Allahabad High Court
Shiv Shanker Soni vs State Of U.P. And Anr. on 11 May, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL REVISION No. - 288 of 2011
Revisionist :- Shiv Shanker Soni
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Lakshman Singh
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh,J.
1. The present revision has been preferred against judgment order dated 5.7.2011 passed by the Additional Sessions Judge, Court No.7, Sultanpur, by means of which Criminal Appeal No.49 of 2010 has been partly allowed and the judgement and order dated 20.4.2010 passed by the learned trial Court in Criminal Case No.1584 of 2001, under Sections 498-A/34, 323/34, 504, 506 IPC, and Sectin Dowry Prohibition Act, Police Station Kotwali Nagar, District Sultanpur has been Partly confirmed. The revisionist was convicted and sentenced by the learned trial Court as follows:-
U/s 498-A I.P.C. one year simple imprisonment and fine of Rs.2,000/-;
U/s Dowry Prohibition Act, one year simple imprisonment and fine of Rs.2,000/- and in default of payment of fine, one month additional imprisonment.
2. Learned counsel for the accused-revisionist submits that the accused-revisionist has not been convicted previously for any offence and he is the first time offender. 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-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').
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-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.
5. 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.
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-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.
8. 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.
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-revisionist. However, he 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.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-revisionist shall file the bond along with this order within a period of two weeks from today. As provided under Section 5 of the Act, the revisionist shall deposit Rs.25,000/- (rupees twenty five thousand) in the account of Army Battle Casualty Welfare Fund, New Delhi and will submit the receipt of deposition along with personal bond.
10. In case of breach of any of the said condition, the accused-revisionist will subject himself 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.
Order Date :- 11.5.2022
Rao/-
