THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 200 of 2004 CNR No. ODHC010023212004 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Ayub Mohammed …… Appellant -Versus- State of Orissa .….. Respondent For the Appellant : Mr. B. K. Mishra, Advocate For the Respondent : Mr. Sobhan Panigrahi, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.07.2026 : Date of Judgment: 30.07.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of Cr.P.C. is directed against the judgment and order dated 07.07.2004 passed by the learned Additional Sessions Judge-Special Judge, Jeypore in T.R. Case No.78 of 2001, whereby the learned trial Court while acquitting the appellant from the charges under Sections 3(2)(v)/3(1)(xi) of the SC & ST (Prevention of Atrocities) Act and Section 376/511 of the I.P.C., however, convicted him for the offence under Section 354 of I.P.C. On that count, he has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo R.I. for three months. 2. Heard Mr. B.K. Mishra, learned counsel for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, as unfolded in the F.I.R., is that the informant is the mother of the victim. The husband of the informant and the accused were both employees of Hindustan Aeronautics Limited, Sunabeda, and were residing in adjacent quarters located in the same building with a common terrace. The alleged occurrence stated to have taken place on 22.12.1995 at about 8:30 A.M. It is alleged that at the relevant time the victim was studying on the terrace situated on the upper floor, while her younger brother, aged about one year, was also present there. At that juncture, the accused allegedly came to the terrace while brushing his teeth. It is alleged that he forcibly caught hold of the victim with the intention of committing rape. When the victim raised alarm, the accused allegedly gagged her mouth with his hand and threatened her with dire consequences. Thereafter, the victim managed to free herself from the clutches of the accused and raised a hue and cry, which attracted the informant to the spot. On seeing the informant, the accused allegedly fled from the place of occurrence. It is further alleged that the accused took advantage of the absence of the informant's husband while committing the aforesaid act. It is also alleged that the accused abused and threatened the informant, declaring that since she belonged to a Scheduled Tribe, she would not be able to cause any harm to him. On the very same day, the informant got the F.I.R. scribed by one Ghasiram Hantal and lodged the same before the Officer-in-Charge, Sunabeda Police Station, at about 8:00 P.M., setting the criminal law into motion. On the basis of the said F.I.R., Sunabeda P.S. Case No. 119 of 1995 was registered. During the course of investigation, the Investigating Officer seized the caste certificate issued by the Additional Tahasildar, Keonjhar under seizure list Ext.2 and entrusted the same in the zima of the informant's husband under Ext.3. Upon completion of the investigation, the Investigating Officer submitted charge-sheet against the accused for the aforesaid offences. On the stance of complete denial and claim of trial, the appellant was put to trial. 4. To substantiate the charges against the accused, the prosecution examined five witnesses in all. P.W.1 is the informant and mother of the victim, P.W.2 is the victim, P.W.5 is the victim's father, whereas P.Ws.3 and 4 are neighbours of the informant. 5. Initially, the appellant was charged with offences punishable under Sections 376/511/354 of the I.P.C. read with Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, the learned trial Court upon appreciation of evidence and material facts recorded an order of acquittal in favour of the appellant for the offences under Sections 3(1)(xi) and 3(2)(v) of the SC & ST (PoA) Act on the ground of non- compliance with Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, which came into force with effect from 31.03.1995. The learned trial Court held that, in the present case, the investigation was admittedly conducted by a Sub- Inspector of Police, who, upon completion of the investigation, submitted the charge-sheet. Since the Investigating Officer was below the rank of Deputy Superintendent of Police, the investigation was held to be vitiated for non-compliance with the mandatory requirement of Rule 7 of the 1995 Rules. Consequently, the appellant was acquitted of the charges under Sections 3(1)(xi) and 3(2)(v) of the SC & ST (PoA) Act. The learned trial Court, while recording the aforesaid finding, observed, inter alia, as follows:- “06. At the outset it is pertinent to determine as to whether the charges under sec. 3(2)(v) and 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act are legally tenable in view of the specific provision of the S.C. & S.T. (P.A.) Act. In the instant case admittedly the investigation was conducted by S.I. Balaram Sahu who after completion of the investigation submitted chargesheet. As per the provision under Rule 7 of the S.C. & S.T. (P.A.) Rules, the specific provision has been made as follows: “Police officer not below the rank of Deputy Superintendent of Police is to investigate into the case and such investigating officer shall be appointed taking into account his last experience, sense of ability and justice to perceive the implications of the case and to investigate in the right line etc.” In this case since the investigation was exclusively conducted by the S.I. who is below to the rank of Deputy Superintendent of Police the prosecution case becomes vulnerable. There is a cantena of decisions of the Hon'ble Apex Court and Hon'ble High Court of Orissa on the above score. In this connection reference may be made to the decision reported in (2003)25 O.C.R. 669 Bidhu Bhusan Rath and others Vrs. State of Orissa in which as the chargesheet was submitted by the S.I. who is not the designated police officer his Lordship had quashed the order of cognizance. Similar view was also expressed in the case of Rajat Kumar Das and others Vrs. State of Orissa reported in (2003)25 O.C.R. 459 and 2004 (I)O.L.R. 389 Chandrasekhar Pani and others Vrs. State of Orissa. In the instant case since the prosecution has not complied with the mandatory provisions of the Special Act, the charges under sec. 3(2)(v) as well as 3(1)(xi) of the S.C. & S.T. (P.A.) Act must fail and accordingly the accused is entitled to get an order of acquittal from the above charges.” 