Rajeshwari Prasad Pandey And Ors. vs State Of U.P.
2023 Latest Caselaw 16087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:34993
 
Reserved on 01.05.2023
 
Delivered on 22.05.2023
 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 364 of 2013
 
Revisionist :- Rajeshwari Prasad Pandey And Ors.
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Arjun Singh
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Arjun Singh, learned counsel for the revisionists, Sri Sushil

Kumar Pandey, learned A.G.A. for the State and perused the material

placed on record.

2. Instant revision has been filed with prayer to summon the record of the

case, set aside the impugned order dated 29.07.2013, passed by Addl.

Session Judge, Court No. 9, Gonda in Criminal Appeal No. 15/13,

Rajeshwari Prasad Pandey and others Vs State of U.P. and impugned

judgment dated 05.02.2013, in Criminal Case No. 7331 of 2007, Case

N.C.R. No. 125/2007, U/s- 323, 504, 506 IPC Police Station Kotwali

Nagar, District Gonda by means of which the revisionists have been

convicted by the learned Appellate Court.

3. As per the prosecution version, on 23.04.2007, at about 10:00 A.M., all

the accused persons-revisionists were blocking the path of complainant

by placing the thornes of Acacia( Babul Ka Kanta) and when the

complainant objected, the accused persons-revisionists hurled filthy

abuses and extended life threat to the complainant and thereafter, they

started beating the complainant with canes and punches and as soon as

his sons Ravinder and Sunil came to his rescue, the revisionsits-accused

has also beaten them and abused them. On hue and cry, the villagers

namely Jagdish Pandey and other persons arrived at the place of

occurrence, thereafter, the accused persons ran away.

4. After the aforesaid, incident, the N.C.R. No. 125/2007, was lodged

under section 323, 504, 506 IPC on 23.04.2017 and the injured persons

Radha Krishna Pandey, Ravindra Kumar Pandey and Sunil Kumar

Pandey went to the hospital, where the, medico-legal examination was

done at district hospital, Gonda on the same day. Thereafter, anapplication under section 155(2) of Cr.PC. was filed by the informant

before the Judicial Magistrate, wherein the order for investigation was

passed by the Judicial Magistrate and police filed the chargesheet against

all accused persons-revisionists.

5. After the commencement of the trial, the witnesses namely Radha

Krishna Pandey P.W.-1, Sunil Kumar Pandey, P.W.-2, Ravindra Kumar

Pandey, P.W.-3, Triyogi Narayan Pandey, P.W.-4, Dr. A.K. Mishra, P.W.-

5, constable Ram Kumar Shukla, P.W-6, Ram Braks Singh, P.W.-7, were

examined before the court and site plan, chargesheet, general diary entry-

15 of Police Station- Kotwali Nagar were also relied upon by the

prosecution to prove its case.

6. The accused were also examined under section 313 of Cr.P.C., wherein

all the accused-revisionists denied the charges against them and

submitted thereof, that the charges are false and the injuries are fabricated

and added that they are falsely been implicated due to previous

animosity.

7. Learned counsel appearing for the revisionists submits that the present

revisionists-accused persons are innocent and have falsely been

implicated in the instant matter, as the dispute was between the

complainant and his son with the supporters of 'Hathi Wali Party' and the

injuries if any, were sustained due to scuffle in between them and the

present revisionists-accused persons have been implicated due to

previous enmity. He next submits that all the witnesses were examined

by the prosecution and are the interested witnesses as P.W.-1, father of

P.W.-2, and P.W.-3, whereas, the P.W.-1 is the Mausi of P.W.-4. Further,

submissions is that there is contradiction, in the statement of the

witnesses and the medical evidences and that do not corroborate the

prosecution story, coupled with the fact that the place of the incident is

not established vide the site-plan prepared during the investigation. He

submits that though, the prosecution has been failed to prove its case

beyond the reasonable doubt but the learned trial court, without properly

appreciating the evidences has passed the judgment and order whereby,

the present revisionists-accused persons have been punished.

8. Concluding his argument, he submits that the revisionists do not want

to press the revision on merits. He submits that the incident is said to

have taken place in the year 2007, i.e. way back more than fifteen years

and there is further criminal proceedings reported against the revisionist

and they are living decentfully in the society, therefore, they may be

extended the benefit of The U.P. First Offenders' Probation Act, as

sending the revisionist to jail would not serve any fruitful purpose. He

submits that the revisionists are ready to pay the compensation to the

complainant, if this court deemed fit to so direct.9. Per contra, learned A.G.A. appearing for State has vehemently

opposed the revision on merits and submits that there is not perversity or

irregularity in the judgment and order passed by the trial court and the

trial court has thoroughly discussed the evidences on merits and

therefore, the revisionists have rightly been convicted, therefore, no

interference is warranted.

