MAHENDRABHAI KARSANBHAI RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner above named, has preferred this criminal revision application under section 397 read with section 401 of the Criminal Procedure Code, 1973 (for short, 'the Code'). The petitioner was prosecuted before the learned Metropolitan Magistrate, Court no.12, Ahmedabad in Criminal Case No.649/90 filed by way of a private complaint by respondent no.2 herein, who is no more. It is reported that respondent no.2 has passed away. The said respondent had filed the aforesaid criminal case against the present petitioner for offence punishable under section 497 of IPC.

(2.) The case of the second respondent (now deceased) original complainant in the aforesaid criminal case was that the deceased Chandulal Shitalbhai had contracted marriage with one Shakuntala on 28.4.1980 and since then they were staying as husband and wife in the house of Chandulal. However, Shakuntala did not like Chandulal and she developed relations with the petitioner who used to visit her house at Ahmedabad even in absence of Chandulal since Chandulal was serving as a Driver in S.T. Corporation and hence, was often required to go out. Chandulal came to know about the relationship and on an inquiry on 25.8.1990, he could find out photographs of the petitioner and Shakuntala. Some letters were also seen. Then on 26.8.1990, Chandulal went out, as usual, to attend to his duty but soon returned at about 10 a.m. and found from a window of his house that the petitioner and Shakuntala were together in the room in a compromising position. Some other witnesses also saw this incident. Chandulal filed private complaint against the petitioner. The complaint was registered and the present petitioner appeared before the said court which, after completing the trial, convicted the petitioner for the said offence and sentenced him to suffer R.I. for three years. The petitioner was directed to pay fine of Rs.5,000.00 for the said offence and in default of payment of fine, he was directed to suffer further R.I. for 9 months by order dated 15.4.1998. The petitioner felt aggrieved by the said judgment and conviction order of the learned Magistrate and, therefore, he preferred Criminal Appeal No.60/98. The learned Addl.Sessions Judge, Court No.23 disposed of the said criminal appeal by judgment and order dated 15.3.1999. There the learned Addl.Sessions Judge partly allowed the said appeal. He confirmed the conviction of the petitioner for the said offence. However, the sentence of three years was reduced to two years keeping in tact the order of payment of fine and the sentence in default of payment of fine. Feeling aggrieved by the said judgment and order of the learned Addl.City Sessions Judge, the petitioner has preferred this revision application before this court. It has been mainly contended in this revision application that the two courts below have not properly appreciated the fact that this was a fit case for extending probation under the Probation of Offenders Act, 1958. That even looking to the age of the petitioner it was obligatory on the part of the two courts below to extend the said benefit. Even otherwise, the orders are erroneous and illegal and it deserve to be quashed and set aside. The petitioner has therefore, prayed for setting aside those conviction and sentence orders, in the alternative, a prayer has been made to extend benefit of probation under the Probation of Offenders Act, 1958.

(3.) On receipt of the said revision application, rule was issued and Mr B D Desai, learned APP appears for the State of Gujarat. However, the second respondent being the original complaint in the aforesaid criminal case has passed away and there is no dispute about the same.