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2025 DAILYLAW 185595 (ALL)

MANOJ KUMAR v. STATE OF U.P.

CRLA/23/2011 · 2025-12-09

Saurabh Lavania

Criminal Appealbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 23 of 2011 Court No. - 13 HON'BLE SAURABH LAVANIA, J. 1. Heard learned counsel for the appellant and learned AGA for the State of U.P. as well as perused the record. 2. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellant namely Manoj Kumar s/o Ram Autar Resident of Jaitanpur, Hamlet of Khajohna, Police Station- Kachhauna, District- Hardoi challenging the judgment and order 21.12.2010 passed by the Special Judge, SC/ST Act/Additional Sessions Judge (F.T.C.), Court No. 5, Hardoi (in short "Trial Court") in Session Trial No. 1056 of 2004, arising out of Case Crime No. 12 of 2000, under Sections- 354, 323, 504, 506 IPC and Sections- 3(1)(x) and 3(2)(v) of SC/ST Act, P.S.- Kachhauna , District- Hardoi, thereby convicting and sentencing the appellant under Section 354 IPC for one year's rigorous imprisonment, under Section 323 IPC for six month's rigorous imprisonment, under Section 504 IPC for one year's rigorous imprisonment, under Section 506 IPC for one year's rigorous imprisonment and under Section 3(1)(X) SC/ST Act for one year's rigorous imprisonment alongwith fine of Rs. 300/- and default to pay the amount of fine further to undergo one month's rigorous imprisonment. All the sentences were directed to run concurrently. 3. The case of the prosecution as appears from the record, in nutshell, is to the effect that on 24.01.2000 at about 4.30 P.M. in the evening, the complainant/victim resident of Village- Jaitnagar, Majra Khajohna, Police Station- Kachhauna, District- Hardoi had gone to ease herself in an 'Arhar' field near the village, where the accused/appellant Manoj Kumar allegedly pushed her to the ground, assaulted her and molested her. Upon hearing the cries of victim, the villagers reached to the spot and therefore the accused fled away from there abusing and threatening the victim for dire consequences. 4. Based upon the written report of the incident, the FIR was registered as Case Crime No. 12/2000, under Sections- 354, 323, 504, 506 IPC and Section- 3(1)(XI) of SC/ST Act, P.S.- Kachhauna, District- Hardoi. 5. During investigation, the Investigating Officer (in short "IO") collected Versus Counsel for Appellant(s) : Yuga Raj Singh, B.P.Nigam, Dinesh Kr. Sharma Counsel for Respondent(s) : Govt. Advocate Manoj Kumar .....Appellant(s) State of U.P. .....Respondent(s) the documentary evidence, which includes medical evidence of victim and also reduced the statements of witnesses of prosecution in writing and the IO also prepared the site plan. 6. After completion of investigation, the IO filed the charge sheet against the accused/appellant under Sections- 323, 376, 504, 506 IPC and Section- 3(1)(XII) of SC/ST Act. 7. The Magistrate concerned thereafter committed the case to the court of sessions, where it was registered as Sessions Trial No. 1056/2004. The trial court based upon the evidence available on record framed the charges against the accused/appellant under Sections- 376, 323, 504, 506 IPC and Sections- 3(1)(v) and 3(1)(x) of SC/ST Act. The accused/appellant denied the charges therefore he was put to trial. 8. The prosecution to establish its case examined Chheda (PW-1), victim (PW-2), who proved the story of prosecution. Dr. Shakuntala Reddy (PW- 3), who proved medical report dated 29.01.2000 (Ext.Ka.-2) and supplementary medical report dated 01.02.2000 (Ext.Ka.-3). Retired Circle Officer B.N. Singh (PW-4), who proved the FIR (Ext.Ka.-4) and copy of G.D. (Ext.Ka.-5) and also site plan (Ext.Ka.-6) as well as charge sheet (Ext.Ka.-7). 9. That after closing of the evidence, statement of accused-appellant under section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story and the entire prosecution story was said to be wrong and concocted. 10. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, found the accused-appellant guilty and convicted him as above. 11. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal. 12. Learned counsel for the appellant submits that the accused-appellant has not been convicted previously for any offence and he is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of sentence. 13. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellant has not been convicted previously for any offence, the trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'). 14. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused- appellant. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving CRLA No. 23 of 2011 2 the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958. 15. Learned counsel for the accused-appellant submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained. 16. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958. 17. The accused-appellant has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the learned Trial Court should have recorded reasons for the same. 18. Learned counsel for the appellant submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellant submitted that it is upon the discretion of the Court to grant benefits in either of the Acts. 19. Learned counsel for the appellants further submitted that he does not want to press the appeal on merits. He has submitted that the incident took place about 25 years ago and there is no further criminal antecedent of the appellant. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and appellant may be extended the benefit of Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He further submitted that appellant is the first time offender and is not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellant. 