Point of law : Grant of benefit of probation without calling for report from the probation officer may not be treated to be merely an irregularity. When probation is to be granted, as such, a report should be called for from the probation officer, whether accused is entitled to such benefit or not, considering his social status, conduct and the other aspects.

JUDGMENT :

1. This revision application is filed by the original first informant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) praying for quashing and setting aside the impugned order, whereby benefit of probation for a period of five years was granted to respondent No.2 – original accused, who came to be convicted for an offence under Section 324 of the Indian Penal Code, as also under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”), and directed to undergo three years’ simple imprisonment for an offence under Section 324 of the Indian Penal Code, as also five years’ simple imprisonment for an offence under Section 3(1)(x) of “the Act” with fine. As such, as recorded in the impugned order, after pronouncing the conviction and sentence, instead of sending respondent No.2 – accused into custody, he was ordered to be released on probation for a period of five years.

2. The petitioner is the original first informant, who registered an FIR against respondent No.2 – accused, as pursuant to an application made to the Mines and Minerals Department, the officer concerned, visited lease site of the accused, which led to a quarrel with the complainant and not only he was assaulted by the present respondent No.2 – accused and other accused, who appears to be the sons of the present respondent No.2, they also caused injuries to the petitioner and he was insulted of his caste and threatened of dire consequences. The respondent No.2 – accused is said to have assaulted the petitioner with gupti and iron pipe. On conclusion of investigation, the charge-sheet came to be filed against the accused, which led to trial in the Court of learned Additional Sessions Judge and Special Judge (Atrocity), Rajula in Special Atrocity Case No.16 of 2013.

3. On conclusion of trial, the learned Judge vide judgment and order dated 29.01.2021, convicted and sentenced respondent No.2 – accused for the offences punishable under the Penal Code as also under “the Act”. However, instead of implementing the sentence, he was granted benefit of probation for a period of five years and was not sent to the custody. It is that very order, so far as grant of probation is concerned, is challenged by the petitioner – complainant by way of present revision application.

4. Pursuant to Rule issued in this revision application, Mr. Siddhant R. Shah, learned advocate has appeared on behalf of the respondent No.2 – accused.

5. Mr. Malaykumar S. Patel, learned advocate for the petitioner, submitted that in view of Section 19 of “the Act”, no person convicted for an offence under “the Act” can be granted benefit of either Section 360 of “the Code” or the provisions of the Probation of Offenders Act, 1958 (herein after referred to as “the Act, 1958”) as it shall not apply to any person above the age of eighteen years, who is found guilty of having committed an offence under “the Act”. He has further submitted that there is no constitutional issue involved in the case, which requires reference under Section 395 of “the Code”. Not only that, it is further submitted that even without calling for the report of probation officer, benefit of probation came to be granted to respondent No.2 – accused, who is admittedly more than eighteen years of age and is not entitled for the same, in view of clear bar under Section 19 of “the Act”.

5.1 Drawing attention of this Court to the list of cases filed against respondent No.2 - accused in Rajula Police Station itself, seven in numbers, under different provisions of the Indian Penal Code as also the Motor Vehicles Act, ranging from the year 2006 till the present case, it is submitted that a person having such a criminal record cannot be granted benefit of probation as it could have been refused on assigning good reasons.

5.2 He has relied on a decision of the Rajasthan High Court in the case of