Allahabad High Court
Suresh And Ors.(3) vs State Of U.P. on 30 July, 2021
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL APPEAL No. - 501 of 2002
Appellant :- Suresh And Ors.(3)
Respondent :- State of U.P.
Counsel for Appellant :- Rakeshwar Prasad,M.L. Syal
Counsel for Respondent :- Govt.Advocate
Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the appellants Mr. Arun Sinha, learned A.G.A. and perused the record.
2. Present criminal appeal has been filed under Section 374 CrPC against the judgment and order dated 9.4.2002, passed by Upper Sessions Judge Hardoi (F.T.C.) in S.T. No. 188 of 1993 convicting the appellants 6 months R.I. in Section 323 I.P.C., 2 years R.I. in Section 325 read with Section 34 I.P.C. and fine of Rs.1000/- each in default of payment of fine three months imprisonment and further 4 years R.I. in Section 308 read with Section 34 IPC and fine of Rs.2000/- in default of payment of fine further 6 months simple imprisonment.
3. Learned counsel for the appellants, at the outset, submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission only with respect to the order of sentence.
Appellants' counsel submits that the incident is of the year 1992. The matter is almost 30 years old. It was the first offence of the appellants. Apart from this case they have no other criminal history.
Appellants' counsel prays that looking to the time period which has lapsed since the date of incident, they may be given benefit of either under Section 360 CrPC. or under the provisions of the Probation of Offenders Act, 1958 (in short, 1958 Act).
He further submits that in view of the facts and circumstances including the fact that the accused appellant has not been convicted previously for any offence, the trial court ought to have invoked the provisions of the Probation of Offenders Act, 1958.
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 1958 Act, as provided in Section 361 CrPC.
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.
4. 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.
The accused-appellants have 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 Section 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.
5. Learned A.G.A appearing for the State does not dispute the fact that accused-appellants is the first time offender and was not previously convicted in any other case. He also submits that in view of the express provisions of Section 360 Cr.P.C., considering the facts and circumstances, nature of the offence, 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.
6. In view of the above facts and circumstances mentioned above, including the fact that the appellants does not have any criminal antecedent and is the first offender, the case law, referred to above as also the scope of section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction and fine against the accused-appellants. However, he is granted the benefit of Section 4 of the Act.
7. The accused-appellants are released on probation. The accused-appellants shall file personal bonds to the tune of Rs.20,000/- and they shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year. In case of breach of any such condition, the accused-appellants will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bonds within a period of one month from today.
8. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 30.7.2021
Madhu
