Gujarat High Court
Nisrin Mustafa Merchant vs State Of Gujarat on 16 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/343/2026 ORDER DATED: 16/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 343 of 2026
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NISRIN MUSTAFA MERCHANT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
MR VIRAT G POPAT(3710) for the Respondent(s) No. 2
MR MANAN MAHETA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/04/2026
ORDER
1. The application under Section 11(4) of the Probation of Offenders Act, 1958 (hereinafter referred to as "the Act") read with Section 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "BNSS") against the judgment and order dated 28.3.2023 passed by the learned 3rd Additional District Judge, Surat in Criminal Appeal no.102 of 2018 challenges the probation granted to the accused under Section 4 of the Act.
2. The case of the applicant in the complaint was that respondent no.2 - a Doctor who was running a clinic, the applicant had gone for getting medicines of her husband Page 1 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined changed who was suffering from mental illness, the complainant alleged that the respondent no.2 asked her about her personal life and had put some obscene questions and against the wish of the applicant forcefully restrained her in arms, kissed her cheek and sexually harassed and committed grave offence.
3. Mr. Krunal Shah, learned advocate for the applicant referring to the judgment in the case of Ajahar Ali v. State of West Bengal, (2013) 10 SCC 31 as well as in the case of State of Rajasthan v. Sri Chand, (2015) 11 SCC 229, submitted that outraging the modesty of a woman is a heinous crime, where no benefit of the Act should be granted and submitted that being a heinous offence, impugned judgment and order granting probation under Section 4 of the Act be quashed and set aside. The respondent no.2 was convicted by the learned JMFC, Surat in Criminal Case no. 65011 of 2013 for a period of six months and fine of Rs.2,000/-, and in default of payment of fine, one month simple imprisonment by judgment and order dated 26.4.2018. Aggrieved by the said order, the accused had preferred Criminal Appeal no.102 of 2018 before the District and Sessions Judge, Surat. Learned advocate Mr. Shah has submitted that the original Page 2 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined complainant was not a party to the appeal. After hearing the appeal, the learned 3rd Additional District Judge called upon the report under Section 4 of the Act and while confirming the order passed by the learned JMFC, Surat dated 26.4.2018 in Criminal Case no.65011 of 2013, granted probation under Section 4 of the Act by directing the accused to execute a bond of Rs.10,000/- towards good behaviour and conduct for six months before the concerned Police Station and by modifying the conviction granted probation. 3.1 Mr. Shah submitted that against that order, the complainant had preferred Criminal Appeal no. 2371 of 2025, but during the course of of hearing, the applicant came to know that against the order granting benefit under Section 3 or 4 of the Act by the learned Appellate Court, then, revision under Section 11(4) of the Act would lie and not the appeal and therefore, Court had permitted the applicant - complainant to withdraw the appeal with a liberty to file Criminal Revision Application and vide order dated 23.9.2025, Criminal Appeal no.2371 of 2025 was withdrawn and hence, the present Criminal Revision Application.
4. Countering the arguments, learned advocate Mr. Popat, relying upon the judgment in the case of passed by the Page 3 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined Division Bench of this Court in State of Gujarat v. Ayub Ganibhai Odiya, 2016 LawSuit (Guj) 2348 and the judgment in the case of Chellammal & Anr. v. State represented by the Inspector of Police, 2025 LiveLaw (SC) 461, submitted that the Court has, under the Act, no discretion to deny the probation under the Act when the statutory conditions are met imposing the mandatory duty to consider release on probation and stated that the judgments, which have been referred by learned advocate Mr. Shah, are under consideration of the minor victims, while here the facts of the case itself suggest that it was a deliberate act of the applicant-complainant herself to entrap the Doctor and there is no corroboration of the complaint and further submitted that the Sessions Court had modified the judgment of conviction passed by the Trial Court and had granted probation to the accused.
5. The appeal was allowed on 28.3.2023 by the learned 3 rd Additional District Judge, Surat, whereby confirming the judgment and order of conviction passed by the learned JMFC, Surat in Criminal Case no. 65011 of 2013 dated 26.4.2018, passed the order for probation in following terms:- Page 4 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026
NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined "3. The order of substantive sentence is hereby altered and the appellant / accused is hereby released on probation u/s.4 of the Probation of Offenders Act on execution of bond of Rs.10,000/- (Rupees Ten Thousand Only) for good behaviour and conduct for a period of six months before the concerned Police Station. The appellant shall be under observation of Probation Officer for Six Months from date of this order.
