Allahabad High Court
Om Prakash And Ors. vs State Of U.P. on 3 August, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- CRIMINAL REVISION No. - 87 of 2011
Revisionist :- Om Prakash And Ors.
Opposite Party :- State of U.P.
Counsel for Revisionist :- Farooq Ayoob
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Dinesh Kumar Singh,J.
1. The present revision has been preferred against judgment order dated 3rd September, 2010 passed by the learned Additional Chief Judicial Magistrate, Court No.17, Barabanki in Criminal Case No.3295 of 2004: Crime No.233 of 2004, under Sections 323, 325, 504 IPC, Police Station Kothi, District Barabanki The revisionists were convicted and sentenced by the learned trial Court as follows:-
U/s 323 I.P.C. six months simple imprisonment;
U/s 325 I.P.C. two years' simple imprisonment and fine of Rs.2,000/- each and in default of payment of fine, two months additional simple imprisonment;
2. Learned counsel for the accused-revisionists submits that the accused-revisionists have not been convicted previously for any offence and they are the first time offenders. The learned counsel at the outset submits that he is not challenging the impugned order, confirming the order passed by the trial Court, but he is confining his submission only with respect to the order of sentence passed by the learned trial Court.
3. Learned counsel for accused-revisionists submits that in view of the aforesaid facts and circumstances, including the fact that the accused-revisionists 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').
4. 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-revisionists. The Trial Court has not given any special reason in the order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.
5. Learned counsel for the accused-revisionists submits that to that extent, the order passed by the learned trial Court suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.
6. 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.
7. The accused-revisionists 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 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.
8. Learned AGA appearing for the State does not dispute the fact that accused-revisionists are the first time offender and were not previously convicted in any other case. He also submits that in view of the express provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-revisionists 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.
9. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this revision is, accordingly, dismissed by upholding the conviction of the accused-revisionists. However, he is granted the benefit of Section 4 of the Act. The accused-revisionists are released on probation. Accused-revisionists shall file personal bonds 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. The accused-revisionists shall file the bond within a period of one month from today. As provided under Section 5 of the Act, the revisionists shall pay a compensation of Rs.45,000/- (rupees forty five thousand) (rupees fifteen thousand each) to the victim, if she is alive or her legal heirs as the case may be, within one month from today, which should be deposited before the trial Court for disbursement to the victim or her legal heir(s), as the case may be.
10. In case of breach of any of the said condition, the accused-revisionists will subject themselves to undergo the sentence.
11. Let the copy of this judgment as well as the lower court record, if received, be transmitted to the concerned Trial Court forthwith for necessary compliance.
12. Let the trial Court record be transmitted back forthwith.
Order Date :- 3.8.2022
prateek