20. Learned A.G.A. on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused- appellant has been rightly convicted. 21. Learned AGA appearing for the State does not dispute the fact that accused-appellant is the first time offender and were not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused- appellant and particularly, the time period which has lapsed since the date CRLA No. 23 of 2011 3 of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case. 22. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Act of 1958. 23. After considering the arguments advanced by the parties and after perusal of the material available on record, this court finds that except apart the merits of the case, so far as the prayer of learned counsel for the appellant for providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard. 24. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: "3. Power of court to release certain offenders after admonition .- "Where any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.-For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4. 4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a CRLA No. 23 of 2011 4 fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond." 25. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- "4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act." 26. Further, the Hon'ble Supreme Court in the case of Ved Prakash vs State of Haryana, (1981) 1 SCC 447 : AIR 1981 SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with Section 4 of Probation of Offenders Act, 1958 was pleased to observe as under:- "The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong CRLA No. 23 of 2011 5 approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act." 27. That it is also noteworthy that this Court in the case of Subhash Chand vs State of U.P; [2015 Law Suit (All) 1343, has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:- "It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellante courts. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance." 28. Further the Hon'ble Apex Court in State of Maharashtra vs Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659 has extended the benefit of Probation of Offenders Act, 1958 to the appellants, and observed as under:- "The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour." 29. That coming to the point of desirability of extending the benefit of Probation Act to the accused/ appellants in Sitaram Paswan and Anr v. State of Bihar, AIR 2005 SC 3534, Supreme Court held as under:- CRLA No. 23 of 2011 6 "For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India." 30. That it is also noteworthy that Hon'ble Apex Court in the case of Mohd. Hashim v. State of U.P and Ors., AIR 2017 SC page 660, was pleased to observe as under: "20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:- "The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act." 31. That Section 4 of the Act of 1958 is applicable where a person is found guilty of committing an offence where punishment is neither life sentence nor death. The Court may release such an accused on probation of good conduct on his furnishing a bond as mentioned in the Section. The Court in applying the provisions of this Section is also required to consider the circumstances of the case, character of the offender and CRLA No. 23 of 2011 7 nature of the offence before exercising its discretion. 32. A perusal of the aforesaid provisions of the Act of 1958 thus clearly indicate that Section 4 of the Act of 1958 does not create any distinction between the category of offenders and the provision of the said Section can be made applicable in any case where the offender is found guilty for committing an offence which is not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court as in the case of Smt. Devki Versus State of Harayana; 1979 (3) SCC 760 where the Hon'ble Supreme Court has held that benefit of Section 4 of the Act of 1958 could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni, the Hon'ble Supreme Court declined to extend the benefit of the Act of 1958 to an accused found guilty of gold smuggling. 33. The Hon'ble Apex Court in case of Jagat Pal Singh & others vs. State of Haryana, AIR 2000 SC 3622 has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months. 34. Similarly this Hon'ble Court in case of Virendra Kumar Vs State of U.P.; 2022(120)ACrC 392 has given benefit of probation while upholding the conviction of revisionist under section 7/16 of Food Adulteration Act and had released the accused persons on executing a bond before Magistrate for maintaining good behaviour and peace for period of six months. 35. Recently in the judgment passed in the case of Tarak Nath Keshari vs. State of West Bengal; 2023 SCC OnLine SC 605, the Hon'ble Apex Court after considering the provisions of Essential Commodities Act, 1955 (in short "Act of 1955"), extended the benefit of the Act of 1958 to the accused. The relevant paragraphs of the judgment are as under:- "10. However, still we find that a case is made out for grant of benefit of probation to the appellant for the reason that the offence was committed more than 37 years back and it was not pointed out at the time of hearing that the appellant was involved in any other offence. Before all the courts below, the appellant remained on bail. While entertaining his appeal, even this Court had granted him exemption from surrendering. Section 4 of the Probation of Offenders Act, 1958 has a non obstante clause. The same is extracted below: “4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to CRLA No. 23 of 2011 8 release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” 11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab; (2021) 2 SCC 763. CRLA No. 23 of 2011 9 12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence." 36. In Lakhvir Singh v. State of Punjab, (2021) 2 SCC 763 : (2021) 2 SCC (Cri) 96 : 2021 SCC OnLine SC 25, the Hon'ble Apex Court, in relation to punishment under Section 397 IPC, observed as under: "16. 