Anand Singh vs State Of U.P.
2023 Latest Caselaw 8473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 120 of 2014
 

 
Revisionist :- Anand Singh
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Devendra Kumar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for revisionist, learned AGA and perused the record.

2. This Criminal Revision has been preferred by the accused-revisionist, Anand Singh against the judgment and order dated 25.2.2014 passed by the Additional Sessions Judge, Unnao, in Criminal Appeal No. 102 of 2013 (Anand Singh Vs. State of U.P.), affirming the order dated 13.8.2013 passed by Additional Chief Judicial Magistrate, Unnao in case crime no. 1092 of 2008 (Case No. 3888 of 2008) convicting the revisionist under Section 452 I.P.C. for two years simple imprisonment and fine of Rs.1000/- and in default of payment of fine one month additional simple imprisonment, under Section 324 I.P.C. for two years simple imprisonment with fine of Rs.1000/- and in default of payment of fine further undergo one month simple month imprisonment, under Section 354 I.P.C. for one year simple imprisonment with fine of Rs.500/- and in default of payment of fine further undergo 15 days simple imprisonment and Section 323 I.P.C. for six months simple imprisonment with fine of Rs.200/- and in default of payment of fine further undergo 7 days simple imprisonment.

3. In short the prosecution case is that the complainant Ritu Raj singh move the written report on 6.9.2008 alleging therein that his daughter victim aged about 16 years was present alone in the house. On account of old enmity, Anand Singh suddenly entered in his house on 5.9.2008 at about 11.00 a.m. and started molesting her daughter while abusing her due to old enmity when her daughter protested then revisionist attacked daughter with intention to kill with knife. On daughter shout complainant and Awadesh Kumar came inside the house and revisionist ran away from the spot, who was chased by them but could not be caught.

4. On the basis of report, an N.C.R. No. 343/2003 u/s 452, 323, 324, 504 and 354 IPC was registered on 6.9.2008 at 4.00 p.m. at police station Barasagwar District Unnao.

5. The injured Preeti Singh was medically examined in Primary Health Centre Bighapur.

6. Investigating Officer after recording the statement of witnesses, preparing the site plan and completing the necessary formalities, the chargesheet filed against the accused persons u/s 323, 324, 354, 452, 504 IPC.

7. Charges against the revisionist were framed on 7.11.2009 u/s 452, 354, 504, 323, 324 IPC. The charges were read over to the revisionist but he denied the charges leveled against him and claimed to be tried.

8. The prosecution in support of this case examined Ritu Raj Singh complainant of the case as PW-1, Preeti Singh the victim of the case as PW-2, Awadesh Singh as PW-3, Dr. R.K. Yadav who conducted the medical examination as PW-4, and Hirala as PW-5. Apart from oral evidance, the documentary evidence like injury report, site plan, chargesheet and copy of the carbon copy of G.D. entry was also produced before the Court.

9. After examining all the prosecution witnesses, the statement of the accused u/s 313 CrPC was recorded wherein accused/revisionist stated that he has been falsely been implicated and witnesses are deposing against him due to enmity he further added that complainant of the case Ritu Raj singh along with Indira Bahadur has made an attempt to murder of his brother for which a case was pending before the Court. For this reason Ritu Raj singh was having enmity and has falsely implicated.

10. The trial court after appreciating the evidence on record and other documentary evidence convicted and sentenced the revisionist as stated above.

11. Aggrieved by the dismissal of the appeal by the Additional Sessions Judge by the order dated 25.2.2014, the accused has preferred the present revision stating therein that both the courts below have committed an error in not considering the fact that there was strong motive to falsely implicated him in the present case. The learned court also committed an error that the accused-revisionist has never been convicted or sentenced in any criminal case and has no criminal antecedents and as such he was entitled to be released on probation being as a first offender. It has also been argued that no finding has been recorded, so, the benefit of probation may be given.

12. On the other hand, learned AGA has submitted that both the courts below had passed the order on conviction after appreciating the evidance on record and giving sound reasoning and as such there is no irregularity or illegality which warrant interference by this Court in exercise of power u/s 397/401 CrPC.

13. As learned counsel for revisionist has claimed benefit of probation, it would be appropriate to reproduced Section 360 CrPC which deals with the release on probation of good conduct or after admonition.

14. It would be appropriate to quote Section 360 Cr.P.C. reads as follows:-

"360. Order to release on probation of good conduct or after admonition :-

(1) When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment 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 or antecedents 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, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or 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.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders."

Section 361 Cr.P.C. reads as under:-

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.

Section 3, 4 and 5 of the Probation of First Offenders Act reads as under:-

Section 3- Power of court to release certain offenders after admonition.

When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Section 4 Power of court to release certain offenders on probation of good conduct.

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

Section 5-Power of court to require released offenders to pay compensation and costs.

(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay-

(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.

15. It is rightly contended by the learned counsel for the appellant that the effect, relevance and applicability of Section 360 Cr.P.C. have not been considered by the trial court and appellants deserve probation under Section 325 IPC also.

16. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?

17. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:

"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."

18. In the present revision fine of Rs. 2700/- has been imposed by the trial court on the revisionist. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry as well as considering the submission of learned counsel for appellants as aforesaid, this Court is of the view that benefit of Section 4 of the Probation of Offenders Act, 1958 should be provided to the appellants.

19. Thus, the revision is partly allowed. The conviction as directed by trial court and appellate court under Section 452/324/323/354 IPC is hereby confirmed and the revisionist is directed to be released on probation under Section 4 of the U.P. First Offenders' Probation Act with stipulated condition that he shall keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs. 40,000/- each before the court concerned.

20. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C., I am of the view that compensation should be awarded to the victim's family.

21. Therefore, fine of Rs. 2700/- is enhanced to Rs. 12,700/-, which shall be deposited by the revisionist before the trial court. Thus, Rs. 10,000/- out of Rs.12,700/- shall be paid to the victim and remaining Rs. 2700/- shall be deposited in the State Exchequer. If the revisionist fail to deposit the aforesaid amount of fine within 3 weeks, then he shall undergo to the sentence awarded by learned appellate court. Three weeks' time is granted to revisionist to deposit the fine as mentioned by this Court from the date of production of a certified copy of this order. The revisionist is on bail. He need not surrender.

22. Thus, the revision is dismissed on the point of conviction and partly allowed on the point of sentence. Benefit of probation be given to the revisionist.

23. Office is directed to communicate this order to the trial court concerned. The trial court record be sent back.

Order Date :-23.3.2023

Arpan