Sunil Kumar vs State of H.P.

Kuldip Singh, Judge

This petition is directed against the judgment dated 20.9.2011 passed by the Presiding Officer, Fast Track Court, Mandi in Criminal Appeal No. 43 of 2010 directing remand of the case to the trial Court with further direction to hear the parties to consider the question of benefit of Probation of Offenders Act to the petitioner.

It has been submitted by the learned counsel for the petitioner that petitioner was convicted and sentenced for the offences punishable under Sections 341, 354 IPC by the Judicial Magistrate Ist Class Court No.1, Mandi in Police Challan No.7-II/2008 dated 25.6.2010. In appeal, Presiding Officer, Fast Track Court, Mandi in Criminal Appeal No. 43 of 2010 remanded the case to the trial Court on 20.9.2011 to consider the question of granting of Probation of Offenders Act to the petitioner. It has been submitted by the learned counsel for the petitioner that the Presiding Officer, Fast Track Court, Mandi has not considered the contention of the petitioner that no case is made out against the petitioner for offences under Sections 341, 354 IPC. In fact, the last contention of the petitioner for granting benefit of Probation of Offenders Act, has been noticed and decided by the Presiding Officer, Fast Track Court, Mandi in the impugned judgment dated 20.9.2011.

In the impugned judgment, the Presiding Officer, Fast Track Court Mandi has not considered the appeal on merits and did not decide the contentions raised before him whether offences punishable under Sections 341, 354 IPC have been made out or not. It has been observed that mere circumstance that the petitioner has outraged the modesty of the prosecutrix in public viewing in the absence of any material showing the conviction of the petitioner previously does not appear to be sufficient and can not be said to be special reason for declining the benefit of probation to the petitioner. The Presiding Officer, Fast Track Court, after recording this observation remanded the case to the trial Magistrate to consider the aspect of probation.

The Presiding Officer, Fast Tract Court has not decided the appeal on merits whether the offences punishable under Sections 341, 354 IPC have been committed by the petitioner on the basis of material on record or not. In these circumstances, the impugned judgment is not sustainable and revision is liable to be accepted.

In view of above discussion, revision is allowed. Judgment dated 20.9.2011 passed by the Presiding Officer, Fast Track Court, Mandi in Criminal Appeal 43 of 2010 is set aside with the direction to Presiding Officer, Fast Track Court, Mandi to decide the appeal on merits in accordance with law. The parties through their counsel are directed to appear before the Presiding Officer, Fast Track Court, Mandi on 21.12.2011. The records be also sent back to the Presiding Officer, Fast Track Court, Mandi so as to reach before the date fixed