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 [Ishar Das v. State of Punjab, (1973) 2 SCC 65 : 1973 SCC (Cri) 708. Ed.: Ishar Das decision is by a two-Judge Bench, the statutory provision in question was Section 16 of the Prevention of Food Adulteration Act, 1954. Section 16(1) provides for a minimum mandatory sentence and it was held in Ishar Das case that this would be subject to the non obstante clause in Section 4 of the 1958 Act.] , 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 v. Bahubali [CCE v. Bahubali, (1979) 2 SCC 279 : 1979 SCC (Cri) 447. Ed.: Bahubali decision is by a three-Judge Bench.] . 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. [State v. Ratan Lal Arora, (2004) 4 SCC 590 : 2004 SCC (Cri) 1353. Ed.: Ratan Lal Arora decision is by a two-Judge Bench which applies the principle laid down by the three-Judge Bench in Bahubali, (1979) 2 SCC 279:“that in cases where a specific enactment enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused.”Ratan Lal Arora case applied the above principle to hold benefit of the 1958 Act is not available in respect of conviction under Section 7 of the PC Act, 1988 providing for a minimum sentence of imprisonment, inter alia, the same having been enacted after the 1958 Act. See in particular para 12 of Ratan Lal Arora case.] It is in this context, it was observed in State of M.P. v. Vikram Das [(2019) 4 SCC 125 : (2019) 2 SCC (Cri) 20. Ed.: Vikram Das decision is by a two-Judge Bench and applies the principle laid CRLA No. 23 of 2011 10 down by the three-Judge Bench in Bahubali and followed in Ratan Lal Arora, in para 6, that where an enactment enacted after the Probation Act prescribes minimum sentence of imprisonment and the special Act contains any provision to enforce the same without reference to any other Act containing a provision in derogation of the special enactment, the provisions of the Probation Act cannot be invoked.] 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 IPC, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab [Joginder Singh v. State of Punjab, 1980 SCC OnLine P&H 172 : ILR (1981) 1 P&H 1] are in the same context." 37. It would not be out of place to state here that the High Court of Judicature at Madras in the judgment dated 01.02.2022 passed in Crl.R.C.No. 939 of 2019 (Nitin vs. State Rep by its Inspector of Police, TIW (East) Police Station, Coimbatore) extended the benefit of the Act of 1958 to the accused, who was convicted for the offences as indicated under Sections- 279 and 304A IPC. The relevant portion of the judgment reads as under:- "13. Section 3 of the Probation of Offenders Act, 1958 confers power upon the courts to release certain offenders after admonition. When a person is guilty of offence punishable for any offence with imprisonment for not more than two years or with fine or with both under the Penal Code 1860 or any other law and there is no previous conviction proved against such offender. The said legal provision is extracted hereunder for ready reference:- “3. Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition." 14. When the court empowered to try and sentence the offender to imprisonment declines to deal with him under Section 3 of the Probation of Offenders Act, 1958, the Appellate Court or the revisional court, as the case may be, i.e., either the Sessions Court or the High Court is empowered under Section 11(1) of the Act to make an order under this Act. It is relevant to extract Section 11(1) CRLA No. 23 of 2011 11 of the Act, which reads as under:- “11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.- (1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision." 15. It is relevant to note that the Hon-ble Apex Court, in several cases, has held that in case of motor accidents, rash and negligent driving should be taken serious note of and in number of cases, it has desisted from invoking the provisions of Probation of Offenders Act, 1958 However, in State vs. Sanjiv Bhalla (2015) 13 SCC 444, taking into consideration its earlier decisions, the Apex Court has held as under:- “11. Every accused person need not be detained, arrested and imprisoned liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry off with his head and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed. [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] Just sentencing is as much an aspect of justice as a fair trial and every sentencing Judge would do well to ask: Is the sentence being awarded fair and just? 12. In Ved Prakash v. State of Haryana [(1981) 1 SCC 447 : 1981 SCC (Cri) 182] this Court observed that: (SCC p. 448, para 1) "1.... [I]t is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant." A little later in the judgment, it was held that: (SCC p. 448, para 1) "1. [E]ven if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of Offenders Act." In other words, this Court was of the view that punishment should be rehabilitative and humanising and, therefore, need not necessarily be retributive in character. 