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Judgment
S.S. Mishra, J. This appeal is directed against the Judgment of Conviction and the Order of Sentence dated 26.11.2005 passed by the learned Additional Sessions Judge-cum-Special Judge, Rayagada in T.R. Case No. 13 of 2004 (C.T. No. 392 of 2004), whereby the appellant was convicted for the offence punishable under Section 355 of the Indian Penal Code. By the impugned order of sentence, the appellant was sentenced to pay a fine of Rs.500/-, in default whereof, he was directed to undergo simple imprisonment for a period of four months.
The appeal is pending since 2005. When the matter was called for final hearing repeatedly, none appeared for the appellant. Therefore, this Court appointed Ms. Saraswati Senapati, as Amicus Curiae vide order dated 28.07.2026 to assist the Court in the matter. She has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Ms. Senapati, learned Amicus Curiae appearing for the appellant.
Heard Ms. Saraswati Senapati, learned Amicus Curiae and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State.
The prosecution case, as unfolded in the F.I.R. and during trial, in brief, is that the informant was the President of the Kandha Maligaon Primary School, while the accused was the Headmaster of the said School at the relevant time. The victims were students of Class-V of the said School and belonged to the Adivasi community. The accused, apart from functioning as the Headmaster of the School, was also working as the Superintendent of the Hostel meant for Adivasi students.
In December, 2002, the aforesaid two students complained before the informant that the accused had called them to his room inside the hostel, removed his clothes and compelled them to masturbate his penis till ejaculation. They further stated that, on several occasions prior thereto, the accused had similarly compelled them to masturbate him. The students also informed the informant that the school cook, namely, Dayana Piribika, was aware of the said incidents.
The matter was reported to the B.D.O., Rayagada on 26.12.2002 and thereafter to the D.I. of Schools on 03.02.2003. The matter was also brought to the notice of the S.A. of Schools during his inspection on 03.03.2003. Subsequently, the students complained against the accused before the District Magistrate, Rayagada. As no action was taken against the accused, the students left the School. Thereafter, the informant, being the President of the School Committee, reported the matter at Chandili Police Station on 05.08.2003. Upon completion of investigation, charge-sheet was submitted against the accused.
In order to substantiate the charges against the accused, the prosecution examined as many as ten witnesses. P.W.1 is the informant and the President of the Sevashram School. P.W.2 was an Assistant Teacher of the said Primary School, while P.W.3 was a member of the Village Education Committee. P.W.4 was a student of the said School. P.Ws.5 and 6 were the two victims, who were also students of the said School. P.W.7 was another Assistant Teacher of the School. P.W.8 was the O.I.C. of Chandili Police Station, who conducted the investigation. P.W.9 was the Additional District Magistrate, Rayagada, who conducted an enquiry into the matter, and P.W.10 was the D.S.P., Rayagada, who submitted the charge-sheet against the accused.
The defence plea is one of complete denial. In his statement recorded under Section 313 of the Cr.P.C., the accused stated that the previous Headmaster, namely, Dhanu Sethy, and the School cook, Dayana Piribika, bore a grudge against him as he had been appointed as the Headmaster of the said School and, at his instance, the present false case had been foisted against him. However, no witness was examined on behalf of the defence.
Upon consideration of the evidence adduced by the prosecution, particularly the testimony of P.Ws.5 and 6, who were the victims, and taking note of the fact that the alleged occurrence had taken place inside a closed room, the learned trial Court found their evidence sufficient to establish the charge under Section 355 of the I.P.C. The learned trial Court, however, did not find the prosecution case sufficient to sustain the charges under Sections 294 of the I.P.C. and 3(1)(x) of the S.C. & S.T. (P.A.) Act and, accordingly, acquitted the accused of those charges. The conclusion arrived at by the learned trial Court reads as follows:
“11.In the result, the accused is found not guilty u/s 294 I.P.C. and u/s 3(1)(x) of the S.C. & S.T. (P.A.) Act and he is acquitted from those charges u/235(1) Cr.P.C. However, he is found guilty u/s 355 I.P.C. Considering the nature and gravity of the offence and the manner in which it was caused, I am not inclined to extend the benefit of the P.O. Act to the accused. Accordingly, he is convicted thereunder.”
From a reading of the impugned judgment, it appears that the learned trial Court, primarily relying upon the evidence of P.Ws.5 and 6, who were the victims, and taking into consideration the fact that the alleged occurrence had taken place inside a closed room, came to the conclusion that the prosecution had succeeded in proving the charge under Section 355 of the Indian Penal Code against the accused. So far as the charge under Section 294 of the Indian Penal Code is concerned, the learned trial Court held that, as the alleged occurrence had taken place inside a closed room, the essential requirement of the offence having been committed in or near a public place was not satisfied. Similarly, in respect of the charge under Section 3(1)(x) of the S.C. & S.T. (P.A.) Act, the learned trial Court held that the alleged act of humiliation was not committed in public view and, therefore, the said charge was also not established. Accordingly, the accused was acquitted of the said charges. However, on the basis of the evidence of P.Ws.5 and 6, the learned trial Court found the accused guilty of the offence punishable under Section 355 of the Indian Penal Code and sentenced him accordingly.
