Gauhati High Court
Page No.# 1/7 vs Mosht Rukia Khatun And Anr on 6 January, 2025
Page No.# 1/7
GAHC010005402009
2025:GAU-AS:97
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./273/2009
ABDUR RAHMAN MANDAL and ANR.
S/O LT. RAHIMUDDIN, R/O VILLAGE NO.2, NACHANGURI, P.O.
GORAIMARI, P.S. BIJNI, DIST. BONGAIGAON, ASSAM.
2: HABIB MAHAMMAD HAMIDUL HAQUE
S/O ABDUR RAHMAN MANDAL R/O VILL- NO.2 NACHANGURI
P.O. GORAIMARI
P.S. BIJNI
DIST. BONGAIGAON
ASSAM
VERSUS
MOSHT RUKIA KHATUN and ANR
W/O MD SAHA ALI R/O VILLAGE NO. 2 NACHANGURI, P.O. GORAIMARI,
P.S. BIJNI, DIST. BONGAIGAON, ASSAM.
2:THE STATE OF ASSA
Advocate for the Petitioner : MD.A MALEQUE, MISSS KANUNGOE,MRM H AHMED,MR D C
NATH,MR.A S CHOUDHURY,MR. S K SAHARIAH,MR. I MOZUMDER,MR. C SHARMA
Advocate for the Respondent : MR.H AHMED, ,MRS.F BEGUM,PP, ASSAM,MR.A SHARIF
BEFORE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioners : Mr. MH Ahmed, Advocate
For the Respondents : Mr. KK Das, Addl. PP, Assam
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Date of Hearing : 06.01.2025
Date of Judgement : 06.01.2025
JUDGMENT & ORDER (ORAL)
1. Heard Mr. MH Ahmed, learned counsel for the petitioners. Also heard Mr. KK
Das, learned Additional Public Prosecutor, Assam.
2. The present application is filed assailing a judgment and order dated
15.12.2005 passed by the learned Sub Divisional Judicial Magistrate, Bijni in CR
case No. 393/2004 convicting and sentencing the petitioners to pay Rs. 500/-
each in default to suffer Simple Imprisonment for 2 months each under Section
323/34 IPC.
3. Aforesaid judgment and sentence was challenged by the petitioner before the
learned Additional Sessions Judge (FTC), Bongaigaon in Criminal Appeal No.
3(1)/2006 and the learned appellate court uphold the aforesaid judgment and
order dated 15.12.2005 passed by the learned Sub Divisional Judicial Magistrate,
Bijni in CR case No. 393/2004.
4. The prosecution story in a nutshell is that the complainant Musstt. Rukia
Khatoon filed a complaint case alleging, inter-alia, that on 30.12.2004, her son
Rakibul Islam, who was a student of Class III of Nachankuri L.P. School, went to
his school to collect rice as supplied by the Government to the L.P. School
students. It is alleged that the Headmaster of the said school, namely, Md. Abdur
Rahman Mandal refused to give him rice and then her son informed the matter to
her. Accordingly, she rushed to the school and asked the Headmaster as to why
he refused to give rice to his son. The Headmaster told her to stay in the school
for some time and left the school by his motorcycle. After some time, the
Headmaster along with his son, namely, Habib Mahammad Hamidul Haque came
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back and without any reason the son of the Headmaster started to abuse the
complainant with filthy language and also started to assault her by his pant’s belt.
It is also alleged that the Headmaster also assaulted her by the said belt and
pushed her. As a result, she fell down on the floor thereby they outraged her
modesty and also threatened her with injury.
5. The learned Sub Divisional Judicial Magistrate, Bijni took cognizance of the
offence under Sections 341/323/354/506/34 IPC against the accused / petitioners
and issued process. The accused/ petitioners appeared before the learned
Magistrate on receipt of summons. As they pleaded not guilty and claimed to be
tried, the trial proceeded.
6. To bring home the charges, the prosecution examined as many as four
witnesses including the complainant. The accused / petitioners were also
examined under Section 313 Cr.P.C. The accused/petitioners did not adduce any
evidence in their favour.
7. After appreciation of the evidence, the learned trial Court had convicted the
petitioners as recorded hereinabove.
8. On appeal, the learned Additional Sessions Judge re-appreciated the evidence
in details and came to the conclusion as recorded hereinabove.
9. Feeling aggrieved by the aforesaid judgment, the present revision petition is
preferred by the petitioners.
10. Mr. Ahmed, learned counsel for the petitioners, at the outset, submits that he
shall not challenge the impugned order of conviction on merit and shall confine
his submission in the appeal only in respect of the order of sentence.
11. Mr. Ahmed, learned counsel argues that the petitioners are entitled for benefit
under Section 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958
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(hereinafter referred to as Act, 1958) which had not been granted by both the
learned Courts below. Mr. Ahmed, learned counsel further submits that accused
petitioners have not been convicted previously for any offence and he is first time
offender.
12. According to Mr. Ahmed, learned counsel though the learned trial Court ought
to have considered granting benefit under the Act, 1958, however, same was
rejected only on the consideration of the manner of commission of offence by the
accused persons to the weaker section and poor and needy woman of the society
and at the same time, the learned appellate court even did not consider grant of
benefit to the petitioners.