13. Subsequently, in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1988 SCC (Cri) 984] this Court held that extending the benefit of probation to first~time offenders is generally not inappropriate. The humanising principle was extended even to a conviction under Part II of Section 304 IPC in State of Karnataka v. Muddappa [(1999) 5 SCC 732 : 1999 SCC (Cri) 1046] in which case the benefit of CRLA No. 23 of 2011 12 release on probation was granted to the convict. 14. The benefit of the provisions of Section 6 of the Probation of Offenders Act (relating to restrictions on the imprisonment of offenders below 21 years of age) [ "6.Restrictions on imprisonment of offenders under twenty-one years of age.- (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in sub-section (1), the court shall call for a report from the Probation Officer and consider the report, if any, and other information available to it relating to the character and physical and mental conditions of the offender."] was extended to persons convicted of attempted rape. This was in State of Haryana v. Prem Chand [(1997) 7 SCC 756 : 1997 SCC (Cri) 1176] which was followed in State of H.P. v. Dharam Pal [(2004) 9 SCC 681 : 2004 SCC (Cri) 1477]. 15. Similarly, in Om Prakash v. State of Haryana [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] the convicts, first-time offenders, were given the benefit of Section 360 and Section 361 of the Criminal Procedure Code and it was held that reasons ought to have been recorded for the denial of such a benefit. ["360.Order to release on probation of good conduct or after admonition.- (1) When any person not under twenty~one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in the meantime to keep the peace and be of good behaviour: Provided... (2)***(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Penal Code, 1860 punishable with not more than two years- imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature CRLA No. 23 of 2011 13 of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.(4)-(10) 361.Special reasons to be recorded in certain cases.- Where in any case the court could have dealt with (a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders,but has not done so, it shall record in its judgment the special reasons for not having done so."] The offence in that case was punishable under Section 323 and Section 325 read with Section 148 and Section 149 IPC. 16. 16. In the meanwhile, however, in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] this Court declined to give to the appellant, convicted of an offence punishable under Section 279 and Section 304~A IPC, the benefit of Section 4 of the Probation of Offenders Act ["4.Power of court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.(2) Before making any order under sub- section (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case.(3)-(5)] keeping in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families". It was held that: (Dalbir Singh case [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] , SCC p. 87, para 13):- "13. [C]riminal courts cannot treat the nature of the offence under Section 304~A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence." That decision, in which a cyclist was killed, resulted in a sentence of three months and one year respectively for the violation of the two CRLA No. 23 of 2011 14 sections mentioned above. That decision, in a sense, was a precursor to a stricter application by this Court of the provisions for releasing a convict on probation and went contrary to the grain of earlier decisions of this Court. 17. In Karamjit Singh v. State of Punjab [(2009) 7 SCC 178 : (2009) 3 SCC (Cri) 330] the convict, a first-time offender, was denied the benefit of release on probation in view of the gravity of the offence and a large number of injuries on the victim. The conviction in that case was for an offence punishable under Section 307 IPC and Section 27 of the Arms Act. That decision contains an inadvertent error, to the following effect: (SCC p. 185, para 26) "26. In Manjappa v. State of Karnataka [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76] this Court considered the scope of grant of relief under the provisions of Section 361 CrPC or under the provisions of the Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash v. State of Haryana [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] , and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remains absent as in a case of rash and negligent driving under Section 279 read with Section 304-A IPC." 18. As has been noticed above, Om Prakash [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] related to an offence punishable under Section 323 and Section 325 read with Section 148 and Section 149 IPC. Manjappa [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76] relates to the offences punishable under Sections 323, 325 and 504 IPC. There is no reference to any offence punishable under Section 279 or Section 304-A IPC. However, it appears that this Court desired to convey that an offence punishable under Section 279 and Section 304~A IPC is the result of an accident and is, therefore, not grave since there is an absence of mens rea. 19. Notwithstanding this, in State of Punjab v. Balwinder Singh [(2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] it was again held that the punishment for causing death by rash or negligent driving should be deterrent, in view of the frequency of such incidents. The accident in that case resulted in the death of five persons, and the punishment was six months- rigorous imprisonment with a fine of Rs 5000." 