The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.174 of 2005 (In the matter of an appeal under Section 374 of Code of Criminal Procedure, 1973) Ashok Kumar Chand & another ……. Appellants -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Dillip Kumar Mishra, Advocate For the Respondent : Ms. Suvalaxmi Devi, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 11.04.2005 passed by the learned Special Judge under the SC & ST (P.A.) Act, Khurda, in T.R. Case No. 4/11 of 2003 (arising out of G.R. Case No. 744 of 1998, corresponding to Jankia P.S. Case No. 133 of 1998), whereby the appellants, namely Ashok Kumar Chand and Bijay Kumar Chand, were convicted under Sections 447, 427, and 294 read with Section 34 of the Indian Penal Code, 1860, and sentenced accordingly. 2. As per the prosecution case, on 20.09.1998 at about 7:00 P.M., the appellants, in furtherance of their common intention, entered into the bari (kitchen garden) of the informant, Padma Charan Behera, and cut down two trees i.e. Sajana and Amrutabhanda, causing damage to the tune of more than Rs.50/-. When objected to by the informant, the appellants allegedly abused him and his family members with obscene and caste-related remarks. On the basis of the written report of the informant, an investigation was conducted and a charge sheet was filed for the offences under Sections 447, 427, 294, 34 of the IPC read with Section 3(1)(v) of the SC & ST (P.A.) Act. 3. The prosecution examined six witnesses, including the informant (P.W.1), his wife (P.W.2), daughter (P.W.3), an eyewitness (P.W.4), a co-villager (P.W.5), and the Investigating Officer (P.W.6). The defence did not examine any witness and took the plea of complete denial, asserting that the case was falsely foisted due to previous enmity. It was also submitted that the trees were cut under the direction of one Bishnu Page 2 of 9 Charan Jena, a helper in the Electric Department, as the branches were obstructing overhead electric lines. 4. Upon analysis of the evidence, the learned trial Court acquitted the appellants of the offence under Section 3 of the SC & ST (P.A.) Act, noting that the investigation under the said Act was conducted by an officer below the rank of Deputy Superintendent of Police, thereby vitiating the prosecution on that score. However, the learned Court found sufficient evidence to convict the appellants under Sections 447, 427, and 294 read with Section 34 of the IPC. Accordingly, the appellants were sentenced to undergo Simple Imprisonment (S.I.) for six months under Section 427 IPC and to pay a fine of Rs.500/- each, in default to undergo S.I. for three months. They were further sentenced to pay a fine of Rs.500/- each under Sections 294 and 447 IPC, in default to undergo S.I. for three months each. The substantive and default sentences were directed to run consecutively. For the convenience of ready reference, the relevant paragraphs of the impugned judgment of the learned trial Court are reproduced hereunder: Page 3 of 9 “17. In such situation, for non-investigation of the offence under section 3, S.C. & S.T. (P.A.) Act by a competent police officer, a criminal proceeding for offence punishable under the Indian Penal Code can be allowed to take its own course. 18. However, offences under sections 447/427. I.P.C. are clearly established and although there is no specific charge for offence punishable under Section 294, I.P.C., as per the allegation, these accused persons were all-through facing charges on the allegation of abusing the informant, Padma Charan Behera (P.w.1) and his wife Pramila Behera (P.w.2), and as such, they are also liable for the offence under section 294, I.P.C. 19. The above acts being committed in furtherance of common intention of both the accused persons, thy are vicariously liable inviting section 34, I.P.C. 20. Accordingly, the accused persons are found guilty of the offences under sections 447/427/294/34, IPC and are convicted thereunder. 23. Heard and on conviction, they are sentenced to pay a fine of Rs.500/- (Rupees five hundred) each for the offences under sections 294/447, I.P.C., in default of payment of fine, to undergo S.I. for three months each and for offence under section 427. I.P.C., they are sentenced to undergo S.I. for six months each, and to pay a fine of Rs.500/- (Rupees five hundred) each and for default of payment of fine, to undergo further S.I. for three months each, directing further that the substantive sentence and default sentences to Page 4 of 9 run consecutively in the event of non-realisation of fine.” 5. During the course of hearing of the present appeal, Mr. Dillip Kumar Mishra, learned counsel for the appellants, did not assail the order of conviction on merits. He confined his submissions only to the quantum of sentence and prayed for extending the benefit of the Probation of Offenders Act, 1958 to the appellants. It was urged that the incident dates back to the year 1998, and the appellants have already suffered the ordeal of the judicial process for over 27 years. Both the appellants are first-time offenders and have no criminal antecedents. 6. Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State, fairly submitted that she has no objection if the benefit of probation is extended to the appellants, considering the nature of the offence and the circumstances of the case. 7. Heard Mr. D.K. Mishra, learned Advocate for appellants and Ms. S. Devi, learned Additional Standing Counsel, for the State. 8. I have carefully gone through the lower Court records and the impugned judgment passed by the learned Special Judge. It appears from Page 5 of 9 the record that the appellants have been convicted under Sections 447, 427, and 294, read with Section 34 of the IPC. The findings of the learned trial Court on conviction have not been seriously assailed during the course of hearing of this appeal, and therefore, the issue is confined only to the quantum of sentence imposed. 9. As admitted, the alleged occurrence took place on 20.09.1998, and the trial culminated in a judgment dated 11.04.2005. Appeal against the said judgment has been pending for over 19 years. The record reveals that the appellants have no prior criminal antecedents and are first-time offenders. The offences alleged and proved fall within the category of minor offences and are neither heinous nor of a grave nature. No act of violence is attributed to them in terms of causing bodily harm to any person. The nature of the offence, being confined to only trespass, causing property damage, and use of abusive language, does not display any continuing threat to the complainant or society. 10. From the record, it also appears that the appellants remained on bail throughout the pendency of the trial and appeal and did not misuse the liberty granted to them by the Court on any occasion. Considering Page 6 of 9 the protracted period over which the criminal proceedings have continued, it would not serve the ends of justice to impose imprisonment at this belated stage, especially when the appellants have already faced the ordeal of investigation, trial, and prolonged appeal for over two and a half decades. 11. In a recent judgment, the Allahabad High Court in Ram Naresh and Ors. vs State of U.P., reported in CRIMINAL APPEAL No. - 1211 of 2008 granted relief under the Probation of Offenders Act, 1958 to the appellants despite upholding their conviction. For convenience of ready reference, relevant part of the said judgment reads as under:- “22. Further the Hon'ble Apex Court in State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659 has extended the benefit of Probation of Offenders Act, 1958 to the appellants, and observed as under: "The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a Page 7 of 9 trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the of undergo accused imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour." sentence to 25. That Section 4 of the Act of 1958 is applicable where a person is found guilty of committing an offence where punishment is neither life sentence nor death. The Court may release such an accused on probation of good conduct on his furnishing a bond as mentioned in the Section. The Court in applying the provisions of this Section is also required to consider the circumstances of the case, character of the offender and nature of the offence before exercising its discretion. 29. That it is noteworthy that the incident took place way back in the year 2004. The accused-appellants have suffered in matter for past 20 years and there is no any criminal antecedent between the parties during these years. 30. Considering the fact and circumstances of the case, I am of the view that the benefit of provision of the Act of 1958 should be provided to the accused / appellants.” 12. Taking into account the circumstances of the case, including the lapse of more than two decades since the occurrence, the relatively minor nature of the offence, the absence of any aggravating Page 8 of 9 circumstances or subsequent misconduct, and the fact that the appellants are first-time offenders, I am of the considered view that this is a fit case where the benefit of Section 4 of the Probation of Offenders Act, 1958 can be extended. 13. 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 the appellants to suffer imprisonment, this Court directs the appellants to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Thousand) each within one month with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellants shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.
Decision
14. Accordingly, the CRLA is partly allowed and disposed of. The High Court of Orissa, Cuttack Dated the 18th of July, 2025/Subhasis Mohanty (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2025 19:11:30 Page 9 of 9