13. It is further contended by the learned counsel for the petitioners that the
accused persons are having a right of consideration under the Act, 1958 and
therefore, the right of the petitioners have been violated. It is argued that the
learned Appellate Court did not invoke the provisions of the Act, 1958 nor the
provisions of Section 360/361 Cr.P.C while sentencing the accused petitioners and
the Trial court has not given any special reason in the impugned judgment and
order of conviction and sentence for not giving benefit of such provision.
14. The learned Addl. Public Prosecutor, Mr. KK Das, also fairly submits that the
accused persons are having a valuable right for proper consideration under the
Act, 1958, however, the learned Trial court has mechanically rejected such prayer
taking note of the manner of commission of the offence.
15. This court after perusal of the materials available on record has also not found
any patent error or illegality in the judgments. Therefore, this court will now deal
with the entitlement of the petitioners of the benefit under the Act, 1958.
16. It is by now well settled that Act, 1958 is a milestone in progress of modern
liberal trend of reform in the field of Penology. It is the result of recognition of
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the doctrine that the object of criminal law is more to reform the individual
offender than to punish him. It was also held by Hon’ble Apex Court in the case
of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that
sentencing an accused person is a sensitive exercise of discretion and not a
routine or mechanical prescription acting on hunch. The Trial court should collect
material necessary to award a just punishment in circumstances. It was further
held that the social background and the personal factors of the crime doer are
very relevant in this regard.
17. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005
SC 3534, the Hon’ble Apex Court has laid down certain principle for exercise of
discretionary power under the Act and the consideration required. The hon’ble
Apex Court opined that while exercising the discretionary power under the Act
1958, the courts are to consider the circumstances of the case, the nature of
offence and the character of the offender. While considering the nature of the
offence, the court must take a realistic view of the gravity of the offence, the
impact which the offence had on the victim. It was concluded by the hon’ble
Apex Court that the benefit available to the accused under section 4 of the Act,
1958 is subject to the Limitation embodied in the provision and the word ‘may’
clearly indicates that the discretion is vested with the court whether to release
the offender in exercise of power under section3/4 of the Act, 1958, having
regard to the nature of the offence, the character of the offender and overall
circumstances of the case.
18. It was further held by the hon’ble Apex Court that such power can be exercised
by the court even at the appellate or revisional stage or also by Apex Court
hearing appeal under Article 136 of the Constitution of India.
19. Now in the backdrop of the aforesaid settled proposition of law, let this court
consider the arguments advanced by the learned counsel for the parties.
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20. This court, after perusal of the judgment, is of the opinion that the learned
Appellate Court did not make any considerations under the Act, 1958, inasmuch
as, such consideration is a right of the accused and duties of the courts. A court
may not grant benefit in the given facts of a case, however, consideration must
be given. At the same time, the learned trial Court did not grant the benefit
under the Act, 1958 to the petitioners citing manner of commission of offence. In
the considered opinion of this court, the learned trial court failed to consider the
entitlement of the petitioners to the benefit of Act, 1958 on the touchstone of the
principle as recorded hereinabove.
21. In the case in hand, the offence was committed on 30.10.2004. The nature of
offence and manner it was committed cannot also be said to be heinous or
premeditated inasmuch as admittedly there was quarrel between the parties for
not delivery of rice to the child of the victim by the accused, who is a school
Headmaster. In the given circumstances of the case. It is also asserted by the
learned counsel that the petitioners have not committed any similar nature of
offence or to say any offence prior to the incident or during pendency of this
appeal till date. The learned Additional Public Prosecutor, Assam has also
submitted that he has no instruction as regards any criminal activities of the
petitioners. This court also had considered that the accused petitioners have
suffered for last 20 years litigating in the court and facing trial, appeal and
revision.
22. Considering the above stated facts and without entering into the merits of the
judgments impugned and considering the relevant provisions and settled
propositions of law and the period lapsed from the date of incident, this court is
of the considered opinion that this is a fit case where the benefit of provision of
Probation of Offenders Act, 1958 should be given to the accused petitioners by
this court in exercise of its revisional power. Accordingly, for the reasons
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recorded hereinabove, the petitioners be given the benefit under the provision of
Probation of Offenders Act, 1958 and accordingly, sentence is modified to that
effect and it is provided that instead of sending them to jail, should be given the
benefit of section 4 of the Probation of Offenders Act, 1958.
23. Accordingly it is directed that the petitioners will file two sureties to the tune of
Rs.20,000/- each along with personal bond before the learned trial court i.e., the
learned Sub Divisional Judicial Magistrate, Bijni and undertake to the effect that
the petitioners shall maintain peace and good behaviour during the period of one
year from today. The aforesaid bond be filed by the petitioners within a period of
one month from the date of this judgment. In the given facts of the present case,
this court is also of the opinion that the petitioner, namely, Md. Abdur Rahman
Mandal be given benefit of Section 12 of the Act, 1958 and conviction should not
affect his service/ pensionary benefit.
24. With the aforesaid, the revision petition stands allowed.
JUDGE
Comparing Assistant
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