Parkash vs State of Haryana

M.M. Punchhi, J. (Oral)

This judgment shall dispose of Criminal Revision No. 66 and 429 of 1984.

Parkash Petitioner was charged for offences under sections 354/323, I.P.C. The learned judicial Magistrate 1st Class, Rohtak, convicted him but ordered his release on probation on his executing a bond in the sum of Rs. 2000/ operative for a period of two years. He was also ordered to pay Rs. 300/towards litigation expenses.

Dissatisfied, he filed and appeal in the Court of Session. So did the prosecutrix Ram Pati. She styled her appeal under section 11 of the Probation of Offenders'' Act. Both the appeals were disposed of together. The learned Additional Sessions Judge, Rohtak, dismissed the appeal of Parkash petitioner and allowed that of Smt. Ram Pati sentencing Parkash petitioner to 3 months'' rigorous imprisonment as also to fine of Rs.300/, or in default of which to undergo further rigorous imprisonment for one month. After sentencing the petitioner, he ordered his release on bail to enable him to file the present revision petition. Smt. Ram Pati has also come to this Court in Cr. R.No. 429 of 1984 for enhancement of sentence and grant of compensation.

Broadly stating, the case of the prosecutrix was that while she was cutting grass in her fields on 16.2.1982 at about noon time the petitioner appeared from behind, took her in his grip and outraged her modesty. In the process of resistance offered by her, bangles were broken and she also suffered bruises on her breasts, arms, hands and feet. On her raising the alarm a few women came there. Seeing them the petitioner let alone the prosecutrix. The husband of the prosecutrix was not in the village in those days as he was an employee at Delhi. So, the matter was reported to the police on 17.2.1982 and the prosecutrix was medically examined on 18.2.1982.

The learned counsel for the petitioner does not dispute the correctness of the prosecution story. All what he pleads is that when the learned Magistrate had exercised the discretion in the matter of sentence and had in lieu thereof released the petitioner on probation, that discretion should not have been easily disturbed by the Court of Session, more so when an appeal at the instance of Smt. Ram Pati was incompetent. On the other hand, it is maintained that the appeal of Smt. Ram Pati was competent under section 11 (2) of the Probation of Offenders Act and the discretion had been improperly exercised by the learned trial Magistrate.

Two provisions covering the field are contained in section 360, Cr.P.C. as also in the Probation of Offenders Act. It is not clear from the order of the learned trial Magistrate under what provision he exercised his jurisdiction. Thus, in the circumstances, I do not propose to decide the question whether an appeal was competent in this situation. Whatever be the position, the order was revisable, in any case even suo motu by the Court of Session. At best the appeal of Smt. Ram Pati could be treated as a revision, i.e., putting it at the highest that one can.

Now the controversy revolves around the discretion of the learned trial Magistrate in that regard. As is plain from the judgment and order under revision, not a word has been said by the learned Additional Sessions Judge about the order of the learned Magistrate regarding probation. The discretion exercised by the learned Magistrate in the matter of sentence is not to be easily interfered with unless there are cogent reasons and those reasons are explicit on the view taken. It is patently clear that the learned Additional Sessions Judge has reversed the order as if it was a matter of routine. The order thus needs to be and is hereby set aside on this aspect.

The petitioner is a covillager of the prosecutrix and was a young man of 20 years of age at the time of the commission of the offence. Though his offence is definitely against the accepted morals of our society yet he is not a gone case never to be reclaimed back of the civilised society. I therefore, order that he be released on probation under section 4 of the Probation of Offenders Act on his executing a bond in the sum of Rs.2000/ with the surety of the like amount a period of two years binding himself to receive the sentence when called upon by the Court and in the meantime to keep peace and be of good behaviour. The petitioner shall pay a sum of Rs.1500/ as compensation for the injury caused to Smt. Ram Pati and an additional sum of Rs.500/ as costs of the proceedings. The payment of compensation and the costs shall be a condition precedent to the execution and acceptance of the bond. Let the bond be executed before the learned trial Magistrate on or before 29.4.1985. Cr. Revision No. 429 of 1984 filed by Ram Pati stands disposed of accordingly.