1. The State of Maharashtra by this revision Application challenges the order of conviction recorded by the Judicial Magistrate, First Class, Mehkar, in Criminal Case No, 533 of 1971 holding guilty accused Nos. 1 to 3 of the offences charged but giving them benefit of the provisions of Section 4 of Probation of Offenders Act. According to the State of Maharashtra, such a lenient view should not have been taken by the learned Magistrate considering the nature of the evidence and the character of the offence. It appears that this Court, while granting the rule, issued rule so far as Accused No. 1 Ramaji and his another son Laxman, but rejected the request of the State so far as accused No. 3 was concerned who was another son of accused No. 1,
2. The facts in brief are as under: On 16th of June 1971, Police Constable Magar, who is a complainant, was on Bazar Duty at village Dongaon in Mehkar taluq of District Buldana. At about S p.m. he saw many persons running towards the direction of Rest House. He felt curious. Therefore, he also thought of going to see what was going on in the Rest House. When he went in the compound of the Rest House, he saw that Laxman Go-vinda, who is examined as P.W. 1 at the trial, was being beaten by four accused persons. Accused No. 1 Ramaji is a Cook. Accused 'Nos. 2 and 3 are his sons and accused No. 4 is his wife, who was acquitted in the trial Court because her name did not transpire in the investigation though she was made an accused. When a person was assaulted by three persons, especially the servants employed in the Rest House, the Constable thought his duty to restore peace and to rescue Laxman Govinda. It appears that Laxman Govinda and other labourers, who were employed by the B. & C. department for work had come to the Rest House because they are paid their wages at Dongaon on the weekly bazar day. P.W. Laxman was one of them and some dispute had started between Laxman on one hand and the Khansama (Accused No. 1) on the other hand. It appears, according to the version given by the Khansama, that is, accused No. 1 Ramaji, that this Laxman was in the habit of smoking Chillum. Drinking water was kept in an earthen pot. A cloth used for the Chillum was put in that drinking water and the drinking water was spoiled by Laxman. Accused No. 1 got enraged and asked him to leave the Rest House premises. It appears, according to the version of accused No. 1, that Laxman was drunk and when Laxman started abusing and broke the glass of the door of the Rest House, scuffle started between accused No. 1 on one hand and this Laxman. At this moment Dashrath Magar came and intervened. According to the version of Dashrath Magar, when he intervened, the four accused started assaulting him. They gave him fist blows, kicks, abused him and asked him who he was to intervene in their quarrel, though he was in a police uniform. According to the version of accused No. 1, when the incident was going on and constable Magar came there, Magar intervened but started abusing him filthily. He also beat him (accused No. 1) with a cane. Thereafter he filed a report at Police Station, Mehkar. Similarly, Magar lodged his report (Ex. 15) against the accused at the police station pursuant to which investigation was made and trial against accused was proceeded in the Court of Judicial Magistrate, First Class, Mehkar.
3. At the trial a charge was framed against the four accused that on 16th of June 1971 at about 3 p.m. at Dongaon in the compound of the Dak-bungalow they voluntarily obstructed constable Dashrath, a public servant, in the discharge of his public functions. They were charged under Section 186 as well as under Section 353 and in the alternative a charge under Section 353 read with Section 34 was framed. The accused pleaded not guilty to the charge and the trial proceeded. The learned Judge on appraisal of the evidence, came to the conclusion that the prosecution proved an offence under Section 353 of the Indian Penal Code having been committed by accused Nos. 1 to 3, i. e. the Khansama and his two sons. However, the learned Judge felt that this was a case where provisions of Section 4 of the Probation of Offenders Act should be used and instead of sentencing accused Nos. 1 to 3 at once to punishment they be released on probation of good conduct under Section 4 (1) of the Probation of Offenders Act on the condition that each of them exe-' cutes a bond of Rs. 500/- with one surety in the like amount to appear and receive sentence when called upon during the period of two years and in the meanwhile to keep peace and be of good behaviour.
4. This order of sentence is challenged by the State of Maharashtra as stated above. Shri Mor. the learned Advocate for the State, submitted that in the instant case Shri Magar who was a police constable and who was attending the Bazar because he was given bazar duty on that day, went in the Rest House because many persons ran in that direction. He found a quarrel going on and it was his duty to restore peace. Therefore, he intervened. But the accused took the law in their own hand and assaulted a public servant, Therefore, a serious view of the matter should have been taken by the learned Judge. He, therefore, submits that in such cases benefit of Section 4 should not have been given by the Magistrate.
5. After carefully considering the evidence on record and after considering the submissions, I am unable to persuade myself to accept the submission of Shri Mor. Section 4 (1) of the Probation of Offenders Act runs as under:--
4. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, not with standing anything contained In any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
6. It will be clear that when a person is found guilty of having committed an offence which is not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release the offender on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may resort to the provisions of Section 4 (1) of the Probation of Offenders Act. In the instant case the Court had held the three accused guilty under Section 353 of the Indian Penal Code. Maximum sentence prescribed under Section 353 is imprisonment of either description for a term which may extend to two years, or with fine, or with both. Therefore, the case fell squarely within the provisions of Section 4 (1) if it satisfied the other conditions. While considering the question of granting benefit the Court has to consider the circumstances of the case, nature of the offence and the character of the offender. Now the circumstances of the ' case established in this case would show that accused No. 1, who was employed as a servant by B. and C. department as a Khansama (Cook) in the Rest House at this village, was staying within the compound of the Rest House, Labourers were coming on weekly bazar day for collecting their wages and a person who was paying them the wages must be also camping or must be distributing the amount of wages in the Rest House. Therefore, those labourers had collected there. It is seen from the version of the accused that this Laxman spoiled the drinking water while according to Laxman, he felt thirsty and he wanted water to drink' and he demanded water from accused No. 1, whereupon accused No. 1 was enraged and some hot exchange of words took place between them. It appears that glasses of the door of the Rest House were broken and this is not disputed. Therefore, the incident arose out of a sudden quarrel and when this quarrel was going on, the complainant came there and tried to intervene. The version of accused No. 1 shows that while intervening, he gave a cane blow and also abuses. Such suggestions have been made and, therefore, it appears that accused was enraged and then further incident had taken place. It does not appear that there was any premeditation on the part of the accused to belabour or to deter the public servant or to assault him while he was discharging his public duty. In the course of the quarrel which was already taking place this fellow had come to intervene and even if what accused No. 1 says does not seem to be true, still in a heat of passion the further incident must have. taken place. Therefore, the circumstances of this case do not warrant that a man of 60 years old or his son should be sent to jail to suffer imprisonment for such an' offence. It is also seen that no serious or any external injuries were suffered by the complainant. I do not thereby mean to express that if there are no external injuries found, no offence is caused. But that is also a circumstance which has to be taken into consideration while considering the nature of the offence that is established against the accused. The character of the offender has also to be taken into consideration. They have no previous conviction on any account. They are not shown to be the persons always quarrelling with other persons. On the contrary, accused No. 1 is also a government servant as the complainant is. Therefore, cumulative effect c these circumstances go to show that the learned Judge did not err in exercising his discretion in granting benefit of the provisions of Section 4 (1) of the Probation o Offenders Act, to accused Nos. 1 to 3. I am, therefore, of the opinion, that this is not a fit case in which that discretion of the learned Judge should be upset. In the result the rule is discharged.