4. The appellant / accused shall remain in supervision for good conduct for the said period of Six Months, and the sentence imposed on him, as per the impugned order, shall remain suspended during that period.
5. It is further directed that in the event of any breach, he shall appear, and shall be required to receive the said sentence during such period, as may be directed by the concerned Court.
6. Necessary Yadi be sent to the concerned Probation Officer."
6. The present Revision Application was presented on 1.11.2025, which would mean that the Revision Application is after a period of about two years and almost six months. The appeal which was filed by the complainant was withdrawn. It is not the case that the complainant was permitted to convert her appeal to Criminal Revision Application. The appeal, which came to be withdrawn, was granting a liberty to file Criminal Revision Application observing that the Criminal Appeal was not maintainable.
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NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined
7. The present Revision Application was filed with Criminal Misc.
Application (for condonation of delay) no. 23134 of 2025, where the Coordinate Bench of this Court, vide order dated 29.1.2026, has condoned delay of 859 days under Section 5 of the Limitation Act and considering that cause, which has occurred in preferring the Revision Application, has been sufficiently explained.
8. The learned Appellate Court has, after having considered the facts of the case, had confirmed the order of conviction granting probation for a period of six months. The report of the Probation Officer was called and the accused was put under the supervision for good conduct for the said period of six months and the sentence imposed upon the accused, as per the order of the Trial Court, was suspended during that period. Nothing adverse has been brought on record to show that the Probation Officer has reported of any breach from the side of the accused. The accused have already undergone the probation period.
9. The facts of the case suggest that the complainant was visiting the accused - Doctor for the treatment of her husband who was mentally ill. Learned advocate Mr. Popat submitted Page 6 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined that the Trial Court's observation would be without any corroboration of such allegation and if the evidence of the person who had accompanied the complainant that Huzefa Motiwala is considered, then, the victim was deliberately approaching the Doctor, and on her own will, had arranged a trap, which Mr. Popat submitted that she was not legally permitted to do so. Commenting upon the conduct of Lok Rakshak who had gone along with the complainant who Mr. Popat stated was involved in honey trap cases and thereafter, was suspended from the service of Lok Rakshak, had managed the trap.
10. The observation of the Hon'ble Supreme Court in the case of Chellammal (supra) in Paragraph 28 would require a specific mention, where the Hon'ble Supreme Court has observed as under:-
"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 sub- section (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 Page 7 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined 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."
11. In the Division Bench judgment in the case of Ayub Ganibhai Odiya (supra), the appeal was preferred by the State against the order of granting the benefit to the accused under the Act and Section 360 of Cr.P.C. passed by the Sessions Court. The conviction was under Section 354 of IPC. Having considered the provision of Section 4 of the Act and Section 360 of Cr.P.C., the appeal came to be dismissed considering lapse of time from the commission of offence and the hearing before the Court, observing that benefit granted to the accused on probation of the learned Trial Court Judge would not be fit to be disturbed by the High Court.
12. It is an admitted position that it is not the case reported against minor under the Protection of Children from Sexual Offences Act, 2012 or Indian Penal Code, 1860. Prior to the amendment in Cr.P.C. dated 31.12.2009, under Section 320 Page 8 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026 NEUTRAL CITATION R/CR.RA/343/2026 ORDER DATED: 16/04/2026 undefined in Second Schedule, Section 354 was considered to be a compoundable offence. Here, in the present matter, the accused had already undergone the probation period and the revision has been filed after a delay of two and a half years by the complainant. Taking into consideration this fact of the probation undergone by the accused and that revision has been filed after a very late stage challenging the order of learned Additional District Judge, Surat putting the accused under the supervision of the Probation Officer for a period of six years dated 28.3.2023, this Court only on the ground that there is a delay in challenging that order and when the accused had already complied with the order of the learned Appellate Court does not find any reason to interfere with the impugned order in the revisional jurisdiction. Hence the Revision Application stands rejected.
(GITA GOPI,J) Maulik Page 9 of 9 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:23:18 IST 2026