38. This Court also in the judgment dated 06.03.2020 passed in Criminal Appeal No. 2135 of 2008 (Rajjan vs. State of U.P.) granted the benefit to the accused, who was convicted for the offences as indicated under Sections- 147, 323/149, 325/149, 304(2)/149 IPC. The relevant portion of the judgment reads as under:- "8. The Hon'ble Apex Court in the case of State of Karnataka vs. Muddappa [(1999) 5 SCC 732] had considered the question as to whether the benefit of Probation of Offenders Act could be extended to an offence under Section 304 Part-II of the IPC and concluded CRLA No. 23 of 2011 15 that there is no statutory bar for application of Probation of Offenders Act to an offence under Section 304 Part II, where the maximum punishment is neither death nor imprisonment for life. The same view has been taken by the Hon'ble Supreme Court in the case of Mohd. Monir Alam vs. State of Bihar [(2010) 12 SCC 26], wherein their Lordships had given the benefit of Section 4 of Probation of Offenders Act to the appellant and directed the trial court to release the appellant under Section 4 of Probation of Offenders Act. 9. After hearing learned counsel for both the parties and going through the record, I find that the learned trial court has not given any special reasons as prescribed under Section 361 of Cr.P.C. as to why the benefit of Section 360 of Cr.P.C. and Section 4 of Probation of Offenders Act, has not been given to the appellants. It appears that all the appellants belong to the poor family and there is no criminal history against them. 10. Therefore, in view of the above discussion, I find that the sentencing order passed by learned trial court suffers from irregularity. It is admitted position between the parties that the appellants have been convicted under Section 304(II) I.P.C. read with Section 323 I.P.C. Maximum punishment under Section 304 (II) I.P.C. is ten years without fine and under Section 323 I.P.C. is one year without fine. 11. In these circumstances, I am of the opinion that provisions of Probation of Offenders Act, 1958 and Section 360 Cr.P.C. shall apply in the case and the appellants deserve to get the benefit of Section 4 of Probation of Offenders Act, 1958 and the purpose of justice will be served if the appellants would be sentenced to undergo imprisonment during which they were in custody for all the offences. 12. In view of the above facts and circumstances mentioned and also considering the scope of Section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the accused- appellants. However, they are granted the benefit of Section 4 of the Act. The accused-appellants are released on probation. The accused-appellants shall file personal bonds to the tune of Rs.20,000/- and they shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year. (a) In case of breach of any such condition, the accused- appellants will undergo the sentences passed by the Trial Court as per law. (b) The accused-appellants shall file the bonds within a period of one month from today." 39. From the judgment passed by the Hon'ble Apex Court in the case of Kanwar Pal Singh Gill v. State, (2005) 6 SCC 161, it is apparent that the appellant in the said case was convicted for the offences punishable under Sections 354 and 509 IPC. He was sentenced to undergo imprisonment for a period of three months and pay a fine of Rs 500 for the offence under Section 354; and for the offence under Section 509 IPC, punishment of simple imprisonment for a period of two months and a fine of Rs 200 were CRLA No. 23 of 2011 16 imposed on the accused. In the appeal preferred by the accused, the Sessions Judge confirmed the conviction, but altered the sentence and the accused was directed to be released on probation in lieu of custodial sentence. The fine was enhanced to Rs 50,000 with a further direction to pay half of it to the complainant. The accused challenged the same in the revision before the High Court. The High Court did not interfere with the conviction of the accused under Sections 354 and 509. However, the fine was enhanced to Rs 2,00,000 and the entire amount was directed to be paid to the prosecutrix. An amount of Rs 25,000 was directed to be paid as costs by the accused. The judgment of the High Court thereafter was challenged by the accused as well as the complainant before the Hon'ble Apex Court. The judgment passed by the Hon'ble Apex Court in the case of Kanwar Pal Singh Gill (supra) read as under:- "1. The appellant in Criminal Appeal No. 1032 of 1998 was found guilty of the offence punishable under Sections 354 and 509 of the Penal Code. He challenges his conviction and sentence in this appeal. Criminal Appeal No. 430 of 1999 has been preferred by the complainant in that case and she prays that the punishment imposed on the accused should be enhanced. Both the appeals are heard together and disposed of by this common judgment. 