Allahabad High Court
Lallu vs State Of U.P. on 2 November, 2022
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- CRIMINAL REVISION No. - 45 of 2013
Revisionist :- Lallu
Opposite Party :- State of U.P.
Counsel for Revisionist :- S.N. Goswami
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Rajeev Singh,J.
1.Case called out in the revised list. No one is present on behalf of revisionist.
2. Heard Shri Veer Raghav Chaudhari, learned A.G.A. for the State.
3. The present criminal revision has been preferred against the judgment and order dated 15.01.2013 passed by Additional Sessions Judge/Special Judge, (S.C./S.T. Act), Balrampur in Criminal Appeal No.05 of 2008, whereby he confirmed the judgement and order dated 13.02.2008 passed by Judicial Magistrate-IInd, Balrampur in Criminal Case No.1090/06 of 2000, under Section 411 I.P.C. upholding the conviction of revisionist under Section 411 I.P.C. for three years imprisonment and fine of Rs.5000/-. In default of payment of fine, further simple imprisonment for six months.
4. As per the prosecution case, on the information of the informant, revisionist along with one Ahamd Ali were arrested along with 35 kg of the stolen wire, when they were carrying it for melting the same. On 02.07.2000, FIR as Case Crime No.97 of 2000 was lodged against them for theft of electric wires. After investigation, charge-sheet was filed by the Investigating Officer against the revisionist. The charge was framed against the revisionist, who denied the guilt and requested for trial.
5. The trial court, after considering the deposition of five prosecution witnesses as well as statement recorded under Section 313 Cr.P.C., convicted the revisionist for the offence, under Section 411 I.P.C., vide judgement and order dated 13.02.2008. Against the aforesaid judgement, Criminal Appeal was filed by the revisionist. The appellate Court/Additional Sessions Judge/Special Judge, (S.C./S.T. Act), Balrampur, after examining the evidences, rejected the appeal, vide impugned order dated 15.01.2013.
6. As the trial Court as well as appellate Court examined the oral evidence, documentary evidences duly proved by prosecution witnesses and statement under Section 313 Cr.P.C., this Court is not inclined to interfere with the concurrent findings of fact recorded by two Courts.
7. The impugned judgment and order passed by the appellate court, insofar as it relates to the order of conviction is hereby upheld.
8. It is evident that the 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 'Act, 1958').
9. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the revisionists. 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.
10. 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,1958.
11. The revisionists have statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 and the Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act,1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the Trial Court should have recorded reasons for the same.
12. In view of the above, the impugned order suffers from serious illegality being violative of provisions of Section 361 Cr.P.C. and therefore, it cannot be sustained.
13. Learned A.G.A. appearing for the State does not dispute the fact that revisionist is 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 revisionists and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.
14. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the revisionist.
15. Thus, the revision is partly allowed. The judgment and order dated 15.01.2013 passed by Additional Sessions Judge/Special Judge, (S.C./S.T. Act), Balrampur in Criminal Appeal No.05 of 2008, whereby he confirmed the judgement and order dated 13.02.2008 passed by Judicial Magistrate-IInd, Balrampur in Criminal Case No.1090/06 of 2000, under Section 411 I.P.C, so far as it relates with the conviction of revisionist is maintained, but the sentence is modified by giving the benefit of Section 4 of the Probation of Offenders Act, 1958. He is directed to file two sureties bonds of Rs.20,000/- and personal bond of same amount to the effect that he shall maintain peace and good behavior and shall not commit any offence during the period of one year. The bonds aforesaid be filed by him within two months from the date of judgment before District Probation Officer, Balrampur.
16. Copy of this judgment along with lower court record be sent to the District Judge, Balrampur with immediate effect for compliance.
Order Date :- 2.11.2022
Amit/-
