Allahabad High Court
Ram Das Alias Ramji Lal vs State Of U.P. on 9 January, 2023
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 87
Case :- CRIMINAL APPEAL No. - 370 of 1984
Appellant :- Ram Das Alias Ramji Lal
Respondent :- State of U.P.
Counsel for Appellant :- S.K. Yadav,Kamal Kishor Mishra Amicus Curiae
Counsel for Respondent :- A.G.A.
Hon'ble Dinesh Kumar Singh,J.
1. The present appeal has been preferred against judgment order dated 31.1.1984 passed by the IIIrd Additional and Sessions Judge, Etah, by means of which the accused-appellant was convicted under Section 376/511 IPC and sentenced him to undergo one and a half year rigorous imprisonment.
2. Learned counsel for the accused-appellant submits that the accused-appellant 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-appellant 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 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-appellant 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-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.
8. Learned AGA appearing for the State does not dispute the fact that accused-appellant 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-appellant 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 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 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-appellant shall file the bond within a period of one month from today.
10. In case of breach of any of the said condition, the accused-appellant 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 :- 9.1.2023
Rao/-