2. On 18-7-1988, a senior IAS officer, holding the post of Financial Commissioner and Secretary to the Government of Punjab, invited some of the IAS officers and IPS officer working at Chandigarh, for a dinner at 8.30 p.m. at his residence in Sector 16 of Chandigarh. Apart from the IAS and IPS officers, there were a few advocates, including the Advocate General of the State of Punjab and also some journalists and press correspondents working with some leading newspapers. The guests assembled around 8.30 p.m. Ladies were sitting in a semi-circle slightly away from the male guests. As per the allegation in the complaint preferred by the husband of the prosecutrix, the accused, who was then the Director General of Police of the State of Punjab, came and occupied a chair which was lying vacant at the place where the ladies were sitting. The accused then called out the prosecutrix and asked her to sit near him as he wanted to talk to her about something. When the prosecutrix was about to sit on the chair lying near the accused, the latter suddenly pulled the chair close to him and it is alleged that the prosecutrix felt slightly embarrassed and she managed to pull the chair back and sat on it. The accused again tried to pull the chair close to his chair whereupon the prosecutrix got up from the chair and returned to her original seat. The further allegation is that about ten minutes later, the accused came near the prosecutrix and asked her to come along with him. The prosecutrix strongly objected to his behaviour, but the accused was not prepared to change his tone and tenor and again he asked the prosecutrix to accompany him. The prosecutrix further alleged that she became frightened as the accused blocked her way and she tried to get away from the place whereupon the accused slapped on the posterior of the prosecutrix and the same was done in the presence of other guests. The prosecutrix then made a complaint to the host and told him that the behaviour of the accused was obnoxious and that he was not fit for decent company. The accused was then gently removed from the place. The prosecutrix made a complaint to the Joint Director, Intelligence Bureau, CRLA No. 23 of 2011 17 who was present there. The prosecutrix narrated the incident to her husband who was also present there. On the next day, that is 19-7-1988, the prosecutrix sought an appointment with the Chief Secretary and recounted the entire incident to him and requested him to take suitable action against the accused. The prosecutrix met the Advisor to the Governor of Punjab and gave a full and detailed account of the incident that had happened at the dinner party. The prosecutrix explained the incident to the then Secretary to the Governor and also met the Governor. On 29-7-1988 the prosecutrix gave a written complaint to the police and a case was registered, but no further steps were taken. After about four months, the husband of the prosecutrix filed a complaint before the Chief Judicial Magistrate, Chandigarh, alleging commission of offence punishable under Sections 341, 342, 352, 354, 355 and 509 IPC. Thereupon the accused preferred a criminal revision under Section 482 CrPC and the High Court quashed the complaint as well as further proceedings pursuant to the case registered by the police. The prosecutrix and her husband jointly challenged the verdict of the High Court before this Court and the judgment of the High Court was set aside and the Chief Judicial Magistrate was directed to take cognizance of the offence under Sections 354 and 509 IPC. The Chief Judicial Magistrate later framed the charges and after a full-fledged trial the accused was found guilty of the offence punishable under Sections 354 and 509 IPC. He was sentenced to undergo imprisonment for a period of three months and pay a fine of Rs 500 for the offence under Section 354; and for the offence under Section 509 IPC, punishment of simple imprisonment for a period of two months and a fine of Rs 200 were imposed on the accused. In the appeal preferred by the accused, the Sessions Judge confirmed the conviction, but altered the sentence and the accused was directed to be released on probation in lieu of custodial sentence. The fine was enhanced to Rs 50,000 with a further direction to pay half of it to the complainant. The accused challenged the same in the revision before the High Court. The High Court did not interfere with the conviction of the accused under Sections 354 and 509. However, the fine was enhanced to Rs 2,00,000 and the entire amount was directed to be paid to the prosecutrix. An amount of Rs 25,000 was directed to be paid as costs by the accused. The judgment of the High Court is challenged by the accused as well as the complainant. 3. The accused-appellant in Criminal Appeal No. 1032 of 1998 raised many contentions before us. The counsel for the appellant disputed the correctness of the findings on various grounds, and even the factual findings entered by the Court were seriously disputed. It was contended that no such incident had happened and this was part of a conspiracy to malign the appellant who had to take so many serious actions to control the activities of the militants which were at its peak during that time. It is alleged that the accused was able to control the militant operations of the terrorists and got commendations from the Government and other administrators and this was not liked by many top-ranking bureaucrats and as part of the conspiracy, the entire case was falsely foisted on him. It was also submitted by the appellant's counsel that the complaint itself was filed after a period of three months and the witnesses who were examined were all interested witnesses and most relevant witnesses who were CRLA No. 23 of 2011 18 alleged to have witnessed the occurrence were not examined. A pointed reference was also made to the non-examination of some of the witnesses cited by the prosecution. 