Being aggrieved by the aforesaid Judgment of Conviction and Order of Sentence dated 26.11.2005 passed by the learned Additional Sessions Judge-cum-Special Judge, Rayagada in T.R. Case No.13 of 2004 (C.T. No.392 of 2004), the appellant has preferred the present appeal, challenging the legality and correctness of the said judgment of conviction and order of sentence.
At the outset, Ms. Senapati, learned Amicus Curiae for the appellant, took this Court through the evidence on record and assailed the impugned judgment on merits. However, after advancing her submissions for some time, she fairly submitted that she would confine her challenge to the quantum of sentence. Learned Amicus Curiae for the appellant submitted that the present appeal, preferred in the year 2005, has remained pending for more than twenty years. It was argued that, the occurrence dates back to the year 2002, when the appellant was about 53 years of age. He is now approximately 73 years old, and it is submitted that, with the passage of time, he has settled in life and has been leading a stable and law-abiding life. According to the learned Amicus Curiae, directing the appellant to undergo the remaining part of the sentence after such an inordinate lapse of time would serve no meaningful purpose.
Learned Amicus Curiae further submitted that the appellant has no criminal antecedents and that no other criminal case is stated to be pending against him. It was urged that the appellant has, over the years, remained integrated with society and is leading a settled family life. In such circumstances, his incarceration at this distant point of time would neither advance the ends of justice nor serve any meaningful penological objective. Accordingly, it was prayed that, having regard to the long passage of time, the nature of the offence, the antecedents of the appellant, and the overall facts and circumstances of the case, this Court may extend to the appellant the benefit of the provisions of the Probation of Offenders Act, 1958.
While analyzing the evidence on record, this Court finds no reason to disagree with the findings recorded by the learned trial Court. Hence, this Court affirms the conviction recorded against the appellant for the offence under Section 355 of the Code.
The record reveals that the occurrence relates back to the year 2002. At the time of the incident, the appellant was in his late fifties. He was convicted by the impugned judgment and order of sentence passed by the learned trial Court and the present appeal has remained pending since the year 2005. As of now, the appellant is in his late seventies. Considerable time has elapsed since the occurrence and much water has flown under the bridge. It is further not in dispute that he has no criminal antecedents and no other criminal case is stated to be pending against him. In the interregnum, he has led a settled family life and remained integrated with society. In such circumstances, this Court is of the considered view that this is a fit case where the benefit contemplated under the Probation of Offenders Act, 1958 deserves to be extended to the appellant. The Hon'ble Supreme Court in Chellammal and Another v. State represented by the Inspector of Police1, has held that it is the statutory obligation of the sentencing Court to consider the applicability of the provisions of the Probation of Offenders Act and that any refusal to extend such benefit must be supported by reasons. In the facts and circumstances of the present case, the submission advanced by the learned Amicus Curiae for the appellant seeking extension of the benefit under the Probation of Offenders Act merits consideration.
The Hon'ble Supreme Court in Chellammal (supra) has elaborately explained the scope, object and significance of the Probation of Offenders Act, 1958 while considering the question of extending the benefit of probation to a convict. The Hon'ble Supreme Court has observed as follows:
“26.On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub-section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor.
27.What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. PC is that if Section 360, Cr. PC were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted.
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 subsection (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 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.”
Having regard to the aforesaid legal position and considering the facts of the present case, particularly the nature of the offence under Section 355 of the Indian Penal Code, the long lapse of more than twenty years since the occurrence, the absence of any criminal antecedent and the settled life presently being led by him, this Court is of the considered opinion that the appellant deserves to be extended the benefit contemplated under Section 4 of the Probation of Offenders Act, 1958, instead of directing him to undergo the remaining part of the sentence. Additionally, the case of the appellant is also covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra2 and Dhani @ Dhaneswar Sahu vs. State of Orissa3. In view of the aforesaid legal position and the peculiar facts and circumstances of the case, this Court is inclined to extend to the appellant the benefit contemplated under Section 4 of the Probation of Offenders Act.
Hence, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of three months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of three months.
At this juncture, it would also be apposite for this Court to advert to the effect of the order passed under the provisions of the Probation of Offenders Act, 1958, particularly in view of the submission made on behalf of the appellant that there might be disqualifications relating to his convictions. Having extended to the appellant the benefit of the provisions of the Probation of Offenders Act, 1958, it is necessary to clarify the legal consequences flowing therefrom.
Section 12 of the said Act expressly provides that notwithstanding anything contained in any other law, a person who is found guilty of an offence but is dealt with under Section 3 or Section 4 of the Act shall not suffer any disqualification, if any, attaching to such conviction. The legislative intent underlying the provision is to ensure that an offender who has been considered fit for reform and rehabilitation is not visited with the civil disabilities ordinarily flowing from a conviction. Consequently, subject to the applicability of the proviso appended to Section 12, the conviction of the appellant, coupled with the benefit extended under Section 4 of the Act by this Court, shall not, by itself, entail any statutory disqualification attached to such conviction.
Accordingly, with the above observations and directions the Criminal Appeal is partly allowed.
This Court acknowledges the effective and meaningful assistance rendered by Ms. Saraswati Senapati, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/-(Rupees seven thousand five hundred) to be paid as a token of appreciation.