Allahabad High Court
Salikram And 2 Others. vs The State Of U.P. on 4 October, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:64250
Court No. - 13
Case :- CRIMINAL APPEAL No. - 668 of 1999
Appellant :- Salikram And 2 Others.
Respondent :- The State Of U.P.
Counsel for Appellant :- Balram Yadav,Rajendra Pratap Singh,Saryu Prasad Tiwari
Counsel for Respondent :- Government Advocate,Bajrang Bahadur Singh
Hon'ble Karunesh Singh Pawar,J.
1. The present appeal with regard to appellant no. 2 Ram Tirath has already been dismissed as abated. With regard to appellant nos. 1 and 3 namely Salikram and Ram Kripal respectively Advocate Shri Bajrang Bahadur Singh, learned counsel for respondent nos. 1 and 3 is present.
2. Heard learned counsel for the appellant nos. 1 and 3 as well as learned A.G.A. for the respondent State.
3. The present appeal has been preferred against the judgment and order dated 18.12.1999 passed by the 1st Additional Sessions Judge, Faizabad in Session Trial No. 700/1994, Police Station Kotwali Tarun, District Faizabad.
4. The learned Trial Court had convicted and sentenced appellant No. 1, under Sections 363 I.P.C. for four years of simple imprisonment with a fine of Rs. 2000/- and appellant no. 3, under Section 363 I.P.C. for four years with a fine of Rs. 2,000/- and in default of fine six months additional imprisonment. It was directed that all the sentences would run concurrently.
5. Learned counsel for the accused-appellants submits that accused-appellants have not been convicted previously for any offence and they are the first time offender. Learned counsel, at the outset, submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.
6. In view of the aforesaid submission of learned counsel for the accused-appellants, the appeal is dismissed so far as it relates to the impugned judgment and order of conviction passed by the learned Trial Court. The impugned judgment and order of conviction passed by the learned Trial Court is hereby, upheld.
7. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances including the fact that the accused-appellants have 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').
8. 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-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 Act, 1958.
9. 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.
10. 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.
11. The accused-appellants have 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.
12. Learned A.G.A 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 360 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.
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-appellants. However, they are granted the benefit of Section 4 of the Act. The accused-appellants (appellant no. 1 and appellant no. 3) are released on probation. The appellant no. 1 and appellant no. 3 shall file personal bonds to the tune of Rs.20,000/- and they shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year. In case of breach of any such condition, the appellant no. 1 and appellant no. 3 will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bonds within a period of one month from today.
14. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 4.10.2023
R.C.
