Shiva Dhiman vs State Of Madhya Pradesh

Vijay Kumar Shukla, J

This Criminal Revision has been filed under section 397/401 of Cr.P.C by being aggrieved by the judgment dated 22.4.2024 passed by III Additional Sessions Judge, Dewas in Criminal Appeal No.90/2023 affirming the judgment dated 17.03.2023 passed by the JMFC, Dewas in Criminal Case No. 2653/2017 convicting petitioner under Section 9(2) r/w 6 of Madhya Pradesh Govansh Vadh Pratisheth Adhiniyam, 2004 and sentencing him to suffer 6 months imprisonment with fine of Rs.5000/- with default stipulation.

That, as per prosecution case, on 14.11.2017 respondent got information that pickup vehicle bearing registration No. MP 41 GA 1537 is illegally carrying the young bulls for the purpose of slaughtering. Thereafter the respondent checked the aforesaid vehicle at Bima Road square where 5 young bulls were found. When the petitioner/driver was asked about the permit, he totd that he does not have a permit. After which crime No. 469/2017 was registered against the driver Shiva for the offence under sections 4,6,9 of M.P.Govansh Vadh Pratishedh Adhiniyam and owner of the vehicle.

3 . At the outset, counsel for the applicant submits that he is not challenging the conviction on merit but confining his prayer to reduce the sentence. It is submitted that incident had taken place in the year 2017 and the petitioner has been prosecuting trial, appeal and revision since then. The petitioner has already undergone jail sentence of about one month. As the petitioner has no criminal record, therefore, instead of continuing him in jail, benefit of the Probation of Offenders Act, 1958 be extended to him. In this regard, learned counsel for the petitioner 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 the State supports the impugned judgment of conviction and sentence and submits that minimum jail sentence prescribed under section 9(2) r/w sec. 6 of M.P.Govansh Vadh Pratisheth Adhiniyam is of 6 months.

In view of 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, this Court finds that though there is no error in the judgment of conviction but the incident had taken place in the year 2017, the applicant is first offender having no criminal record and he has already undergone jail sentence of about 1 month, no purpose would be served in keeping the revision pending and remaining the petitioner 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, petitioner 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, petitioner be released on Probation and his further sentence be treated as undergone.

With the aforesaid, this revision stands disposed off