Lok Nath & Another. vs State Of U.P.
2018 Latest Caselaw 647 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
 									AFR
 

 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 96 of 2001
 

 
Appellant :- Lok Nath & Another.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.S.Shukla,Niyaj Ahmad
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rajnish Kumar,J.

1. The instant appeal has been preferred by the appellants Lok Nath and Dev Chandra alias Dev Chander under Section 374 of the Code of Criminal Procedure against the judgment and order dated 31.01.2001 passed by the learned Additional Sessions Judge, VI, Gonda in Sessions Trial No. 48 of 1994, vide Case Crime No. 77 of 1991, under Section 308 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.)awarding four years rigorous imprisonment to each of them with a fine of Rs. 2000/- each and in the event of non-payment of fine, the accused will have to undergo six years rigorous imprisonment. It has further been provided that on deposit of the fine,Rs. 3,000/- would be paid to the injured Gaya Dutt as damages.

2. Learned counsel for the appellants submitted that accused-appellants have not been convicted previously for any offence and they are the first time offender. He further submitted that the appellants had also prayed before the learned Trial Court that they have not been convicted previously and they are the first time offender and they are from the elite family and of lesser age and they are the only earning members in the family, accordingly, they may be granted the benefit of first offender. Though the learned Trial Court considered the same but even then awarded the punishment as aforesaid.

3. As per the prosecution case, the accused-appellants Lok Nath and Dev Chandra had inflicted grievous injuries upon Gaya Prasad Mishra by assaulting him with Lathi's near the house of Ram Pratap Harijan, by which the death was possible. The report of the incident was lodged at Kotwali Dehat and the medical examination of the injured was conducted. After investigation, a chargesheet was submitted under Section 308 and 323 I.P.C. After framing of the charge, the same was denied by the accused. Accordingly, the trial was conducted. After the evidences were adduced and the statement under Section 313 Cr.P.C. was recorded,defence witness was also examined by the trial court. After considering the evidence adduced before it, the learned Trial Court convicted the appellants under Section 308. On the question of punishment, the accused-appellants claimed the benefit of first offender on the grounds that they are from the elite family and the only earning members in their family. Considering the same, the punishment as aforesaid was awarded to the accused vide judgment and order dated 31.01.2001. Accordingly, the appellants had preferred the present appeal.

4. The submission of the learned counsel for the accused-appellants is that the appellants are not challenging the impugned judgment and order of conviction on merit and they are confining their prayer in the appeal only with respect to the order of sentence.

5. In view of the aforesaid submission of the learned counsel for the accused-appellants, the appeal is liable to be dismissed so far as it relates to the impugned judgment and order of conviction passed by the learned Trial Court dated 31.01.2001and the impugned judgment and order of conviction dated 31.01.2001 is liable to be upheld.

6. Learned counsel for accused-appellants submitted that in view of the aforesaid facts and circumstances including the fact that the accused-appellants have 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').

7. The Trial Court did neither considered nor invoked the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. 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, though the submission of the appellants was considered for awarding punishment.

8. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and therefore, it cannot be sustained. Further 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 benefit of Section 360 of the Code or Section 3 or 4 of the Act.

9. Considering the aforesaid submissions of the learned counsel for the appellant, I have considered the prayer of the appellants in regard to the relevant provisions of Sections 360 and 361 of Cr.P.C. and the Probation of Offenders Act,1958.

10. Section 360 relates to order to release on probation of good conduct or after admonition. The same is reproduced as hereinafter:

Section 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.

11. Section 361 of the Code of Criminal Procedure, 1973 provides that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so.

Section 361 of the Code of Criminal Procedure is extracted hereinafter:

Section 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.

12. The Probation of Offenders Act, 1958 has been enacted for the release of offenders on probation or after due admonition for matters connected therewith. The said Act has been promulgated in view of the fact 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.

13. The relevant provisions of Section 3 & 4 of the Act of 1958 are extracted hereinafter:

Section 3. Power of court to release certain offenders after admonition.--

When 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.

Section 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.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

Thus Section 3 provides for release of certain offenders after admonition when 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, 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.

14. Section 361 of the Code of Criminal Procedure specifically provides that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so.The Act does not create any distinction between the character of the offender and the provisions of Section 4 of the Probation of Offenders act. The provision can be applicable to any case where the convicted is found guilty for having committed an offence not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court as in the case of Smt. Devki Versus State of Harayana reported in 1979, (3) SCC 760 where the Hon'ble Supreme Court has held that benefit of Section 4 of 1958 Act could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni the Hon'ble Supreme Court declined to extend the benefit of the 1958 Act to an accused found guilty of gold smuggling.

15. The Hon'ble Supreme Court in the case of Dalbir Singh versus State of Haryana (2000) 5 SCC 82 has held that the Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence".

Further it has been held that Section 4 casts a duty on the court to take into account the circumstances of the case including the nature of the offence. The relevant paragraphs 8, 9 and 10 of the said judgment are reproduced hereinafter:

8.Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence".

9.Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Block's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors., AIR (1974) SC 2233 a three Judge Bench of this Court has considered the word "expedient''. Learned Judges have observed in paragraph 21 thus :

10.Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conducive to special advantage rather than to what is universally right' (see Webster's New International Dictionary)."

It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the P.O. Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.........". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. Courts must bear in mind that when any plea is made based on Section 4 of the P.O. Act for application to a convicted person under Section 304-A of IPC, that road accidents have proliferated to alarming extent and the toll is galloping up day-by-day in India, and that no solution is in sight not suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country" the saturation of accidents toll was not even half of what it is today. So V.R. Krishna Iyer, J., has suggested in the said decision thus :

"Rashness and negligence are relative concepts, not absolute ab-stractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces."

16. Considering the above submissions and the relevant law on the point, I am of the view that the accused has statutory right for 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.

17. Here in the present case, the learned Trial Court though considered the claim of the appellants for benefit of the first offender but awarded the punishment and does not record any reason for not granting the benefit of the first offender, which is in contravention of Section 361 of the Code of Criminal Procedure, 1973 wherein the duty has been cast upon the court that if it does not deal with the case under the provisions of Section 360 or under the provisions of the Probation of Offenders Act, 1958, it shall record in its judgment the special reasons for not having done so.

18. Therefore I am of the view that learned trial court has committed an error in neither granting the benefit of the said provisions nor recording reasons for not granting the benefit.

19. Learned AGA appearing for the State, on the basis of records, does not dispute the fact that accused-appellants are the first time offenders and were not previously convicted in any other case. He also does not dispute that in view of the express provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, evidence adduced, the character of the accused-appellants and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act can be granted in this case.

20. In view of the aforesaid facts and circumstances this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellants. However, the appellants are granted the benefit of Section 4 of the Act. The accused-appellants are released on probation. The accused-appellants shall file personal bonds and two sureties in the like amount to the tune of Rs.25,000/- each within a period of two months from the receipt of certified copy of this order and they shall keep peace in the society and shall not commit any offence in future. These bonds shall be for a period of two years. In case of breach of any of the above condition, the accused-appellants will be taken into custody to undergo the sentences awarded by the Trial Court as per law.

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

Order Date : 18.05.2018/Akanksha S.