Gwalior Bench in Criminal Revision No. 498/2023 (Jitendra Vs. State of M.P.) and also on para 13 of the decision of the Apex Court in the case of Lakhvir Singh and others Vs. The State of Punjab and others decided on 19.1.2021 in Criminal Appeal Nos.47-48 of 2021 which reads as under:-

"13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali, (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab, 1980 ILR (1981) are in the same context. "

Counsel for State submits that uS.354-A the minimum jail sentence is prescribed one year.

In view of the aforesaid judgments, the benefit of probation can be granted even in those cases where the minimum jail sentence is prescribed.

After hearing learned counsel for parties and considering the fact that the appellant has already undergone jail sentence of more than five months and nine days out of one year, no purpose would be served in continuing the appellant in jail for remaining jail sentence.

After hearing learned counsel for parties, this Court finds that though there is no error in the judgment of conviction but the incident had taken place in the year 2023. He has already undergone jail sentence of more than five months 9 days, no purpose would be served in keeping the appeal pending and keeping the appellant in jail. Therefore, looking to the facts & circumstances of the case and the judgment passed by co-ordinate Bench in the case of Jitendra (supra) and aforesaid decision of the Apex Court in the case of Lakhvir Singh (supra), in the considered opinion of this Court, appellant is entitled for benefit of Probation of Offenders Act. In view of the provisions of the Probation of Offenders Act, 1958, it is directed that on furnishing a bond in the sum of Rs.25,000/- (Rs. Twenty Five Thousand Only) of good conduct for a period of two years to the satisfaction of concerned Magistrate, appellant be released on Probation and his further sentence be treated as undergone. The appellant is in jail. He shall be released on complying the aforesaid conditions if not required in any other case.

With the aforesaid, appeal is partly allowed and disposed off.