Allahabad High Court
Onkar Dutt And 5 Ors. vs State Of U.P.And Another on 5 January, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL APPEAL No. - 822 of 2003
Appellant :- Onkar Dutt And 5 Ors.
Respondent :- State Of U.P.And Another
Counsel for Appellant :- S.M.Munis Jafari
Counsel for Respondent :- Govt.Advocate
Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the appellants, learned A.G.A. and perused the record.
2. Present criminal appeal has been filed under Section 374(2) Cr.P.C against the judgment and order dated 7.5.2003 passed by Additional Sessions Judge, Faizabad in S.T. No. 560 of 1994 arising out of Case Crime No. 194-A of 1990 Police Station Haiderganj, District Faizabad convicting the appellants and sentencing each of them to six months R.I. under Section 147 I.P.C. six months R.I. under Section 323/149 I.P.C. and three years each R.I. and a fine of Rs.2000/- under Section 325/149 I.P.C. in default payment of fine six months additional R.I. all the sentence to run concurrently amongst others.
3. Learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission only with respect to the order of sentence.
4. As per report of the learned trial court appellant no.1 Onkar Dutt and appellant no. 4 Smt. Rampati have died, thus, appeal in respect of appellant no.1 and appellant no.4 stands abated.
5. So far as appellant nos.2, 3, 5 and 6 are concerned, learned counsel for the appellants submits that appellant no.2 is aged about 74 years, appellant no.3 is aged about 68 years and is also injured, appellant no.5 is aged about 88 years and appellant no.6 is aged about 50 years old.
6. Learned counsel for the appellant submits that the accused-appellants has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act i.e. Probation of Offenders Act, 1958. It has been specifically averred in para 8 of the appeal that that the appellants are not previously convict and have not involved in any other criminal activity. He submits that the Trial Court neither invoked the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C. while sentencing the accused-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 1958 Act, as provided in Section 361 Cr.PC.
7. Learned counsel for the accused-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.
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-appellants 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 Section 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. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellants are the first time offender and were not previously convicted in any other case. He also submits that in view of the express provisions of Section 360 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellants and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of 1958 Act can be granted in this case.
11. In view of the above facts and circumstances mentioned above, including the fact that the appellants do not have any criminal antecedent and are the first offender, as also the scope of section 4 of the Act, this appeal is dismissed by upholding the conviction and imposition of fine of the accused-appellants. However, the appellants are granted the benefit of Section 4 of 1958 Act.
12. The accused-appellants no.2,3,5 and 6 are released on probation. The said accused-appellants shall file personal bond to the tune of Rs.20,000/-each in the like amount and they shall keep peace in the society and shall not commit any such offence in future. The bond shall be for one year. In case of breach of any such condition, the accused-appellants will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bond within a period of one month from today.
13. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 5.1.2023
Madhu
