The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.21 of 2007 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Ampili Anand Rao ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Tukuna Kumar Mishra, Advocate For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.07.2025 : Date of Judgment: 31.07.2025 S.S. Mishra, J. The sole appellant in the present Criminal Appeal has assailed the judgment of conviction and the order of sentence dated 09.11.2006 passed by the learned Sessions Judge-cum-Special Judge, Koraput at Jeypore in Criminal Trial No.67 of 2003, whereby the appellant has been found guilty of the offence punishable under Sections 341/323/506/34 of the IPC. However, the appellant has been acquitted of the offence under Section 3(1)(x) of the SC & ST (PoA) Act. 2. The appellant has been sentenced to undergo R.I. for six months and to pay fine of Rs.3,000/- (Rupees three thousand), in default, to undergo further R.I. for three months for the offence punishable under Section 506/34 of the IPC and further sentence of three months and to pay fine of Rs.1,000/- (Rupees one thousand), in default, to undergo R.I. for one month for the offence punishable under Section 323/34 of the IPC and to pay fine of Rs.500/- (Rupees five hundred), in default, to undergo S.I. for seven days for the offence under Section 341/34 of the IPC. 3. Heard Mr. T.K. Mishra, learned counsel appearing for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate appearing for the Respondent-State. 4. The prosecution case in nutshell is that on 15.04.2002 at about 12 noon, when Ghasi Harijan, P.W.1 was returning to his house in the village Jamunda from his land, the appellant-accused and his brother obstructed him on his way to home. Thereafter, the accused dealt a Page 2 of 11 thenga blow on his left hand alleging that, he was taking the support of Guru Dombo. While the appellant was dealing another blow aiming at the head of Ghasi Harijan, he raised his hand and caught hold of the thenga, but the other accused caught hold of his neck and dealt fist blows for which he fell down on the ground and became senseless. Basing on this fact, the F.I.R. was lodged in Boriguma P.S. Case No.46 of 2002 arising out of C.T. Case No.67 of 2003 corresponding to G.R. Case No.290 of 2002. 5. In order to bring home the charges, the prosecution examined as many as six witnesses. P.W.1 is the injured in the present case whereas P.Ws.2 and 3 are independent witnesses, those who have not supported the prosecution case and turned hostile. P.W.5 is the son of P.W.1 and he is also an injured witness and informant in this case. P.Ws.4 and 6 are the Investigating Officers. 6. Learned trial Court, by relying heavily on the testimonies of the injured witnesses, found the appellant guilty of the offence punishable under Sections 341/323/506 of the IPC, however, disbelieving the prosecution witnesses, has acquitted the appellant of the offence under Page 3 of 11 Section 294 of the IPC as well as the offence under Section 3(1)(x) of the SC & ST (PoA) Act. 7. Learned trial Court, on analyzing the evidence on record by the prosecution, has arrived at the following conclusion, which reads thus: “(11) So on appraisal of the evidence the following facts has categorically emerged: i. That the accused along with his brother does neither belong to Scheduled Caste nor Scheduled Tribe and P.Ws. 1 and 5 belong to Scheduled Caste. ii. That the accused and his brother obstructed and assaulted the informant while he was returning to his home. That the accused persons abused him saying “DOMBO GIAPO GURU DOMBO RO SUPPORT NOUCHU KI” iii. That the accused and his brother also restrained P.W.5 while he was going to the police station on the next day and they also abused him and threatened him saying “DOMBO SOLA THANA KU GOLE HANI DEBU” Now it is to be seen whether the aforesaid act of the accused persons is sufficient enough to establish the charges against the present accused. (12) Needless to say P.W.1 has very categorically deposed that he was restrained and assaulted by both the accused persons. But there is nothing on the record suggesting that while he was going in any direction he was obstructed by the accused persons and the accused persons did not allow him to Page 4 of 11 proceed in that direction by their act or omission. Assaulting to a person who was proceeding to any direction does not attract the element of restrained though in every assault to a person the movement of the person is restricted. But in this case it has been categorically emerged that both the accused persons restrained P.W.5 while he was going to police station to report the matter and did not allow him to go there though he had right to go. Furthermore both the accused persons assaulting the P.W.1 has since been proved, there is nothing on the record that such assault on P.W.1 was intentional or accidental. So from the aforesaid it can very well be said that the present accused and his brother intending to assault P.W.1 assaulted him and as such thereby voluntarily caused hurt to him in furtherance of their common intention. So also when both the accused persons restrained the movement of P.W.5 by armed with tangi it can very well be said that both of them sharing the common intention restrained P.W.5 in proceeding in a direction in which he was entitled to go. So also there is evidence that in this case they threatened P.W.5 to kill if he would go and report the matter to police station being armed with Tangi for which P.W.5 returned back. From the aforesaid it would go to show that P.W.5 was alarmed by such intimidation of accused persons as he returned to his home thereafter and reported the matter some days thereafter. From the aforesaid I have no manner of doubt that the acts of the present accused attracts the ingredients