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Neutral Citation No. - 2024:AHC-LKO:72369
Court No. - 12
Case :- CRIMINAL APPEAL No. - 2478 of 2007
Appellant :- Suresh And 3 Ors.
Respondent :- State of U.P.
Counsel for Appellant :- Anurag Narain,Aniruddh Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Saurabh Lavania,J.
1. Case called out.
2. Heard Heard Shri Prashant Chaurasiya, Advocate holding brief of
Shri Anurag Narain, learned counsel for the appellants and learned AGA for
the State as well as perused the records.
3. Instant Criminal Appeal under Section 374 (2), Cr.P.C. has been
moved on behalf of the appellants against the judgment and order
24.08.2007 passed by Additional Session Judge, Fast Track Court No. 4,
Hardoi, in Session Trial No. 197 of 2006, arising out of Case Crime No. 17
of 2005, P.S. Pali, District Hardoi, convicting and sentencing the appellants
under Sections 323/34 each for six months simple imprisonment and a fine
of Rs. 100/- fine, under Section 324/34 IPC with one year simple
imprisonment and a fine of Rs. 250/- and under Sections 325/34 for two
years simple imprisonment and fine of Rs. 250/- each with default
stipulation.
4. Brief facts of the case are to the effect that on 11.02.2005 at about
10:40 a.m. morning complainant/informant Chandraprakash informed at
Station Pali that Suresh, Kamlesh, Mithilesh and Sunil alias Bhullu digged
out a drain in front of his gate and on being opposed, they assaulted him
with lathi and danda and when her sister-in-law Guddi W/o Ramakant came
to rescue him and she was also assaulted and also hurled abuses and
threatened them. On this information, NCR No. 19/2005, under Sections
323, 504, 506 IPC was lodged against Suresh, Kamlesh, Mithilesh and
Sunil alias Bhullu.
5. The Investigating Officer, in terms of order of concerned Magistrate
under Section 155(2) Cr.P.C., registered Case Crime No. 17 of 2005 and
thereafter, submitted the charge sheet against the accused/appellants, under
Sections 323, 324, 504, 506 IPC.
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6. After submission of charge sheet, Magistrate took cognizance and the
said case was committed to the Court of Session wherein it was registered
as S. T. No. 197 of 2006 and charges were framed under Sections 323, 324,
504, 506 IPC against the appellants, to which they denied and claimed trial.
7. In order to substantiate its case, prosecution examined as many as ten
witness in its support including informant (P.W.1) and Guddi (P.W.3).
8. That after closing of the evidence, statement of accused/appellants
under Section 313 Cr.P.C. was recorded by the trial court explaining the
entire evidence and circumstances, in which appellants denied prosecution
story and the entire prosecution story was said to be wrong and concocted.
9. Thereafter, the learned trial court after hearing learned counsel for
both the parties and appreciating the entire evidence oral as well as
documentary, found the accused/appellants guilty and convicted him as
above.
10. Feeling aggrieved and dissatisfied with the impugned judgment and
order of conviction, the appellants have preferred the present appeal.
11. Learned counsel for the appellants submits that the accused-
appellants have not been convicted previously for any offence and they are
the first time offender. The learned counsel at the outset submits that he is
not challenging the impugned judgment and order of conviction and is
confining his submission in the appeal only with respect to the order of
sentence.
12. 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 'Act, 1958').
13. The Trial Court did neither invoke the provisions of the Act, 1958 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.
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14. 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.
15. 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, 1958.
16. The accused-appellants have statutory right for claiming the benefit
of beneficial legislation i.e. the provisions of the Act, 1958 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, 1958 as mandated under Section 361
Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act,
1958 were not applied, then the learned Trial Court should have recorded
reasons for the same.
17. Learned counsel for the appellants submitted that the State of Uttar
Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders
Probation Act, 1938. He further submitted that the Probation of Offenders
Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as
held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State
of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants
submitted that it is upon the discretion of the Court to grant benefits in
either of the Acts.
18. Learned counsel for the appellants further submitted that he does not
want to press the appeal on merits. He has submitted that the incident took
place 23 years ago and there is no further criminal antecedent of the
appellants. The delay in trial deprives the right of the appellants of speedy
trial and they may be given benefit of first offender and appellants may be
extended the benefit of Probation of Offenders Act, 1958 (herein after
referred as the Act of 1958). He further submitted that appellants is first
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time offender and is not previously convicted in any case. He further
submitted that it is the Court which may consider the benefit of Section 4 of
the Act of 1958 to the accused-appellants.
