Allahabad High Court
Shrimati Mithlesh Srivastava vs State Thru. Central Bureau Of ... on 6 July, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- CRIMINAL REVISION No. - 38 of 2021
Revisionist :- Shrimati Mithlesh Srivastava
Opposite Party :- State Thru. Central Bureau Of Investigation Acb Lucknow
Counsel for Revisionist :- Shreesh Chandra,Alok Shukla,Ayodhya Prasad Shukla
Counsel for Opposite Party :- Shiv P. Shukla
Hon'ble Dinesh Kumar Singh,J.
1.In pursuance of the order passed by this court on 17-12-2021, the accused-revisionist has deposited the amount of Rs. 50,000/- in the Treasury and also submitted proof of the amount of said deposit.
2. The present revision has been preferred against judgment and order dated 29-11-2016 passed by the Special Judicial Magistrate, C.B.I., Lucknow in Criminal Case No. 6800136 of 1989, State Versus Ajit Kumar & Others, convicting the revisionist under sections 120-B, 420, 467,468 & 471 I.P.C. and also the Judgment and order dated 18-12-2020 passed by the Additional Sessions Judge/Special Judge, Anti Corruption, CBI, Court No. 2, Lucknow in Criminal Appeal No. 273 of 2016, confirming the sentence of two years' rigorous imprisonment and fine of Rs. 2,000/- under section 120-B I.P.C. In default of payment of fine, the revisionist was directed to undergo two weeks further rigorous imprisonment. The revisionist was also convicted and sentenced for two years rigorous imprisonment and fine of Rs. 2,000/- under section 420 I.P.C. and in default of payment of fine, she was to undergo further two weeks' rigorous imprisonment. Under section 467 I.P.C., the revisionist was convicted and sentenced for three years' rigorous imprisonment and to pay a fine of Rs. 3,000/- and in default of payment of fine, she was further directed to undergo three weeks' rigorous imprisonment. Under section 468 I.P.C., the revisionist was convicted and sentenced for two years' rigorous imprisonment and to pay a fine of Rs. 2000/- and in default of payment of fine, she was further directed to undergo two weeks' rigorous imprisonment. The revisionist was also convicted and sentenced under section 471 I.P.C. for three years' rigorous imprisonment and to pay a fine of Rs. 3,000/- and in default of payment of fine, she was further to undergo three weeks' rigorous imprisonment.
3. Learned counsel for the accused-revisionist submits that the accused-revisionist has not been convicted previously for any offence and she is the first time offender. The learned counsel at the outset submits that she is not challenging the impugned order, confirming the order passed by the trial Court, but she is confining her submission only with respect to the order of sentence passed by the learned trial Court.
4. Learned counsel for accused-revisionist submits that in view of the aforesaid facts and circumstances, including the fact that the accused-revisionist has 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').
5. 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-revisionist. 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.
6. Learned counsel for the accused-revisionist 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.
7. 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.
8. The accused-revisionist 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.
9. Learned AGA appearing for the State does not dispute the fact that accused-revisionist 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 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-revisionist 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.
10. 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-revisionist. However, she is granted the benefit of Section 4 of the Act. The accused-revisionist is released on probation. Accused-revisionist shall file personal bond to the tune of Rs. 50,000/- and she shall keep peace in the society and shall not commit any such offence in future. This bond shall be for one year. The accused-revisionist shall file the bond within a period of one month from today.
11. In case of breach of any of the said condition, the accused-revisionist will subject herself to undergo the sentence.
12. 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.
Order Date :- 6.7.2022
AKS