10. Considering the submissions of learned counsel for the parties and

after perusal of material placed on record, it emerges that the trial court

as well as the appellate court found that the revisionists have committed

the offence and thus, they are not entitled for any relief and the trial court

has thoroughly discussed and appreciated the evidences in the judgment

and order and therefore, the same has been passed on merits.

11. When this court examines the aforesaid provisions of law, this Court

is also not unmindful that the matter pertains to the year 2007 and about

fifteen years have been passed from the date of the incident. Further, the

revisionists-accused persons are said to be on bail and they are living

peaceful and decent life in the society and have settled them and now

sending the revisionists back to jail at this stage would not be a justifiable

decision.

12. So far as the submissions of learned counsel for the parties, the

revisionists-accused persons with regard to the extending the benefit of

section 4 of U.P. First Offenders' Probation act is concerned, it is

necessary to discussed the law in this regard.

13. In the context above, Sections 360 and 361 of the Code of Criminal

Procedure are relevant for the purpose of probation to first offenders.

Both these sections are reproduced as under :-

"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 (notexceeding 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 sub-section 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

recognizance, 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 the 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 such 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 1958), or 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.

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, 135 but has not done so,

it shall record in its judgment the special reasons for not having done

so."

14. There is one central Legislation on the subject in the name of

''Probation of Offenders Act Act 1958', relevant Section 3 and 4 of are

extracted hereunder:-

"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 onprobation 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.

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."

15. There is one more legislation on the subject namely ''Uttar Pradesh

First Offenders' Probation Act, 1938'. Section 3 and 4 of this Act are

reproduced herein below:-

"3. Power of court to release certain offenders after admonition. - In any

case in which a person is found guilty of the offences of theft, dishonesty,

misappropriation or cheating, punishable under the Indian Penal Code,

or of any offence punishable with not more than two years imprisonment

and no previous conviction is proved against him, the court by which he

is found guilty 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.

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 offenderpartly allowed 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.

16. A perusal of these legislations will leave a student of Law in a

confused state of mind. All these legislations are dealing with the same

subject and on first sight looks encroaching each other. Looking closely,

one may get that Section 360 of the Code relates only to persons 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, may be released on probation, taking into

consideration the facts and circumstances of the case, character of the

offender and the gravity of the offence committed by him. Section 4 of the

Probation of Offenders Act is having a much wider scope as it applies to

any person found guilty of having committed an offence not punishable

with death or imprisonment for life. If I look further deep into section

360 of Cr.P.C. we will find that in sub section (10) it has been provided

that nothing in this Section shall affect the provisions of the Probation of

Offenders Act."

17. A Division Bench of the Allahabad High Court in State of Uttar

Pradesh v. Misri Lal and others reported in 1982 CRI. L. J. 1420 held

as under :-

"26- ...................The application of Section 360 in Utter Pradesh was

taken away by an Ordinance of the year 1975. The Ordinance wasrepealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment)

Act, No. 16 of 1976. This Act received the assent of the President on 30-

4-1975 and published in the Utter Pradesh Extraordinary Gazette dated

1-5-1976. Section 12 of this Act repealed the Ordinance and laid down

that notwithstanding such repeal, anything done or any action taken

under the Ordinance shall be deemed to have been done or taken under

the provisions of this Act as if this Act had come into force on November,

28, 1975. The learned trial judge decided the case on 2-2-1976. Section

10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and

inserted the following clause (e) after clause (d) :-

"(e) .... the United Provinces First Offenders' Probation Act

1938......shall continue in force in the State of Uttar Pradesh .... and

accordingly the provisions of Section 360 of this Code shall not apply to

that State and the provisions of Section 361 shall apply with the

substitution or reference to the Central Acts named therein by references

to the corresponding Act in force in that State".

Section 361 of the Cr.P.C. lays down that where in any case the Court

could have dealt with an accused person under S.360 or under the

provisions of the Probation of Offenders Act, 1958, or a youthful offender

under the Children Act, 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 judgement the special reasons for not

having done so.

18. It follows from this provision read with clause (e) of S.484 mentioned

above, the Court is required to record special reasons for not extending

the benefit of the provisions of the Utter Pradesh First Offenders'

Probation Act, 1938."

