Ramesh Chand Sharma vs State Of U.P.
2023 Latest Caselaw 5188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 87
 

 
Case :- CRIMINAL APPEAL No. - 524 of 1995
 

 
Appellant :- Ramesh Chand Sharma
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shamsher Singh,Ritesh Kumar Singh
 
Counsel for Respondent :- .../Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present appeal under Section 374(2) Cr.P.C. has been preferred against judgment order dated 3.4.1995 passed by the VIth Additional District and Sessions Judge, Bijnor passed in Special Trial No.54 of 1993, by means of which the appellant has been convicted and sentenced for two years for the offence under Section 7 of Prevention of Corruption Act with fine of Rs.1,000/- and in default of payment of fine, further to undergo six months rigorous imprisonment.

2. By way of the State amendment in Section 484 Cr.P.C., which is repeal and saving clause, clause (e) after (d) in sub-section (2) of Section 484 Cr.P.C. has been added, which reads as under:-

?(e) the provisions of the United Provinces Borstal Act, 1938 (U.P. Act VIII of 1938) the United Provinces First Offenders Probation Act, 1938 (U.P. Act VI of 1938), and the Uttar Pradesh Children Act, 1951 (U.P. Act 1 of 1951) shall continue in force in the State of Uttar Pradesh until altered or repealed or amended by the competent Legislature or other competent authority, and accordingly, the provisions of section 360 of this case shall not apply to that State, and the provisions of section 361 shall apply with the substitution of references to the Central Act named therein by references to the corresponding Acts in force in the State.?

3. From perusal of the aforesaid provision, it is evident that in the State of Uttar Pradesh, the provisions of United Provinces First Offenders Probation Act, 1938 are continued to be in operation inasmuch as the same has not been repealed.

4. The said Section also provides that Section 360 Cr.P.C. does not apply in the State of Uttar Pradesh. Though the plea was taken that the accused-appellant was the first offender, but the learned trial court has not dealt with the said submission and has not recorded any reason for not giving the benefit of the Probation of First Offenders At, 1938 or the Probation of First Offenders Act, 1958.

5. Section 361 Cr.P.C. provides that for not giving the benefit of the probation of First Offenders At, the trial court is to record specific reason for not giving the benefit of the provisions of the Probation of the First Offenders Act.

6. Learned counsel for the accused-appellant submits that he does not want to press this appeal on merit, but the case of the appellant may be considered for giving the benefit of the Probation of First Offenders Act. He further submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellant has not been convicted previously for any offence, the trial court ought to have invoked the provisions of The Probation of First Offenders Act, 1958.

7. 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 The Probation of First Offenders Act, 1958.

8. 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.

9. The accused-appellant 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.

10. Section 4 of the United Provisions of First Offender Act, 1938, which is a beneficial legislation provides as under:-

?4. Power of court to release certain offenders on probation of good conduct. - (1) When any person is convicted of an offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct the court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and be of good behaviour :

Provided that the court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and regular occupation in the place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions :

Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the[State Government], which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.

(2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order :

Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years.

(3) A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(4) A court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.?

11. The offence was allegedly committed in the year 1984. The accused-appellant is 78 years of age. The learned trial court has not considered the provisions of the Probation of First Offenders Act though the said plea was taken.

12. Considering the fact that the offence took place 40 years before and the accused-appellant is in his advanced stage of his life, this Court finds that he is entitled to be given the benefit of the provisions of the Probation of the First Offenders Act.

13. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellant. However, he is granted the benefit of Section 4 of the Act. The accused-appellant is released on probation. Accused-appellant shall file a personal bond to the tune of Rs.25,000/- and he shall keep peace in the society and shall not commit any such offence in future. This bond shall be for six months. The accused-appellant shall file the bond within a period of one month from today.

14. In case of breach of any of the said condition, the accused-appellant will subject himself to undergo the sentence.

15. 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 :- 16.2.2023

Rao/-