6. Insofar as the charge under Sections 376/511 IPC is concerned, the learned trial Court concluded that the evidence on record did not establish the appellant's intention or overt acts amounting to an attempt to commit rape. Holding that the prosecution had failed to prove the charge beyond reasonable doubt, the appellant was acquitted of the said offence. Relevant part of the said judgment reads as under:- “7. So far as the charges under sec. 376/511 I.P.C., are concerned it has been specifically mentioned in the F.I.R. that while the victim was reading on the roof of their quarter the accused suddenly arrived there grabbed her, with the intention to sexually ravish her and when the victim raised hue and cry the accused gagged her mouth and subsequently when she released herself from the clutches of the accused and raised halla the informant rushed to the roof and on seeing her the accused fled away. On scrutiny of the evidence of the informant and the victim it appears that none of them has stated anything to the effect that the accused had grabbed the victim with the intention to commit rape. The overt act committed by the accused as described by them would not suggest anything to the effect that the accused had either committed rape or attempted to commit rape. Admittedly, the informant had not seen the occurrence while the accused pounced over the victim. She has categorically stated that after her arrival at the spot the victim disclosed that the accused inserted his hand inside her frock touching near her breast as well as her chadi. In absence of any specific evidence on the above score, it cannot be said that the accused had committed the alleged offence, accordingly the irresistible conclusion is that the prosecution has failed to bring home the charges under sec. 376/511 I.P.C. against the accused beyond all reasonable doubts.” 7. The learned trial Court, upon a careful appreciation of the oral and documentary evidence on record, coupled with the attending facts and circumstances of the case, came to the conclusion that the prosecution has successfully proved the charge under Section 354 IPC against the appellant beyond reasonable doubt. Accordingly, while acquitting the appellant of the charges under Sections 376/511 IPC and Sections 3(1)(xi) and 3(2)(v) of the SC & ST (PoA) Act, the trial Court recorded a finding of guilt and convicted him for the offence punishable under Section 354 IPC. Relevant part of the said judgment is reproduced hereunder:- “09. Hence, taking the totality of materials on record and facts and circumstances of the case into consideration it will lead to the irresistible conclusion that the prosecution has well, established its case under sec. 354 of the Indian Penal Code against the accused beyond all reasonable doubts. Accordingly, while acquitting the accused from the charges under sec. 3(2) (v) and 3(1)(xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Attrocities) Act and under sec. 376/511 of the Indian Penal Code as per section 235 of the Code of Criminal Procedure, I found the accused guilty under sec. 354 of the Indian Penal Code and convict him thereunder.” 8. Aggrieved by the judgment of conviction and order of sentence dated 07.07.2004 passed by the learned trial court, the appellant has filed the present appeal. 9. Learned counsel appearing for the appellant, after advancing arguments on merits, confined his submissions on the question of quantum of sentence by contending that the incident dates back to the year 1995 and that the appellant was convicted by judgment dated 07.07.2004, with the present appeal remaining pending since then. It was submitted that the appellant has remained in custody for a period of fourteen days. It was further submitted that, in the intervening years, the appellant has led a peaceful and dignified life, is well integrated into society, and is presently settled in his family lives. In such circumstances, it was argued that subjecting him to incarceration after a prolonged lapse of time would serve no meaningful penological purpose and may instead prove counter-productive, particularly in the absence of any subsequent misconduct or violation. Page 9 of 13 Accordingly, a prayer was made to extend him the benefit of the Probation of Offenders Act. It was also submitted that although the learned trial court had taken into account the age of the appellant at the time of sentencing, it declined to grant him the benefit under the Probation of Offenders Act. At the time of commission of the offence, the appellant was aged about 50 years and, at present, he is approximately 72 years old. The record further indicates that he is the first-time offender. Considering the long passage of time since the occurrence and the pendency of the appeal for over a decade, the submission for extending the benefit of the Probation of Offenders Act merits due consideration. 10. The Hon’ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1 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 1 2025 INSC 540 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 certain period in custody, the long lapse of time since the occurrence, the absence of criminal antecedents of the appellant and the overall circumstances emerging from the record, this Court is of the considered view that the case of the appellant 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 appellant 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 2 2012 (Supp-II) OLR 469 3 2007 (Supp.II) OLR 250 sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 12. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 30th July, 2026/Swarna Designation: Senior Stenographer