Allahabad High Court
Salik Ram And Another 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. - 1367 of 2005
Appellant :- Salik Ram And Another
Respondent :- State of U.P.
Counsel for Appellant :- R.N.S. Chauhan
Counsel for Respondent :- Govt. Advocate
Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the appellant No.2, the appeal against appellant No.1 Salik Ram having already abated as recorded in order dated 21.1.2020, learned A.G.A. and perused the record.
2. Present criminal appeal has been filed under Section 374(2) CrPC against the judgment and order dated 26.9.2005, passed in Sessions Trial No.123 of 2003 whereby the appellant No.1 has been convicted under Section 323 I.P.C. and sentenced to undergo one year R.I. and to pay fine of Rs.500/-, with default provision and further convicting both the appellants under section 308 I.P.C. read with section 34 I.P.C. and sentenced them to undergo three years R.I. and to pay fine of Rs.1000/- each, with default provision.
3. Learned counsel 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.
Appellant's counsel submits that the appellant No.2 is not a previous convict. It is submitted that the said appellant is the first offender and he may be given the benefit of 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-appellant 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-appellant 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 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 AGA appearing for the State does not dispute the fact that accused-appellant 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-appellant and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of 1958 Act can be granted in this case.
6. In view of the above facts and circumstances mentioned above, including the fact that the appellant does not have any criminal antecedent and is the first offender, as also the scope of section 4 of the Act, this appeal is dismissed by upholding the conviction and imposition of fine of the accused-appellant. However, the appellant is granted the benefit of Section 4 of 1958 Act.
7. The accused-appellant Sri Ram is released on probation. The said 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. The bond shall be for one year. In case of breach of any such condition, the accused-appellant 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.
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
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