Prakash Amerseth & Ors. vs State Of Odisha

V. Narasingh, J. Heard learned counsel for the Petitioners and learned counsel for the State.

This Criminal Revision has been filed assailing the Judgment dated 28.07.2018 passed by the learned Addl. Dist. & Sessions Judge, Balliguda, Kandhamal in Criminal Appeal No.05 of 2018, whereby the appeal was partly allowed and the order of conviction qua the Petitioners dated 23.04.2018 passed by the learned SDJM, Balliguda in G.R. Case No.332 of 2012 (T.R. No.292 of 2016) under Sections 452¹/323²/354³/506⁴/34⁵ of the IPC, sentencing

It is the case of the prosecution that on 13.11.2012 at about 8:00 P.M., while the informant (P.W.1) was taking dinner inside his house, the accused persons, owing to a previous grudge, entered the house, abused him in obscene language and threatened to kill him. Accused-Petitioner Nos.1 to 3, along with another co-accused, assaulted him by means of kicks and fist blows and thereafter dragged him outside the house and again assaulted him. On seeing the incident, the wife (P.W.2) of the informant intervened, as a result of which accused-Petitioner Nos.4 to 6 pushed her, caught hold of her hair, assaulted her and tore her wearing apparel. When the father (P.W.3) of the informant came to rescue them, he was also assaulted. Some villagers arrived at the spot and saved the informant and his family members from the clutches of the accused persons. The injured persons were medically examined at C.H.C., Tumudibandha on 14.11.2012. Thereafter, the informant lodged the report at the Police Station on 16.11.2012, which was registered as Belghar P.S. Case No.28 of 2012. Upon completion of the investigation, the charge-sheet was filed against the said Petitioners under Sections 341⁶/452 /323 / 294⁷/354 /506 /34 of the IPC.

To drive home the charge, the prosecution examined as many as eleven witnesses, of whom P.W.1 is the informant and P.Ws. 2, 3 and 4 are wife, father and mother of P.W.1 respectively. P.Ws. 5, 6 and 7 are witnesses to the occurrence, P.Ws. 9 and 10 are witnesses to the seizure, P.W.11 is the medical officer who examined P.Ws. 1 and 2. P.W.8 is the investigating officer. Several documents were also marked on behalf of the Prosecution as Exhibits 1 to 3.

No evidence was adduced on behalf of the defence.

⁶ 341. Punishment for wrongful restraint.—Whoever wrongfully

restrains any person, shall be punished with simple imprisonment for a term

which may extend to one month, or with fine which may extend to five

hundred rupees, or with both.

⁷ 294. Obscene acts and songs.—Whoever, to the annoyance of others,—

The plea of the defence was one of complete denial.

On going through the evidence on record, the learned Trial Court convicted the present Petitioners for commission of offences under Sections 452 /323 / /506 /34 of the IPC and sentenced them to undergo S.I. for a term of one year each and to pay a fine of Rs.1,000/- each, in default, to undergo further S.I. of one month each for the offence under Sections 452 /34 of the IPC, S.I. for a term of one year each and to pay a fine of Rs.500/- each, in default, to undergo further S.I. of 15 days each for the offences under Sections 506 /34 of the IPC, S.I. of one year each and to pay a fine of Rs.1,000/- each, in default, to undergo S.I. of one month each for the offence under Sections 354 /34 of the IPC and S.I. for a term of six months each and to pay a fine of Rs.500/- each, in default, to undergo further S.I. of 15 days each under Sections 323 /34 of the IPC, further directing that the sentences shall run concurrently with further direction that the period of U.T.P, if any, be set off.

On appeal being preferred, the learned Appellate Court, taking note of the contradictions in the version of the prosecution witnesses, while acquitting the present Petitioners of the charge under Sections 354 , 452 and 506 /34 of the IPC, maintained the conviction under Sections 323 /34 of the IPC and directed them to pay a fine of Rs.800/- each, in default, to undergo S.I. for seven days for the offence under Sections 323 /34 of the IPC. It was further directed that a sum of Rs. 200/- shall be paid to each of the victims. Further, the prayer of the Petitioners for release under the Probation of Offenders Act, 1958 (hereinafter referred to as the "P.O. Act") was negatived.

At the outset, learned counsel for the Petitioners, Mr. Barik, submits that he does not want to assail the conviction on merits and confines his prayer to the extent that the Petitioners may be released on probation by giving them the benefit of the P.O. Act.

It is submitted by the learned counsel for the Petitioners that the approach of the Appellate Court in not extending the benefit of the P.O. Act is ex facie not tenable in view of the latest dictum of the Apex Court in the case of Chellammal and anr. V. State represented by the Inspector of Police^{88.Chellammal and anr. V. State represented by the Inspector of Police, 2025 SCC OnLine SC 870.} and it is further stated that the date of occurrence is of the year 2012, i.e. almost 14 years.

Such submission is not seriously opposed by the learned counsel for the State. However, taking into account the nature of the offence committed and in the light of the observation of the learned Trial Court refusing to grant the benefit of the P.O. Act, he submits that the benefit of the P.O. Act ought not to be extended to the Petitioners.

In its latest dictum, the law has been set at rest by the Apex Court in the case of Chellammal (supra) , wherein a duty has virtually been cast upon the Court to assign reasons in the event the benefit envisaged under the P.O. Act is not extended.

Relevant extract of the aforesaid judgment is culled out hereunder: “xxx xxx xxx

In the peculiar factual matrix of the case at hand, considering the finding of the Appellate Court and the time of occurrence, this Court is persuaded to hold that the fine amount as imposed by the Appellate Court is liable to be set aside.

It is further directed that the compensation amount is modified to Rs.500/- each. The same shall be paid to the victims, namely, Dillip Amarseth and Manchini Amarseth, in terms of Section 5^{99.5. Power of court to require released offenders to pay compensation and costs.—(1) The court directing the release of an offender under Section 3 or Section 4, may, if it thinks fit, make at the same time a further order directing him to pay— (a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and (b) such costs of the proceedings as the court thinks reasonable. (2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of Section 386 and} of the P.O. Act. Such compensation shall be deposited within a period of 10 days hence for disbursal to the abovementioned

387 of the Code.

In this context, it is apt to note that, so far as Section 5(2) of the P.O. Act is concerned, in the event of default in payment of the amount ordered under Section 5(1) of the said Act, the amount shall be recovered as a fine in accordance with the provisions of Sections 386 /387 of the Code.

It is further clarified that the "Code" herein refers to the Code of Criminal Procedure, 1898, which corresponds to Sections 461^{1010.461. Warrant for levy of fine.—(1) When an offender has been sentenced to pay a fine, but no such payment has been made, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may— (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 395.}/462¹¹ of BNSS 2023 (Sections 421 and 422 of the Code of Criminal Procedure, 1973)

Accordingly, the Criminal Revision along with pending I.A(s) stand disposed of. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. Corresponding Sections: S. 421 of CrPC, 1974: S. 386 of CrPC, 1898. 462. Effect of such warrant.—A warrant issued under clause (a) of sub-section (1) of Section 461 by any Court may be executed within the Signature Not Verified^{local jurisdiction of such Court, and it shall authorise the attachment and} sale of any such property outside such jurisdiction, when it is endorsed by Digitally SignedSigned by: SOUMYA RANJAN SAMALthe District Magistrate within whose local jurisdiction such property is found. Reason: AuthenticationCorresponding Sections: S. 422 of CrPC, 1974: S. 387 of CrPC, 1898.