Kotwal, J.:— The alleged incident. In which the petitioner herein made certain utterances directed against the Sub-Inspector of Police has landed in difficulty giving rise to this proceeding. It occured on April 3, 1981 come time in the evening. The petitioner resides in Mohite Colony in Kadamwadf in Karvir taluka of Kolhapur district. The complainant Sub-Inspector Shinde who has in charge of the Cell dealing with the offences under the Protection of Civil Rights Act also resided in the said Colony at the relevant time as he was in charge of that village. Apparently, a minor quarrel ensued on account of the petitioner's going on public road for throwing the rubblish to which the complainant Sub-Inspector objected. The petitioner paid no heed and it is at that point of time she is claimed to have abused the Sub-Inspector communicating to him that he is cobbler by caste and he should leave the locality immediately as all the residents belong to Mara the Community. The complainant lodged the first information report at Shahupuri Police Station and ultimately the petitioner was charge-sheeted in the Court of the trial Magistrate under section 7(1)(d) of the Protection of Civil Rights Act on the allegation that she insulted the complainant Sub-Inspector on the ground of untouchability.
2. Complete denial of allegations is the defence taken by the petitioner. In the trial Court. According to her, she had refused to oblige the complainant by lending an Auto-Rickshaw and therefore, the Sub-Inspector has animosity against her.
3. The learned trial Magistrate on evidence accepted the complainant's case who was supported by the evidence of his son Baban and witness Babasaheb Patil and finding her guilty of the said charge sentenced her to suffer R.I for one month and to pay a fine of Rs. 100/- in default to suffer further R.I for one month.
4. The petitioner preferred Criminal Appeal No. 80 of 1982. In the Session Court at Kolhapur. The learned Additional Sessions Judge endorsed the finding of the trial Court and confirmed the order of conviction and sentence. That order is being challenged in this revision application.
5. At the out set it may be observed with advantage that Shri Mundargi, the learned Counsel appearing on behalf of the petitioner, makes a statement on instructions that he does not desire to challenge the conviction on merits, though he restricts this revision vis-a-vis the quantum of sentence. In view of this concession, it is unnecessary to go into the merits of the matter, though it cannot be over-looked that both the courts below have recorded a concurrent finding of fact believing the prosecution evidence against the petitioner which cannot be re-assessed in this limited jurisdiction. This apart, even on re-assessment, the conviction, appears to be justified on evidence.
6. As regards the quantum of sentence, the Courts below have inflicted sentence of one month's R.I and a fine of Rs. 100/-. The learned Magistrate observed that he found no reason to inflict a lesser sentence whereat the lower Appellate Court has not considered that aspect about the quantum of sentence. Shri Mundargi, the learned Counsel, has submitted with Justification that under the peculiar facts and circumstances, the sentence is on the harsher side. The petitioner is a lady aged about 30 years. There are no bad antecedents to her credit. She is married woman with three kids youngest being of one year. The alleged incident obviously occurred on the spur of moment and the alleged utterances were also out of momentary raising of temper all of a sudden. Beyond those bare utterances the petitioner did nothing more, though. It is true that it is almost an Irony when the Sub-Inspector who was in charge of the Cell to detect the offence under the Protection of Civil Rights Act had to file a case by himself about his own incident under the said Act. The petitioner was in custody for three days.
7. Having regard to all these features as also having regard to the nature of the incident, in my opinion. It is un-necessary to send the lady back to jail and she can well be released on the sentence already undergone in the interest of justice. It is true that under the Act the minimum sentence prescribed is to the tune of one month. However, in a similarly situated circumstances when the accused was tried for an offence under the Prevention of Food Adulteration Act wherein also a minimum sentence is prescribed as reported in 2(Umrao Singh v. State Of Haryana), (1981) 3 SCC 91, the Supreme Court awarded a sentence less than the one that was prescribed and in fact the accused therein was released on the basis of the sentence already undergone. Relying on the same anology as the situation is some what similar about the provisions of the two Acts, the petitioner herein also can be given the benefit instead of sending her back to the jail. The petitioner has already paid the fine.
8. Rule made partly absolute. The conviction of the petitioner is endorsed. However, the sentence imposed by the Courts below is modified to the effect that the petitioner is sentenced to suffer imprisonment for a term which she has already undergone with the retention of the payment of fine or in default to suffer the term of imprisonment as directed by the Courts below.