THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 308 of 2004 (In the matter of an application under Section 374 of Criminal Procedure Code) (1) Pravat Kumar Sutar (2) Harish Singh ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Manoj Mishra, Senior Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.05.2026 : Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal is preferred by the appellants assailing the judgment of conviction and the order of sentence dated 03.09.2004 passed by the learned Addl. Sessions Judge-cum- Special Judge, Jeypore in T.R. Case No.71 of 2001 (T.R. Case No.63 of 2001) arising out of G.R. Case No.185 of 1994, whereby the appellants, though acquitted of the charges under Sections 452/323/34 of the Indian Penal Code and Section 3(1)(x) of the S.C. & S.T. (P.A.) Act, were convicted under Section 451/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two months each and to pay a fine of Rs.200/- each, in default, to undergo R.I. for fifteen days each. 2. Heard Mr. Manoj Mishra, learned Senior Advocate appearing for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel appearing for the State. 3. The prosecution case, in brief, is that the informant was residing in Quarter No. L/137 at Sunabeda. It is alleged that on 28.03.1994, during the Holi festival, accused Pravat Kumar Sutar along with three of his associates came to the informant’s quarter and behaved indecently by whistling at the informant’s wife. When she objected, the accused allegedly attempted to forcibly apply colour on her person. However, upon intervention by the informant, they left the place. It is further alleged that on 30.03.1994 at about 8.30 P.M., while the informant was watching television with his family members, both the accused persons came to his house and knocked at the door. When the informant opened the door, they allegedly abused him and his wife in filthy language and picked up a quarrel. On protest being made, accused Pravat allegedly entered into the drawing room and attempted to assault the informant. During the altercation, the informant was pushed to the ground, as a result of which he sustained a bleeding injury on the little finger of his right foot. Hearing the cries of the informant’s daughter, neighbours rushed to the spot, whereupon the accused persons fled away on a Hero Honda motorcycle after allegedly threatening the informant with dire consequences. On the basis of the written report lodged on the same day, Sunabeda P.S. Case No.28 of 1994 was registered under Sections 452/294/323/506/34 of the Indian Penal Code read with Section 3(1)(x) of the S.C. & S.T. (P.A.) Act. During investigation, the informant was medically examined and the motorcycle bearing registration No. OSK-9839 was seized and kept in the zima of its owner, namely P.W.4. Upon completion of investigation, charge-sheet was submitted under Sections 452/294/323/506/34 I.P.C. read with Section 3(1)(x) of the S.C. & S.T. (P.A.) Act. However, during trial, charges under Sections 452/323/34 I.P.C. read with Section 3(1)(x) of the S.C. & S.T. (P.A.) Act were framed against the accused persons. 4. The plea of the accused persons was one of complete denial and no evidence was adduced on their behalf. 5. In order to establish its case, the prosecution examined six witnesses in total. Among them, P.W.2 is the informant, P.W.3 is his wife and P.W.5 was the Medical Officer who examined the injured informant. P.Ws.1, 4 and 6 were examined as corroborative witnesses, while P.W.4 is also the owner of the motorcycle seized during investigation. 6. The learned trial Court, upon an extensive discussion and analysis of the evidence of the victim witnesses, found their testimonies to be consistent and mutually corroborative, and further supported by the evidence of the independent witness as well as the medical evidence. On such appreciation of evidence, the learned trial Court arrived at the following conclusion: “10. Taking the totality of the materials on record and the facts and circumstance of this case into consideration it will led to the irresistable conclusion that in the occurrence night the accused persons had entered into the house of the informant with intention to cause hurt to the informant as well as abuse and threatened him which would come under the ambit of sec. 451 I.P.C. Although the accused persons were charged under sec. 452, I.P.C. but as punishment prescribed for the offence u/s.451 I.P.C. is lesser than that of 452 I.P.C., if the accused persons would be convicted under sec. 451 I.P.C. in my opinion it would not cause any prejudice to them. 11. On the above backdrop I am led to hold that the prosecution has miserably failed to establish its case against the accused persons under sec.452/323, 34 I.P.C. read with sec.3(1)(x) of the S.C. & S. T. (P.A.) act and as such I acquit them therefrom as per sec. 248(1) Cr.P.C. On the other hand it has well established its case under sec.451/34 I.P.C. against the accused persons beyond reasonable doubts accordingly, I hold the accused persons guilty of the offence under sec. 451/34 I.P.C. and convict them thereunder.” 7. Aggrieved by such Judgement of conviction and order of sentence, the present appellants have preferred the appeal. 