Sanjay Kuamr And Ors. vs State Of U.P.
2025 Latest Caselaw 7335 ALL

Allahabad High Court

Sanjay Kuamr And Ors. vs State Of U.P. on 28 May, 2025

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:32559
 
Court No. - 11
 

 
Case :- CRIMINAL APPEAL No. - 639 of 2010
 

 
Appellant :- Sanjay Kuamr And Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Akhilesh Chauhan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajnish Kumar,J.
 

1. This Criminal Appeal under Section 374 (2) of Criminal Procedure Code (here-in-after referred as Cr.P.C.) has been filed against the judgement and order dated 19.02.2010 passed by the Additional Sessions Judge, Court Room No.2, District-Pratapgarh in S.T. No.47 of 2003 (State vs. Sanjay Kumar and others) arising out of Case Crime No.12/01, under Sections 147, 304, 149, 323/149, 352/149, 504, 506 IPC, Police Station Fatanpur, District-Pratapgarh, by which appellants have been convicted under Section 147 of IPC awarding 3 months imprisonment, under Section 304 Part-II/149 of IPC awarding 3 years rigorous imprisonment and fine of Rupees one thousand each and in default of payment of amount of fine, 3 months each simple imprisonment and under Section 323/149 of IPC awarding one month's imprisonment and under Section 352/149 of IPC, awarding 15 days imprisonment and under Section 504 of IPC awarding 6 months imprisonment and under Section 506 of IPC awarding 6 months imprisonment to all the appellants. It has further been provided that all the punishments shall run concurrently.

2. Learned counsel for the accused-appellants submits that he is not challenging the impugned judgement and order of conviction on merit and he is confining his prayer in the appeal in respect of order of sentence only. He further submits that the appellants are not previously convicted and after the incident in the present appeal also the appellants have not been convicted or prosecuted in any case, therefore they are entitled for the benefit of the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as Act of 1958), but the same has been denied by the learned trial court on insufficient grounds and without assigning any special reason. He further submits that the incident in question in the present case was of sudden provocation on account of some dispute during play of cricket amongst the young persons, but without considering it the benefit of the Act of 1958 has been denied, therefore, the same is liable to be set aside and the appellants are entitled for the benefit of the first offenders.

3. Learned AGA appearing for the State, on the basis of records, does not dispute the fact that accused-appellants are the first time offenders and were not previously convicted in any other case and they have not been convicted or prosecuted subsequent thereto also. He also does not dispute that in view of the express provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, evidence adduced, the age of the accused-appellants and particularly, the time period which has left, the benefit of first offender can be granted in this case.

4. This appeal has been filed on behalf of appellants Sanjay Kumar and Dipak Kumar both sons of Kripa Sankar Tiwari, Dinesh Kumar and Rajesh Kumar both sons of Devi Prasad Tiwari and Anil Kumar son of Sachhidanand Tiwari. The appellant no.4/Rajesh Kumar son of Devi Prasad Tiwari died during pendency of this appeal on 03.12.2014, therefore, the appeal in relation to appellant no.4/Rajesh Kumar has been abated by means of order dated 08.04.2022.

5. The learned trial court has not disputed that the appellants were not earlier convicted. However without considering it the punishment has been awarded on the ground that keeping into mind the age of the accuseds and circumstances of the incident and taking a lenient view. The reason for denial of grant of benefit of first offender has not been disclosed, whereas it is a right of an accused to claim the benefit of the first offender and even if it is not claimed, it is to be considered by the trial court and in case the trial court is of the view that the benefit cannot be granted then special reasons are required to be recorded.

6. Section 361 of the Code of Criminal Procedure specifically provides that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so.The Act does not create any distinction between the character of the offender and the provisions of Section 4 of the Probation of Offenders act. The provision can be applicable to any case where the convicted is found guilty for having committed an offence not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court as in the case of Smt. Devki Versus State of Harayana reported in 1979, (3) SCC 760 where the Hon'ble Supreme Court has held that benefit of Section 4 of 1958 Act could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni the Hon'ble Supreme Court declined to extend the benefit of the 1958 Act to an accused found guilty of gold smuggling.

7. The Hon'ble Supreme Court, in the case of Dalbir Singh versus State of Haryana (2000) 5 SCC 82, has held that the Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Further, it has been held that Section 4 casts a duty on the court to take into account the circumstances of the case including the nature of the offence. The relevant paragraphs 8, 9 and 10 of the said judgment are reproduced hereinafter:

"8.Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence".

9.Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Block's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors., AIR (1974) SC 2233 a three Judge Bench of this Court has considered the word "expedient''. Learned Judges have observed in paragraph 21 thus :

10.Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conducive to special advantage rather than to what is universally right' (see Webster's New International Dictionary)."

It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the P.O. Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.........". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. Courts must bear in mind that when any plea is made based on Section 4 of the P.O. Act for application to a convicted person under Section 304-A of IPC, that road accidents have proliferated to alarming extent and the toll is galloping up day-by-day in India, and that no solution is in sight not suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country" the saturation of accidents toll was not even half of what it is today. So V.R. Krishna Iyer, J., has suggested in the said decision thus :

"Rashness and negligence are relative concepts, not absolute ab-stractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces."

8. Considering the above submissions and the relevant law on the point, I am of the view that the accused 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.

9. According to the facts of the present case, the learned Trial Court though recorded the claim of the appellants for benefit of the first offender but awarded the punishment and does not record any reason for not granting the benefit of the first offender, which is in contravention of Section 361 of the Code of Criminal Procedure, 1973 wherein the duty has been cast upon the court that if it does not deal with the case under the provisions of Section 360 or under the provisions of the Probation of Offenders Act, 1958, it shall record in its judgment the special reasons for not having done so.

10. In view of above, this Court is of the view that learned trial court has committed an error in not only not considering but denying the benefit of the Act of 1958 and the provisions of Section 360 CrPC/361 CrPC also without recording specific reasons for declining the same.

11. In view of above and considering the overall facts and circumstances of the case this court is of the view that the appeal is liable to be dismissed upholding conviction of the accused-appellants as they are not challenging it on merit as stated above but granting benefit of first offender.

12. In view of the aforesaid facts and circumstances, this appeal is, accordingly, partly allowed by upholding the conviction of the accused-appellants and punishment awarded to them by the impugned judgment and order. However, the appellants are granted the benefit of first offender and they are released on probation.

13. The accused-appellants No.1, 2, 3 and 5 shall file personal bonds and two sureties in the like amount to the tune of Rs. 25,000/- each within a period of six weeks from today before the District Probation Officer, Pratapgarh and undertaking that they shall keep peace in the society and shall not commit any offence in future. These bonds and sureties shall be for a period of two years.

14. In case of breach of any of the above condition and undertaking, the accused-appellants shall be taken into custody and shall undergo the sentences awarded by the Trial Court as per law.

15. The impugned order stands modified to the aforesaid extent.

16. Let a copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.

.

...............................................(Rajnish Kumar,J.)

Order Date :- 28.5.2025

Banswar