4. It is true that there was some delay in filing the complaint before the Magistrate, but that by itself was not sufficient to reject the complaint put forward by the prosecutrix. It is important to note that she recounted the entire incident immediately to the Chief Secretary and other officers and raised objections and also sought for stringent action against the accused. When she failed in all these attempts, she and her husband filed a criminal complaint before the Chief Judicial Magistrate. There is nothing to suggest that the prosecutrix acted in connivance with some others and that she hatched a conspiracy to malign the accused. If the whole incident is viewed in correct perspective, it is clear that the behaviour of the accused on the date of the incident was not consistent with the high standard expected of a top-ranking police officer. The findings of the various courts is to the effect that the accused gently slapped on the posterior of the prosecutrix in the presence of some guests. This act on the part of the accused would certainly constitute the ingredient of Section 354 IPC. It is proved that the accused used criminal force with the intent to outrage the modesty of the complainant and that he knew fully well that gently slapping on the posterior of the prosecutrix in the presence of other guests would embarrass her. Knowledge can be attributed to the accused that he was fully aware that touching the body of the prosecutrix at that place and time would amount to outraging her modesty. Had it been without any culpable intention on the part of the accused, nobody would have taken notice of the incident. The prosecutrix made such a hue and cry immediately after the incident and the reaction of the prosecutrix is very much relevant to take note of the whole incident. The accused being a police officer of the highest rank should have been exceedingly careful and failure to do so and by touching the body of the complainant with culpable intention he committed the offence punishable under Sections 354 and 509 IPC. In view of the findings of fact recorded by the two courts and affirmed by the High Court in revision, the order of the High Court cannot be set aside on mere assertion by the accused that the whole incident was falsely foisted on him with ulterior motives. Therefore, we find no merit in the appeal preferred by the accused. The appeal is dismissed accordingly. 5. In the appeal preferred by the complainant, learned Senior Counsel Ms Indira Jaising contended that crimes against women are on the rise and the Court should have dealt with the matter severely and the accused should not have been released on probation. 6. The incident happened in 1988. Despite the accused holding a high position in the State police, the various courts found him guilty of the offence punishable under Sections 354 and 509 IPC and that by itself is setting a model for others and would enhance the faith in the judicial system. The accused had completed the period of probation. There was no occasion for any complaint or violation of any of the terms of the bond. At this juncture, we do not think that it is just and proper to resort to any other punishment. In our view, Criminal Appeal No. 430 of 1999 CRLA No. 23 of 2011 19 preferred by the complainant against the judgment of the High Court is without any substance and the same is dismissed accordingly. 7. The counsel for the appellant in this appeal submitted that the complainant has no intention of withdrawing Rs 2 lakhs ordered to be paid to her by way of compensation and that the amount may be given to any women's organisation engaged in doing service for the cause of women. The amount may be lying now in the court deposit with the High Court of Punjab and Haryana. We leave the matter to the Chief Justice of the High Court of Punjab and Haryana to deal with the said compensation amount in an appropriate manner as prayed for by the complainant. A copy of this judgment shall be sent to the Registrar of the High Court of Punjab and Haryana." 40. Further, in the case of Manjeet Singh vs. The State (Govt. of NCT of Delhi), decided on 08.10.2017 (Criminal Appeal No. 303/2017), the High Court of Delhi extended the benefit of Probation of Offenders Act, 1958 to an accused, who was convicted for the offence punishable under Section- 354 IPC. The relevant paragraphs of the judgment passed in the case of Manjeet Singh (supra) read as under:- "10. The underlying object of releasing offenders on probation is to facilitate their reintegration into society as law-abiding citizens, fostering self-reliance and aiding in their reformation. A testament to the importance of this provision is that the Supreme Court in Lakhvir Singh & Ors. Vs. State of Punjab & Anr., reported as (2021) 2 SCC 763, has extended the benefits of the Probation Act even to convicts who had not completed the mandatory minimum sentence of seven years as prescribed in Section 397 IPC, since IPC was enacted before the Probation Act came into being. The relevant extract is reproduced hereunder:- 16. A more nuanced interpretation on this aspect was given in CCE v. Bahubali. 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 M.P. v. Vikram Das 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 IPC, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab are in the same context. ......... 18. We, thus, release the appellants on probation of good conduct under Section 4 of the said Act on their completion CRLA No. 23 of 2011 20 of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence. 11. Pertinently, in the present case, Section 451 does not prescribe a mandatory minimum sentence. Though Section 354 IPC prescribes a mandatory minimum sentence of one year, it must not be lost sight of that the IPC, having been enacted prior to the coming into force of the Probation Act, must be read harmoniously with the latter statute. The bar on the application of the Probation Act arises only where a special statute enacted after 1958 prescribes a mandatory minimum sentence coupled with a non obstante clause. Thus, this Court retains discretion to extend the benefit of probation to the appellant, provided the circumstances justify such relief. 