8. While analyzing the evidence on record, this Court finds no reason to disagree with the findings recorded by the learned trial Court. Hence, this Court affirms the conviction recorded against the appellants for the offence under Section 451/34 of the Code. Moreover, Mr. Mishra, learned Senior Advocate for the appellants after having strenuously argued the case on merit by taking this Court to the evidence on record submitted that keeping in view the procrastinated judicial process undergone by the appellants in this case and the ordeal of trial faced by the appellants; he would rather confine his argument to the quantum of sentence. He submitted that the incident pertains to the year 1994. The appellants have undergone the rigors of trial for about ten years. Thereafter, the appeal was preferred in the year 2004. The appeal has been prolonging to be heard for about 22 years. The appellants who were in their early thirties at the time of incident are now in their mid-fifties and therefore, sending them to custody for fulfilling their remaining sentence at this belated stage would serve no penological purpose. The learned Senior Counsel further submitted that the appellants have no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against them. Over the years, they have led a dignified life, integrated well into society, and are presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellants may be extended the benefit of Probation of Offenders Act read with Section 360 Cr.P.C. 9. The record reveals that the incident relates back to the year 1994 and at that point of time the appellants were in their early 20s. They have been convicted by the impugned judgment and order dated 03.09.2004. The present appeal is pending since 2004 and at present the appellants are in their mid-fifties. Much water has been flown under the bridge by now. Therefore, this is a fit case where the learned trial court ought to have been given the treatment under the Probation of Offenders Act. The Hon’ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1 has held that it is the statutory obligation of the sentencing court to apply the provisions of Probation of 1 2025 INSC 540 Offenders Act and non-granting of the benefit should be supported by reasoning. In the facts scenario of the present case, the prayer made by Mr. Mishra, learned Senior Counsel for the appellants for extending the benefit of the P.O. Act deserves merit to be considered. 10. The Hon’ble Supreme Court in Chellammal (supra) has elaborately explained the scope, object and significance of the Probation of Offenders Act, 1958 while considering the question of extending the benefit of probation to a convict. The Hon’ble Supreme Court has underscored that the legislative intent behind the enactment of the Probation of Offenders Act is essentially reformative in nature, aiming to provide an opportunity to first-time or less serious offenders to reform themselves rather than subjecting them to incarceration. It has been emphasized that the provisions of the Act are intended to prevent the deleterious effects of imprisonment on individuals who can otherwise be rehabilitated as responsible members of society. The Court has further highlighted that Section 4 of the Probation of Offenders Act confers a wide discretion upon the courts to release an offender on probation in appropriate cases and that the said provision has a broader and more expansive ambit than Section 360 of the Code of Criminal Procedure, 1973. While discussing the interplay between the aforesaid provisions, the Hon’ble Supreme Court has also clarified that courts are duty-bound to consider the applicability of the Probation of Offenders Act in cases where the circumstances justify such consideration, and if the court decides not to extend the benefit of probation, it must record special reasons for such refusal. The relevant observations of the Hon’ble Supreme Court are reproduced hereunder: “26. On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub- section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub-section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor. 27. What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. PC is that if Section 360, Cr. PC were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted. 28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor. ” Regard being had to the facts of the present case, particularly the long lapse of time since the occurrence, the absence of criminal antecedents of the appellants and the overall circumstances emerging from the record, this Court is of the considered view that the case of the appellants deserves consideration under the beneficial provisions of the Probation of Offenders Act. The said view also finds support from the decisions of this Court in Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3 wherein in somewhat similar circumstances the benefit of probation was extended to the convicts. In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellants the benefit contemplated under Section 4 of the Probation of Offenders Act. 11. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellants to suffer imprisonment, this Court directs the appellants to 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 be released under Section 4 of the Probation of Offenders Act for a period of two months on his executing bond of Rs.5,000/- (Rupees Five Thousand) each within the period of one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of two months. 12. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 22nd of May, 2026/Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 25-May-2026 20:33:05