19. Thus, provisions of U. P. Probation Of First Offenders' Act shall be

followed, in the geographical area where that has been made applicable

and not Section 360 of the Cr.P.C. In this way enforcement of Probation

Act in some particular area, thus excludes the applicability of the

provisions of Section 360 of the Code in that particular area,however it

will be the bounden duty of the Court to consider as to why not to

proceed to grant the benefit of Probation of Offenders Act, as provided

under Section 361 of the Cr.P.C.

20. Coming to the point of desirability of extending the benefit of

Probation Act to the Accused/Revisionist in Sitaram Paswan and Anr v.

State of Bihar, reported in AIR 2005 SC 3534 Supreme Court held as

under:-

"For exercising the power which is discretionary, the Court has to

consider circumstances of the case, the nature of the offence and thecharacter of the offender. While considering the nature of the offence, the

Court must take a realistic view of the gravity of the offence, the impact

which the offence had on the victim. Thebenefit available to the accused

under Section 4 of the Probation of Offenders Act is subject to the

limitation embodied in the provisions and the word "may" clearly

indicates that the discretion vests with the Court whether to release the

offender in exercise of the powers under Section 3 or 4 of the Probation

of Offenders Act, having regard to the nature of the offence and the

character of the offender and overall circumstances of the case. The

powers under Section 4 of the Probation of Offenders Act vest with the

Court when any person is found guilty of the offence committed, not

punishable with death or imprisonment for life. This power can be

exercised by the Courts while finding the person guilty and if the Court

thinks that having regard to the circumstances of the case, including the

nature of the offence and the character of the offender, benefit should be

extended to the accused, the power can be exercised by the Court even at

the appellate or revisional stage and also by this Court while hearing

appeal under Article 136 of the Constitution of India."

21. In AIR 2017 SC page 660, Mohd. Hashim v. State of U.P and Ors.

The Supreme Court opined as under:-

"20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao,

J., speaking for the majority, opined thus:-

"The Act is a milestone in the progress of the modern liberal trend of

reform in the field of penology. It is the result of the recognition of the

doctrine that the object of criminal law is more to reform the individual

offender than to punish him. Broadly stated, the Act distinguishes

offenders below 21 years of age and those above that age, and offenders

who are guilty of having committed an offence punishable with death or

imprisonment for life and those who are guilty of a lesser offence. While

in the case of offenders who are above the age of 21 years absolute

discretion is given to the court to release them after admonition or on

probation of good conduct, subject to the conditions laid down in the

appropriate provisions of the Act, in the case of offenders below the age

of 21 years an injunction is issued to the court not to sentence them to

imprisonment unless it is satisfied that having regard to the

circumstances of the case; including the nature of the offence and the

character of the offenders, it is not desirable to deal with them under

Sections 3 and 4 of the Act."

22. In the light of the aforesaid provisions of law, the Court is also

mindful that the matter pertains to the year 2007 and about 15 years have

been passed from the date of incident whereas the dispute regarding lease

of the year 1985 and years after years have lapsed and therefore sendingthe revisionists back to the jail at this stage who are peacefully living in

the society would not be a justifiable decision.

23. Therefore,on merits, so far as, conviction part is concerned, I do not

find any illegality, perversity or infirmity in the order passed by the Court

below but keeping in view the discussion made above the sentence

inflicted on the revisionists-accused persons requires modification.

24. Consequently, the instant revision is partly allowed with the

following conditions:-

25. The conviction of the accused-revisionists by the trial Court is hereby

upheld. The sentence of accused revisionists is modified to the tune that

they are provided the benefit of Section 4 of the U.P. Probation of

Offenders Act and they are released on probation on the condition that

they will observe good conduct and behavior and further shall also file

two sureties to the tune of Rs. 20,000/- each along with their personal

bonds before the trial Court and also an undertaking to the effect that

they shall maintain peace and good behavior for the rest period of their

lives. The revisionists shall also deposit Rs.30,000/- before the trial Court

within two months and the Court below will release the said amount in

favour of the State. In case of breach of any of the conditions mentioned

above, the revisionists shall be subjected to undergo the sentence as

directed by the trial Court. The bonds aforesaid will be filed by the

accused-revisionists within two months from today before the trial Court.

26. A certified copy of the order be also sent to the court concerned for

compliance.

27. Let the lower court record be transmitted to the trial Court.

Order Date :- 22.05.2023

Mayank