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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL

REVISION APPLICATION

NO. 84/2022

Dnyaneshwar Anandrao Balpande..Versus...State of Maharashtra

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders or directions

and Registrar's orders

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Mr. A.A.Dhawas, Advocate for applicant

Ms. T.H.Udheshi, APP respondent.

CORAM : AVINASH G. GHAROTE, J.

DATE : 02/05/2022

1]

In pursuance to the order dt. 7/4/22 passed

earlier, Heard Mr. Dhawas, learned counsel for the applicant,

as Mr. Bezalwar is no longer the counsel appearing for the

applicant.

2]

Mr. Dhawas, learned counsel for the applicant, on

the question of grant of benefit of the Probation of Offenders

Act, submits that Section 360(1) of the Cr.P.C. is a mandatory

provision, in which the learned Magistrate or the appellate

Court has to record in the judgment the special reasons for not

providing the benefit of Section 360 of Cr.P.C to the accused.

He submits that there are no such reasons. Further inviting my

attention to Section 4 of the Probation of Offenders Act, he

submits that considering the fact that there are no criminal

antecedents, the applicant is a poor agriculturist, the report of

the Probation Officer be called and based upon it, the benefit

of the Probation of Offenders Act be given.

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3]

This contention is vehemently opposed by the

learned APP, who places reliance upon Section 19 of the

Probation of Offenders Act which excludes the applicability of

Section 360 of the Cr.P.C, 1973, which is pari materia to

Section 562 of Cr.P.C., 1908. A further reliance is placed upon

Ajahar Ali vrs. State of West Bengal, (2013) 10 SCC 31, to

contend that in case of heinous crime such as offence under

Sections 354, 354-A, 354-B, 354-C and 354-D of the IPC, the

benefits of Probation of Offenders Act are not available.

4]

A reading of Section 19 of the Probation of

Offenders Act would indicate exclusion of provision of Section

360 of the Cr.P.C for the purpose of Section 4 of the Probation

of Offenders Act. It is further material to note that the

applicant has been convicted for the offence under Section

354-B of the IPC. In Ajahar Ali (supra), the Hon’ble Apex

Court has held that the provisions of Section 354 of the IPC

have been enacted to safeguard the public morality and decent

behaviour and therefore, if any person uses criminal force

upon any women with the intention or knowledge that the

women’s modesty will be outraged, he would be punished,

thereby indicating that the benefit of the Probation of

Offenders Act ought not be given to the persons who have

been convicted under Section 354 of the IPC. In the order

dated 7.4.2022, I have pointed out as to what was the role of

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the applicant, in regards the commission of the offence under

Section 354-B of the IPC, when he had tried to not only

disrobe the complainant, but had also tried to commit the

offence under Section 376 of the IPC upon her, in view of

which in my considered opinion even on facts the applicant

would not be entitled to any benefit of the Probation of

Offenders Act even if it was held to be so applicable. I

therefore do not see any merit in the contention, the same is

rejected.

5]

The criminal revision is accordingly dismissed.

JUDGE

Rvjalit

Digitally sign byRAJESH

VASANTRAO JALIT

Location:

Signing Date:02.05.2022 18:48