of Section 323/341/506 read with Section 34 I.P.C. So far as the charge under section 294 I.P.C. is concerned needless to say that considering the uttering made by both the accused persons to accused Ghasi Harijan, namely, ‘DOMBO GIAPO’ and P.W.5 Bhagaban Harijan as ‘MAGIYA DOMBO SOLA’ in the facts and situation of the case and also the area in which they live it can hardly be said that the same is an obscene utterance which caused annoyance to others. So I am of the opinion that prosecution in this case has not proved beyond reasonable doubt the charge under Section 294 I.P.C. Page 5 of 11 Now coming to the charge under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act it has since been proved that the accused does not belong to Scheduled Caste or Scheduled Tribe and P.Ws. 1 and 5 belong to Scheduled Caste but there is nothing on the record disclosing the fact that the accused had humiliated or intimidated P.W.1 with an intention to insult. However, the present accused along with his brother had intimidated P.W.5 while he was going to the police station has since been proved in this case. The same was also in a place in the view of public inasmuch as from P.W.5 it has been elucidated such intimidation was given some coward boys were present there. But intentionally intimidating a Scheduled Caste person by self is not sufficient enough to prove a charge under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act. Besides that the prosecution has to prove that the same was with an intention to humiliate of course intention being a state of mind the same can be judged from the attending circumstances. In this case admittedly the purpose of accused person was to intimidate P.W.5 not to report the matter to police so the same in no circumstance can be said to have been made to be lower the P.W.5 in the eye of public. Hence, it can very well be said that a charge under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act is not made out.” in his cross-examination that while 8. The appellant, being aggrieved by the aforementioned judgment of conviction and order of sentence, preferred the present Criminal Appeal. 9. At the outset, Mr. T.K. Mishra, learned counsel for the appellant has stated at the Bar that since the appellant has already been acquitted by the learned trial Court of the offence under Section 3(1)(x) of the S.C. & S.T. (PoA) Act and Section 294/34 of the IPC and no appeal has been preferred by the State, there is no legal impediment in extending the Page 6 of 11 benefit of Probation of Offenders Act to the appellant. He has submitted that he would confine his argument limited to the question of quantum of sentence and regarding extension of the benefit of the Probation of Offenders Act. He has relied upon the judgment of the Hon’ble Supreme Court in the case of Hari Kishan and another vs. Sukhbir Singh and others, reported in 1988 (4) SCC 551. In the said judgment, the Hon’ble Supreme Court has held as under: “The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct ? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the beneficial legislation applicable to first offenders cannot be said to be inappropriate.” the extension of benefit of Apart from that, Mr. Mishra, learned counsel for the appellant has also relied upon the judgment of the Hon’ble Supreme Court in the case of Page 7 of 11 Ishar Das vs. State of Punjab, reported in 1973 (2) SCC 65, wherein the Hon’ble Supreme Court has held thus: “The operation of the provisions of Probation of Offenders Act is not excluded even in the cases accused is found guilty of the offence under the Special Statute like Prevention of Food Adulteration Act unless specifically excluded by the statute.” 10. Mr. Mishra, learned counsel for the appellant has also relied upon the recent judgment of the Hon’ble Supreme Court in the case of Chellammal and another vs. State represented by the Inspector of Police, reported in 2025 INSC 540, wherein the Hon’ble Supreme Court has held thus: “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 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. than death or Page 8 of 11 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.
Decision
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. ” 11. Mr. Apat, learned Additional Government Advocate appearing for the State has not seriously objected to the submissions made by Mr. Mishra, learned counsel for the appellant on the ground that grant of benefit of Probation of Offenders Act being the discretionary power vested with the Court and the law cited in the Court, is not disputed. Hence, it is left open to the Court to exercise its jurisdiction. Page 9 of 11 12. In the present case, the incident happened on 15.04.2002. At that point of time, the appellant was 32 years age. The appeal is pending since 2007. At present, the appellant would be about 55 years of age. The appellant has a clean antecedent. He has already settled in his life and well known in the society. Therefore, this is a fit case where the benefit of Probation of Offenders Act could be extended to the appellant. 13. Besides the Judgments quoted above, regard being had to the age of the appellant, his societal position, clean antecedents and the fact that the incident had taken place in the year 2002, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. 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 Jagdevmohapatra1. 14. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing 1 2012 (Supp-II) OLR 469 Page 10 of 11 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 six 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 six months. 15. With the above observation, the CRA is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated 31st July, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2025 10:55:49 Page 11 of 11