Kanna @ Chotey vs State Of U.P.
2017 Latest Caselaw 7518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 31
 
Case :- CRIMINAL APPEAL No. - 127 of 2001
 
Appellant :- Kanna @ Chotey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Rafique,Wasim Ahmad
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. This appeal arises out of the judgment and order dated 31.01.2001 passed by the Vth Additional Sessions Judge, Sitapur in Sessions Trial No.436 of 1994 under Sections 452, 307 and 506 of Indian Penal Code (hereinafter referred to as ''IPC') arising out of Case Crime No.53 of 1989 registered at Police Station Machhrehta, District Sitapur convicting the appellant under Section 308 IPC for two years rigorous imprisonment with a fine of Rs.2000/- and further conviction under section 452 IPC sentencing him for two years rigorous imprisonment. It was directed that both sentences will run concurrently.

2. On 04.04.1989, on the oral information given by the complainant, Ram Swaroop, the case crime (Supra) was registered. The allegations against the accused-appellant and others are that Jagdish, Kanna @ Chotte, Nanhu and Ram Ashrey, all sons of Dhani Ram, resident of same village attacked the complainant's family members when they were sitting in their courtyard. It was alleged that Jagdish fired from country made pistol which got missed. Immediately, thereafter Kanna @ Chotte fired from another country made pistol which hit complainant's brother Dalla on the head.

3. After investigation, charge sheet was filed and charges were framed against accused-appellant Kanna @ Chotte and Jagdish under Sections 452, 307 and 506 IPC. The Trial Court on considering the evidence, (oral and documentary) on record found the accused-appellant guilty under sections 308 and 452 IPC whereas Jagdish was acquitted of all the charges. The accused-appellant was convicted under section 308 IPC for two years rigorous imprisonment with fine of Rs.2000/-and two years rigorous imprisonment under Section 452 IPC. In the event of failure to pay fine, it was directed that the accused would undergo additional sentence of two months. Both sentences were directed to run concurrently.

4. At the outset, learned counsel for the accused-appellant submits that he is not challenging the impugned judgment and order of conviction and he is confining his submissions in the appeal only with respect to order of sentence.

5. In view of the aforesaid submission of learned counsel for the accused-appellant, the appeal is dismissed so far as it relates to the impugned judgment and order of conviction passed by the learned trial Court. The impugned judgment and order of conviction passed by the learned Trial Court is hereby, upheld.

6. The punishment provided under section 308 IPC is up to seven years with or without fine. The punishment provided under section 452 IPC is also up to seven years with or without fine. Thus, the punishment for offences under both the provisions under which accused-appellant was convicted is upto seven years.

7. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances including the fact that the accused-appellant had not been convicted previously for any offence, the trial court ought to have invoked the provisions of ''The Probation of Offenders Act, 1958 (hereinafter referred to as '' the Act').

8. The Trial Court did neither invoke the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellant. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

9. Learned counsel for the accused appellant submits that to that extent, the impugned judgment and order suffers from serious illegalities being violative of provisions of section 360 Cr.P.C. and therefore, it cannot be sustained.

10. The Probation of Offenders Act, 1958 has been enacted to provide for the release of offenders on probation or after due admonition and for matters connected therewith. In the Statement of Objects and Reasons of the Bill, it is said that there has been increasing emphasis on the reformation and rehabilitation of the offender as useful and self reliant member of the society without subjecting him to the deleterious effects of jail life. In view of the widespread interest in the probation system in the country, the Parliament thought it fit to bring centralized legislation on the subject which would be uniformly applied in all States.

11. The relevant provisions of the Act, viz., Section 3 and 4 are extracted hereunder:-

3. Power of court to release certain offenders after admonition.-"Where any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

4. Power of Court to release certain offenders on probation of good conduct.-(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, notwithstanding 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:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."

12. Thus, Section 3 of the Act is applicable in respect of the offences specifically mentioned viz., Sections 379, 380, 381, 404 and 406 and other offences under IPC where punishment is upto two years with or without fine or under any other law if the accused has not been previously convicted. The Court finding guilty can release the accused after due admonition. While applying the provision of this section, the Court is required to consider inter-alia nature of the offence and character of the accused to form an opinion whether to apply this provision or not. It is discretion vested in the Court which needs to be exercised on due consideration of the circumstances of a particular case.

13. Section 4 of the Act 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 that the accused was not previously convicted, the circumstances of the case, character of the offender and nature of the offence before exercising its discretion.

14. Sections 360 and 361 of Criminal Procedure Code (hereinafter referred to as ''Code') read as under:-

" 360. Order to release on probation of good conduct or after admonition.

(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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:

Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so."

15. From the reading of Sections 3 and 4 of the Act and Section 360 of Cr.P.C. it is apparent that there is over lapping or duplicacy to some extent. Section 3 of the Act is applicable in respect of specified offences mentioned viz., Sections 379, 380, 381, 404 and 420 IPC and other offences where the punishment is up to two years, with or without fine and if the offender has not been convicted previously. The offender can be given the benefit of Section 3 of the Act taking into consideration the circumstances of the case, character of the offender and the nature of the offence committed by him. Sub-Section 3 of Section 360 of Cr.P.C. specifies the offences and other offences under IPC where the punishment is upto two years or only fine but it does not talk about the offences under any other law than the IPC. Thus, Section 3 of the Act has wider scope inasmuch as it can be applied for an offence under any law where the punishment is upto two years.

16. Sub section 1 of Section 360 of Cr.P.C. makes a distinction between the offenders under age of 21 years or a woman offender and the offenders above age of 21 years. In case of an offender above the age of 21 years, the benefit of sub-section 1 of Section 360 Cr.P.C. can be granted, if the punishment or imprisonment provided for the offence is upto seven years, but for an offender below, the age of 21 years or a woman, the court can grant the benefit of Sub-section 1 of Section 360 Cr.P.C. for any offence where the punishment is not the death or imprisonment of life.

17. On the other hand, sub-section 4 of the Act does not create any distinction between the category of offenders and the provision of Section can be made applicable in any case, where the offender is found guilty for committing an offence, which is not punishable with death or imprisonment for life. Thus, the scope of Sections 3 and 4 of the Act are wider when compared to Section 360 of Cr.P.C.

18. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act.

19. Shri S.P. Singh, learned AGA for the State does not dispute the fact that the accused appellant is the first time offender and he was not previously convicted in any offence. His conviction is under Sections 308, 452 IPC where the punishment is up to seven years.

20. The accused-appellant has statutory right of claiming the benefit of beneficial legislation i.e. the provisions of the Act and the learned trial court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act were not applied, then the learned trial court should have recorded reasons for the same.

21. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellant. However, he is granted the benefit of Section 4 of the Act. Instead of sentencing the accused-appellant for two years rigorous imprisonment under section 308 IPC and two years rigorous imprisonment under Section 452 IPC., the accused-appellant is released on probation. The accused-appellant shall file personal bond to the tune of Rs.20,000/- and he shall keep peace in the society and shall not commit any such offence in future. This bond shall be for one year. In case of breach of any such condition, the accused will subject himself to undergo the sentences before the Trial Court as per law. The accused-appellant shall file the bond within a period of one month from today.

22. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.

Order Date :- 1.12.2017

Pks