Allahabad High Court
Paltu vs State Of U.P. on 20 May, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL APPEAL No. - 459 of 1998
Appellant :- Paltu and others
Respondent :- State of U.P.
Counsel for Appellant :- Shrawan Kumar,Surya Kant Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Dinesh Kumar Singh,J.
1. The present appeal has been preferred against the judgment and order dated 23.07.1998 passed by the IInd Additional Sessions Judge, Bahraich in Sessions Trial No.0179 of 1989 convicting and sentencing the appellants under Section 323 IPC 1 year's rigorous imprisonment and fine of Rs.1,000/- each and under Section 342 IPC 6 months rigorous imprisonment and fine of Rs.500/- each and, in default of payment of fine, 2 months further rigorous imprisonment
2. Learned counsel for the appellants submits that appellants 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 judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.
3. Learned counsel for appellants submits that in view of the fact that the accused-appellants 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 appellants. 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 Act, 1958.
5. Learned counsel for the 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.
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 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 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 the appellants are the first time offenders 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 appellants and particularly, the time period, which has lapsed since the date of incident, the benefit of Section 3 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 3 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the appellants. However, they are granted the benefit of Section 3 of the Act. The appellants are released on probation. The 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 appellants will subject themselves to undergo the sentences before the Trial Court as per law.The appellants shall file the bonds within a period of one month from today.
10. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 20.5.2022
MVS/-