12. In the facts and circumstances of the present case, a gainful reference may also be made to the decision in Kanwar Pal Singh Gill Vs. State, reported as (2005) 6 SCC 161, wherein the Supreme Court upheld the grant of probation to an individual convicted under Section 354 IPC. 13. The nominal roll dated 17.09.2025 reflects that the appellant has undergone 3 months and 22 days of the sentence and has no other pending case or prior conviction. His conduct in jail is reported as satisfactory. The appellant is a married man, aged 37 years, supporting his wife, two minor children, and aged parents, and is engaged in private employment earning Rs. 32,000/- per month. The Probation Officer has specifically submitted that the appellant may be considered for release on probation. 14. Bearing in mind that a portion of the testimony of the prosecutrix was partly disbelieved to the extent that there were material improvements, as already noted hereinabove, and keeping in view the overall facts and circumstances of the case, this Court is of the considered view that no purpose would be served by requiring the appellant to undergo further incarceration. The underlying object of the Probation Act, being to reform and rehabilitate first-time offenders, would be best served by affording the appellant an opportunity to prove his reformation. 15. Accordingly, while upholding the judgment of conviction dated 16.02.2017 and the order on sentence dated 21.02.2017, the sentence imposed on the appellant is modified to the extent that he is granted the benefit of probation under Section 4 of the Probation Act for a period of 9 months, on his furnishing a personal bond in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the Trial Court within a period of four weeks from today. 16. The appellant shall remain under the supervision of the concerned Probation Officer for a period of 1 year, and shall report before the Probation Officer once every month. It is made clear that in the event of any breach of the conditions of probation or involvement in any other CRLA No. 23 of 2011 21 offence during this period, the benefit granted under this order shall stand revoked, and the appellant shall be liable to undergo the remaining portion of the sentence as awarded by the Trial Court." 41. That it is noteworthy that the incident took place way back in the year 2000. The accused-appellant has suffered in the matter for the past about 25 years and there is no any criminal antecedent of him during these years, as stated and which has not been disputed. 42. Upon due consideration of the facts of the case including the case of the prosecution, as set up in the FIR, and also the period lapsed from the date of incident i.e. about 25 years and the sentence awarded by the trial court under Sections 354, 323, 504, 506 IPC and Section 3(1)(x) SC/ST Act, I am of the view that the benefit of provision of the Act of 1958 should be provided to the accused/appellant. It is for the following reasons:- (i) In so far as conviction of the appellant for the offences as indicated under Sections 354, 323, 504, 506 IPC IPC is concerned, after considering the facts narrated in the FIR and the statement(s) of witnesses of prosecution, this Court is of the view that the trial court has not committed any error in convicting the appellant, as they supported the story of prosecution before the trial court. (ii) In so far as the offence under Section 3(1)(x) of SC/ST Act is concerned, this Court finds that the same is not made out for the reasons that:- (a) Witness Chheda produced before the trial court has not established/proved the offence under Section 3(1)(x) of SC/ST Act, who could have proved/established that the casteist remarks were made by the appellant against the victim ‘within public view’. (b) The FIR indicates that at the time of incident, independent member of public was not present. 43. In view of above, the conviction of the appellant under Section 3(1)(x) of SC/ST Act is set aside and is maintained for the offence under Sections 354, 323, 504, 506 IPC IPC, but the sentence is modified. Instead of sending the appellant to jail, he is given the benefit of Section 4 of the Probation of Offenders Act, 1958 and, therefore, is released on probation and is directed to file two sureties each to the tune of Rs.20,000/- along with personal bonds before District Probation Officer concerned and also an undertaking to the effect that he shall maintain peace and good behavior during the period of one year from today. The said bonds are to be filed by the appellant within a period of three months from the date of this judgment. 44. The accused-appellant within the aforesaid period shall also deposit the amount of fine, as imposed in the judgment under appeal, if the same has not been deposited till date. 45. In case of breach of any of the above conditions, the appellant shall be taken into custody and shall have to undergo sentence awarded to him. CRLA No. 23 of 2011 22 46. With the above modification, the instant criminal appeal is partly allowed. 47. A certified copy of the order be also sent to the court concerned for compliance. 48. Office is directed to communicate this order to the court concerned for necessary compliance. 49. Trial court record shall also be sent back to the district court concerned. December 9, 2025 Arun/- CRLA No. 23 of 2011 23 (Saurabh Lavania,J.) Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench