Delhi District Court
Abhishek vs The State on 12 May, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 65/2020 (RBT 48/22)
IN THE MATTER OF:
Abhishek
S/o Late Robinson Warris
R/o H.No. 3/691, Dakshin Puri,
New Delhi.
............Appellant
Versus
The State
(Govt. of NCT of Delhi)
..........Respondent
Instituted on : 12.03.2020
Reserved on : 20.04.2023
Pronounced on : 12.05.2023
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 374(3) Cr.P.C preferred on behalf of appellant Abhishek against the impugned judgment dated 06.02.2020 and order on sentence dated 17.02.2020 passed by Ld. MM-04, Mahila Court, Saket in case FIR No. 206/2018 PS Ambedkar Nagar whereby the appellant herein was convicted for the CA. No. 65/2020 Abhishek Vs. State Page No. 1 / 19 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2023.05.12 16:56:32 +0530 offences U/s 342/354/354A/354B IPC and was sentenced accordingly.
2. Briefly stated the facts as per record are as under:-
On the intervening night of 12.05.2018 and 13.05.2018, a call regarding quarrel was received by way of DD No. 9B dated 13.05.2018 PS Ambedkar Nagar whereupon, the police officials reached at the spot i.e., at Dhan Devi Charitable Hospital. The complainant 'K' (her identity and name is not being disclosed to protect her identity) met them and she had given her written complaint against the appellant herein. On the said complaint, an FIR No. 206/2018 U/s 354/354B IPC was lodged against the appellant. During the course of investigation, statement U/s 164 Cr.P.C of the complainant was recorded before Ld. Magistrate. After completion of the investigation, charge-sheet for the offences U/s 354/354A/354B/342/451/506 IPC was filed against the appellant on 10.07.2018. Cognizance was taken by Ld. Magistrate on the same day.
Appellant herein was summoned as an accused for 31.08.2018. He put his appearance alongwith his counsel on the said day and copy of charge- sheet was supplied to him U/s 207 Cr.P.C. Charge for the offences U/s 354/354A/509/354B/342/451/506 IPC was framed against him vide order dated 13.11.2018. Statement of appellant was also recorded U/s 294 Cr.P.C whereby he admitted the factum of registration of FIR and recording of statement of complainant U/s 164 Cr.P.C. Due to that, PWs ASI Raghunath Giri and Ms. Prabhdeep Kaur Ld. MM were dropped from the list of witnesses. The prosecution has examined following five witnesses in support of its case:-
PW-1 is Ct. Narender Kumar who has accompanied the IO to the CA. No. 65/2020 Abhishek Vs. State Page No. 2 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
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spot on receiving DD No. 9B and proved the said DD as Ex.PW1/B. He also proved the arrest memo of appellant as Ex.PW1/A and his disclosure statement as Ex.PW1/C. PW-2 is Ms. Geeta. She was with the complainant on the fateful night during the incident. She has deposed on the line of her statement U/s 161 Cr.P.C.
PW-3 is Ms. 'K', the complainant and the star witness of this case. Her testimony also shall be discussed later on.
PW-4 is the IO/ASI Pritam Singh. He has gone to the spot after receiving DD No. 9B dated 13.05.2018, PS Ambedkar Nagar alongwith PW-1 Ct. Narender Kumar. He has proved his endorsement on the written complaint of complainant 'K' as Ex.PW4/A. He has also proved personal search memo of accused/appellant as Ex.PW4/B and site plan prepared at the instance of complainant as Ex.PW4/C. PW-5 is Sh. Kamal Taneja, owner of Dhan Devi Charitable Hospital where the alleged incident took place. He had handed over the CCTV footage of the incident alongwith certificate U/s 65B Indian Evidence Act as Ex.PW5/A.
3. After the recording of testimony of prosecution witnesses, statement of accused/appellant Abhishek U/s 313/281 Cr.P.C was recorded. He pleaded his innocence in the said statement and stated that the complainant was in a relationship with him due to which verbal quarrel occurred between them. He stated that the complainant had called him one day before the alleged incident over phone and told him that she had got engaged for getting married on this, he told her that he will not Cr CA. No. 65/2020 Abhishek Vs. State Page No. 3 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
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Rev 12/2022speak to her anymore. Then on 12.05.2018 at around 9:00- 9:30 PM, the complainant called him from an unknown mobile number telling him that it was her new number. She started crying and told him that she wanted to meet him and it was she who had called him to the hospital to meet her. He also stated that he had knocked once when he came to the hospital and asked the door to be opened whereupon Ms. Geeta had opened the door. He also stated that the door of the room was not closed by him rather same got automatically closed. Further, as per him, he alongwith the complainant had asked PW-2 Ms. Geeta to leave the room as complainant was raising hue and cry. He further stated that he was not aware that complainant had called the police. He came to know about it later on when she had called his sister Ritu to tell her that they had had a quarrel and she had called a police. He also stated that he has been falsely implicated in this case. He further stated that he did not commit any offence as alleged and that Ms. Geeta being friend of complainant had supported her. He also stated that the complainant had gotten engaged despite being in relationship with him due to which verbal quarrel occure and she took advantage to that to file a false case against him. He did not lead any evidence in his defence despite opportunity having been granted.
4. Thereafter, arguments were heard from both the sides by Ld. Magistrate and vide order dated 06.02.2020, appellant herein was convicted for the offences U/s 342/354/354A/354B IPC. He was acquitted for the offences U/s 451/506/509 IPC vide same judgment. Vide order dated 17.02.2020 the convict was sentenced as under:-
CA. No. 65/2020 Abhishek Vs. State Page No. 4 / 19 Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
2023.05.12 16:56:52 +0530 (I) For the offence U/s 342 IPC, he was sentenced to simple imprisonment for one year.
(ii) For the offence U/s 354 IPC, he was sentenced to simple imprisonment for one year alongwith fine of Rs. 500/-. In default of payment of fine he was sentenced to simple imprisonment for three days.
(iii) For the offence U/s 354A IPC, he was sentenced to simple imprisonment for one year.
(iv) For the offence U/s 354B IPC, he was sentenced to simple imprisonment for one year alongwith fine of Rs. 500/-. In default of payment of fine he was sentenced to simple imprisonment for three days.
5. The appellant deposited total fine of Rs. 1,000/- vide receipt no. 0972203 on the same day. Thereafter, application U/s 389 Cr.P.C for suspension of sentence and grant of bail till filing of appeal was filed on behalf of convict which was allowed by Ld. Magistrate and he was granted bail for a period of 30 days. Afterwards, the appeal U/s 374 Cr.P.C was filed on his behalf on 12.03.2020 wherein an application U/s 389 Cr.P.C praying for suspension of sentence was moved on his behalf and said application was allowed by Ld. Predecessor subject to furnishing of bail bonds in the sum of Rs. 20,000/- with one surety in the like amount before Ld. Trial Court.
6. Ld. Predecessor had issued notice of appeal to the complainant which was duly served however, no appearance was made on her behalf.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.12
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7. Arguments heard.
The impugned judgment has been assailed by the appellant on following grounds:-
(i) The appellant was in a relationship with complainant 'K' for more than two years.
(ii) The complainant was engaged with another person by her family members despite their relationship.
(iii) The appellant had gone to the hospital where the complainant 'K' was working on the fateful night at her instance only.
(iv) No such incident as alleged ever took place. It was merely a verbal quarrel between them which was used by the family members of the complainant to falsely implicate him in this case.
(v) The complainant 'K' was remorseful and had apologized to him later on stating that this case was lodged at the instance of her family members.
8. Ld. Counsel for the appellant has argued that this is a classic case of a relationship having gone wrong. It was argued that this false case has been registered by the complainant at the instance of her family members. There was a romantic relationship between both of them for a period of more than 2 years and she has even attended one family function of the appellant. Their relationship was known to the parents of both of them. It has been argued that it has come in the cross-examination of the complainant/PW-3 that she had apologized to appellant after FIR was lodged and also that after lodging of FIR, she had spoken to him over phone and Whatsapp. It was argued that in case, the appellant has CA. No. 65/2020 Abhishek Vs. State Page No. 6 / 19 Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.05.12 16:57:06 +0530 committed the offences as alleged then there was no occasion for the complainant to still contact him or talk to him in any manner whatsoever. This shows that no such incident took place and that the appellant has been made a scapegoat by the complainant 'K' at the instance of her family members. He has prayed that the impugned judgment may be set- aside and the appellant herein may be acquitted. Ld. Counsel for appellant has also relied upon the judgment of Hon'ble Supreme Court titled as Pandurang Sitaram Bhagwat Vs. State of Maharashtra, Crl. Appeal No. 1513/2004. In the alternative, Ld. Defence Counsel has moved an application U/s 360 Cr.P.C praying for release of appellant on probation. It has been argued that appellant is a young man with no previous involvement of any nature. He had spent more than a month in JC immediately after registration of FIR in the year 2018. He has got married this year and in case, he is sent behind bars, his family will suffer a lot as he is the only bread earner in his family. On this point, following judgments have been relied upon:-
(i) Nanne Khan vs. State of Rajasthan 1999(4) Crimes 105.
(ii) Dilshad Ahmad Vs. The State (Govt. of NCT) Crl. Appeal No. 741/2018.
(iii) Rattan Lal Vs. State of Punjab AIR 1965 SCR (7) 676.
(iv) Munna @ Jabir Vs. State of U.P. Crl. Appeal No. 708/2013.
(v) Sitaram Paswan Vs. State of Bihar AIR 2005 (SCW) 3534.
9. Ld. Addl. PP for the State has supported the impugned judgment and has stated that Ld. Magistrate has passed the same after considering the entire material on record. It was also argued that the impugned CA. No. 65/2020 Abhishek Vs. State Page No. 7 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
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judgment does not suffer from any illegality. On the point of alternative prayer of defence regarding release of appellant on probation, it was submitted by him that the offence U/s 354 IPC provides minimum punishment of one year imprisonment and in view of that, he cannot be released on probation.
10. I have considered the submissions from both the sides alongwith record.
As mentioned earlier, the appellant has been convicted vide impugned judgment for the offence U/s 342/354/354A/354B IPC.
Section 342 IPC provides as under:-
342. Punishment for wrongful confinement:-
Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 354 IPC provides as under:-
354. Assault or criminal force to woman with intent to outrage her modesty:- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.] Section 354A IPC provides as under:-
354A. Sexual harassment and punishment for sexual harassment:-
1. A man committing any of the following acts:-CA. No. 65/2020 Abhishek Vs. State Page No. 8 / 19
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(i) Physical contact and advances involving
unwelcome and explicit sexual overtunes; or
(ii) a demand or request for sexual favours: or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harasment.
2. Any man who commits the offence specified in clause(i) or clause(ii) or clause(iii) of sub- section(1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause(iv) of sub-section(1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 354B IPC provides as under:-
354B. Assault or use of criminal force to woman with intent to disrobe:- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
11. PW-3 is the complainant and star witness to prove this case. PW-2 Ms. Geeta is a also a material witness as she was present at the spot during the alleged incident.
PW-3 in her testimony dated 09.09.2019 stated as under:-
"On the intervening night of 12.05.2018 and CA. No. 65/2020 Abhishek Vs. State Page No. 9 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
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13.05.2018 at about 2:00AM to 2:00 PM the accused called me and I was on duty at Dhan Devi Charitable Hospital as a nurse. The accused told me on phone that he wants to meet me but I refused to meet him. Thereafter, accused came to the hospital and started knocking the door. He asked me to open the door and said that "kundi kholo mujhe baat karni hai" and I said that I will talk in a day time but he was continuously asking. Thereafter, I opened the door at t hat time my co- staff Geeta was also present at the spot. The accused asked Geeta to leave the premises as he wants to talk to me. Geeta said where will I wait outside but accused said "I just want to talk for 2 minutes you please wait outside"
The moment Geeta left premises the accused locked the door from inside. He started molesting me and start pulling my clothes.
Accused told to me in the room that "shadi se phle aap mere sath sex karoge." The accused had kept his hand in my breast from inside the kurta. At that time I was wearing the blue kurti and black legging. At that time accused was above me. Thereafter, I pushed him and raised the alarm and I told the accused that I am going to tell the incident to Dr. Kamal Taneja then the accused told me that "terr pas jitna paise hai utna laga le lekin mera kuch bhi nahi bigad payegi aur tu bateygi mujhe" and he ran away from the spot.
Thereafter, I narrated this incident to Dr. Kama Taneja Sir and Geeta. Thereafter, Sir asked me to file complaint before the police and I made 100no. Call and to my family members also. My mother, brother and my landlord also came to hospital. Thereafter, police officials reached the spot and I narrated the incident to them.
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Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.12
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Thereafter, we went to PS and gave a written complaint to the police officials. At that time, I was not in a position to write as I was in shock and traumatized and Geeta wrote the complaint on my behalf. I am aware of the contents of the complaint which is exhibited as Ex.PW3/A bearing my signature at point A. Thereafter, FIR was registered. My statement U/s 164 Cr.P.C was recorded which is exhibited Ex.PW3/B."
(emphasis supplied)
12. Perusal of testimony of complainant reproduced above reveals that as per her, appellant herein came to the hospital on the intervening night of 12.05.2018 and 13.05.2018 despite her having refused to meet him on a call made by him earlier. The appellant has denied having called the complainant however, he had admitted that he had gone there on the fateful night. There is also no dispute to the fact that on reaching the hospital, appellant started knocking the door. There is also no dispute to the fact that PW-2 Ms. Geeta was present alongwith PW-3/complainant inside the room at the hospital. Thereafter, there is minor inconsistency on the point as to who opened the door. As per PW-3, the door was opened by her whereas PW-2 has deposed that she had opened the door on being asked by PW-3. There is again an inconsistency on the point as to who asked PW-2 Ms. Geeta to leave the room. As per PW-2 and PW-3, the appellant asked her to do so whereas as per appellant, they both i.e., he alongwith PW-3 asked her to leave the room. Similarly, there are different versions on record as to who locked the door from inside thereafter. As per PW-2, both PW-3 and appellant had closed the same, however, she must have deposed so because she could not have known this fact while CA. No. 65/2020 Abhishek Vs. State Page No. 11 / 19 Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.05.12 16:57:46 +0530 standing outside the room. PW-3 stated that the room was locked by the appellant. The appellant stated in his statement U/s 313 Cr.P.C that the door was automatically closed however, he did not clarify as to who locked/bolted the same from inside. The FIR in question was lodged for the incident which happened thereafter within the four corners of that room. Appellant herein was also convicted for offences in question for that incident. Whatever transpired there could be in the knowledge of only two individuals i.e., the complainant/PW-3 'K' and the appellant herein. PW-3 'K' has mentioned in detail about the incident in her testimony which has been emphasised while being reproduced above. In the said portion, the victim has specifically mentioned that after locking the door from inside, appellant started molesting and pulling her clothes. She also deposed about the appellant having told her there to have sex with him before marriage. She further categorically stated that he had kept his hand on her breast from inside the kurta and he was above her. She also stated that she pushed him, raised the alarm and told him that she will tell about the incident to Dr. Kamal Taneja (PW-5, owner of the hospital) whereupon he ran away.
13. Surprisingly, no suggestion was given to the victim in her entire cross-examination that no such incident as alleged by her, took place. It appears that defence was concentrating on proving only one thing i.e., they were in relationship before the alleged incident and it was she who called him at the spot. Even if, these facts are held as proved (the victim has admitted the fact that they were in relationship for around 2.5 years in her cross-examination), then also same would not be of any help to the CA. No. 65/2020 Abhishek Vs. State Page No. 12 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
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case of appellant. Merely because, she had called him to the hospital for any reason whatsoever, does not give him any license to indulge in the inappropriate behaviour with the victim. Being in a relationship with a girl does not mean that the boy can force himself upon her despite her clear refusal. Defence has tried to portray that the complaint in question was not filed by the victim on her own rather same was so filed by her due to parental pressure and for that reason, she even apologized to the appellant over phone and Whatsapp. The victim has clearly denied the suggestion regarding having been forced to file the complaint against the appellant. She accepted that she had apologized to him and had also spoken to him over phone and Whatsapp. She volunteered to state that this was done after the appellant had remained in JC. This admission is also not going to serve any purpose as far as this appeal is concerned. It has not come on record as to for what, she had apologized to him. Defence should have got clarified this aspect in the cross-examination of the victim which it has miserably failed to do. As mentioned earlier also, no suggestion was given to the victim that no such incident ever took place, so her apology to the appellant after he was released from JC without there being anything more, will not absolve him from the consequences of the incident in question.
14. There is another dimension to this aspect. As per the testimonies of PW-2 and PW-3, they both alongwith Dr. Kamal Taneja (PW-5) were present in the hospital at the time of alleged incident. It is not the case of prosecution and for that matter, even of defence that the family members of the victim were also present at that time. As per DD No.9B dated CA. No. 65/2020 Abhishek Vs. State Page No. 13 / 19 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2023.05.12 16:58:01 +0530 13.05.2018, PS Ambedkar Nagar, the call to police at 100 no. was made from the mobile number 8800XXXX93. This mobile number has been mentioned in the complaint given to the police Ex.PW3/A and was also admitted by her as her mobile number in cross-examination. As per PW-2, the call to police was made by the victim. PW-3 had deposed that the call was so made by her to police as well as her family members whereas in her cross-examination, she stated that the call at 100 no. was made by her parents. In case, no such incident as alleged had took place at that time, there was no occasion for the victim to call the police or her parents. Her action in calling the police/her parents alongwith the fact that she had informed PW-5 Mr. Kamal Taneja before that about her being harassed by the appellant is indicative of the fact that the appellant had crossed his limits.
15. Having said that, it will have to be examined as to whether the prosecution has proved the case against the appellant for all the offences U/s 354/354A/354B/342 IPC beyond reasonable doubts for which Ld. Magistrate has convicted him. As mentioned earlier, as per the testimony of victim/PW-3, the appellant had locked the door from inside after entering the room where the victim was present alongwith her colleague. She has also deposed that he had kept his hand at her breast from inside the kurta and he was above her at that particular moment. So, the offences U/s 354/354A/342 IPC are clearly proved beyond reasonable doubt. There are some minor inconsistencies as discussed earlier which are not enough to doubt the case of prosecution. The judgment of Hon'ble Apex Court in Pandurang Sitaram Bhagwat Vs. State of Maharashtra, Crl. Appeal CA. No. 65/2020 Abhishek Vs. State Page No. 14 / 19 Digitally signed SUNIL by SUNIL GUPTA GUPTA 2023.05.12 Date:
16:58:10 +0530 No. 1513/2004 is distinguishable on facts.
16. However, this Court is of the view that the prosecution has failed to prove the case U/s 354B IPC against the appellant. As per Section 354 B IPC, a man can be convicted for the said offence if he assaults or uses criminal force to any woman with the intention of disrobing her or compelling her to be naked. In the present case, the only evidence which has come on record pertaining to that offence is in the form of one line in the testimony of PW-3 wherein she stated that he started molesting me and started pulling my clothes. So as per the prosecutrix, after entering the room after PW-2 Geeta has left from there, the appellant bolted the room from inside and started pulling her clothes. It is not clear as to which of the clothes worn by the victim at that particular time, were being pulled by the appellant. It is also not clear as to whether he had succeeded in removing any of those clothes or not. The statement of the prosecutrix regarding this particular aspect is quite vague in nature and it appears that same is not sufficient for convicting the appellant for this offence. It is also to be noted that offence U/s 354B IPC is grave in nature as compared to Section 354 & 354A IPC so the burden to prove the same beyond reasonable doubt was higher on the prosecution which it has miserably failed to discharge. Accordingly, the appellant Abhishek stands acquitted for the offence U/s 354B IPC.
17. Considering the above discussion, the appellant Abhishek stands convicted for the offences U/s 354/354A/342 IPC. He is acquitted for the offence U/s 354B IPC.
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18. Coming to the point of sentence to be imposed on him, an application U/s 360 Cr.P.C moved on behalf of appellant is on record. The judgment of Hon'ble Apex Court in Lakhanlal @Lakhan Singh Vs. State of Madhya Pradesh Crl. Appeal No. 1306/2013 is relevant here. In said judgment, the question before Hon'ble Apex Court was as to whether Section 360 Cr.P.C will be applicable even after enactment of Probation of Offenders Act 1958. After discussing several previous judgments including the judgment in Sanjay Dutt Vs. The State of Maharashtra Crl. Appeal No. 1060/2007 on this point, it was held by Hon'ble Apex Court as under:-
"15. We find that the attention of the Court was not drawn to sub Section (10) of Section 360 which provides that Section 360 will not affect the provisions of 1958 Act or other similar laws for the time being in force for the treatment, training or rehabilitation of youthful offenders. Still further, Section 4 of the 1958 Act has a non obstante clause, giving overriding effect over any other provisions of law.
16. The conjoint reading of the provisions of both the statutes, we find that the provisions of Section 360 of the Code are in addition to the provisions of the 1958 Act or the Children Act, 1960, or any other law for the time being in force the treatment, training or rehabilitation of youthful offenders."
19. Considering the above, it is clear the application U/s 360 Cr.P.C is maintainable. Ld. Addl. PP for State has opposed grant of relief of probation on the ground that the offence U/s 354 IPC provides for CA. No. 65/2020 Abhishek Vs. State Page No. 16 / 19 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2023.05.12 16:58:25 +0530 minimum punishment of one year imprisonment and due to that reason, the convict cannot be released on probation. Similar question arose before Hon'ble Apex Court in Lakhvir Singh Etc. Vs. The State of Punjab & Anr. Crl. Appeal No. 47-48/2021. In that case, the appellants were convicted for offence U/s 397 IPC by Ld. Trial Court. The appeal thereof was dismissed by Hon'ble High Court whereupon appeal by way of Special Leave Petition was moved before Hon'ble Apex Court. The appellants prayed for relief under the probation of Offenders Act 1958 which was opposed by the State on the ground that minimum sentence of 7 years is provided for U/s 397 IPC and same cannot be reduced below that. After discussing relevant provisions and judgments on this point, Hon'ble Apex Court held as under:-
"11. The legal position insofar as invocation of Section 4 is concerned has been analysed in Ishar Das Vs. State of Punjab elucidating that non- obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. The observation in Ramji Missar (supra) was cited with approval to the effect that in case of any ambiguity, the beneficial provisions of the Act should receive wide interpretation and should not be read in a restricted sense,
12. The aforesaid aspect is confirmed by the wording of the said Act which reads as under:
"18. Saving of operation of certain enactments. - Nothing in this Act shall affect the provisions of section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or CA. No. 65/2020 Abhishek Vs. State Page No. 17 / 19 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.12 16:58:32 +0530 sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), or or any law in force in any State relating to juvenile offenders or Borstal Schools."
13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5 (2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum CA. No. 65/2020 Abhishek Vs. State Page No. 18 / 19 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.12 16:58:40 +0530 sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab are in the same context."
20. On the same analogy, this Court is of the view that benefit of probation cannot be denied to the convict herein on the sole ground that the offence U/s 354 IPC provides for minimum sentence of one year imprisonment. Admittedly, the offence U/s 354 IPC is not excluded U/s 18 of Probation of Offenders Act 1958. Similarly, Section 354 IPC does not contain any non-obstante clause thereby excluding the application of said Act for that offence. So, this Court holds that the convict might not be entitled to probation U/s 360 Cr.P.C however, his case can be considered U/s 4 of Probation of Offenders Act 1958 and said benefit cannot be denied to him on the sole ground that minimum punishment has been provided for the offence U/s 354 IPC.
21. Let a report be called from the probation officer U/s 4 (2) of Probation of Offenders Act 1958 for next date i.e., 17.05.2023.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.05.12
16:58:50 +0530
Announced in the open (Sunil Gupta)
Court on 12th May, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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