19. Learned A.G.A. on the other hand opposed the appeal and has
submitted that there is no material irregularity or illegality committed by the
court below and keeping in view the evidence on record, accused-appellants
have been rightly convicted.
20. Learned AGA appearing for the State does not dispute the fact that
accused-appellants is the first time offender and was not previously
convicted in any other case. He also submits that in view of the expressed
provisions of Section 361 Cr.P.C., considering the facts and circumstances,
nature of the offence, the character of the accused-appellants and
particularly, the time period which has lapsed since the date of incident, the
benefit of Section 4 of the Act, 1958 can be granted in this case.
21. Learned A.G.A. further states that the benefit of Section 4 of the Act
of 1958 could be extended to the accused-appellants on certain stipulations
as specified in Section 4 of the Act of 1958.
22. After considering the arguments advanced by the parties and after
perusal of the material available on record, this court finds that except apart
the merits of the case, so far as the prayer of learned counsel for the
appellants for providing benefits of Section 4 of the Act of 1958 is
concerned, it is essential to discuss the legal position and law propounded in
this regard.
23. Sections 3 and 4 of the Probation of Offenders Act, 1958 are
extracted hereunder:
"3. Power of court to release certain offenders after
admonition.- "Where 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
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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.
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."
24. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR
1965 SC 444, while discussing the purpose and object of Probation of
Offenders Act, 1958, has observed in para no. 4, as follows:-
"4. 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 condition laid
down in the appropriate provision 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 Ss. 3 and 4 of the Act."
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25. Further, the Hon'ble Supreme Court in the case of Ved Prakash vs
State of Haryana, (1981) 1 SCC 447 : AIR 1981 SC 643 while discussing
on the duty of Bench and Bar regarding compliance of Section 360 Code of
Criminal Procedure read with Section 4 of Probation of Offenders Act, 1958
was pleased to observe as under:-
"The offence, for which conviction has been rendered, is one
which will be attracted by S. 360 or at any rate the Probation of
offenders Act, 1958. The materials before us are imperfect
because the Trial Court has been perfunctory in discharging its
sentencing functions. We must emphasise that sentencing an
accused person is a sensitive exercise of discretion and not a
routine or mechanical prescription acting on hunch. The Trial
Court should have collected materials necessary to help award a
just punishment in the circumstances. The social background and
the personal factors of the crime-doer are very relevant although
in practice Criminal Courts have hardly paid attention to the
social milieu or the personal circumstances of the offender. Even
if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing
Court to be activist enough to collect such facts as have a
bearing on punishment with a rehabilitating slant. The absence
of such materials in the present case has left us with little
assistance even from the counsel. Indeed members of the bar also
do not pay sufficient attention to these legislative provisions
which relate to dealing with an offender in such manner that he
becomes a non-offender. We emphasise this because the
legislation which relate to amelioration in punishment have been
regarded as 'Minor Acts' and, therefore, of little consequence.
This is a totally wrong approach and even if the Bar does not
help, the Bench must fulfil the humanising mission of sentencing
implicit in such enactments as the Probation of offenders Act."
26. That it is also noteworthy that this Court in the case of Subhash
Chand vs State of U.P; [2015 Law Suit (All) 1343, has emphatically laid
down the need to apply the law of probation and give benefit of the
beneficial legislation to accused persons in appropriate cases. This court
issued following directions to all trial courts and appellate courts:-
"It appears that the aforesaid beneficial legislation has been lost
sight of and even the Judges have practically forgotten this
provision of law. Thus, before parting with the case, this Court
feels that I will be failing in discharge of my duties, if a word of
caution is not written for the trial courts and the appellantse
courts. The Registrar General of this Court is directed to
circulate copy of this Judgment to all the District Judges of U.P.,
who shall in turn ensure circulation of the copy of this order
amongst all the judicial officers working under him and shall
ensure strict compliance of this Judgment. The District Judges in
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the State are also directed to call for reports every months from
all the courts, i.e. trial courts and appellate courts dealing with
such matters and to state as to in how many cases the benefit of
the aforesaid provisions have been granted to the accused. The
District Judges are also directed to monitor such cases
personally in each monthly meeting. The District Judges
concerned shall send monthly statement to the Registrar General
as to in how many cases the trial court/appellate court has
granted the benefit of the aforesaid beneficial legislation to the
accused. A copy of this order be placed before the Registrar
General for immediate compliance."
27. Further the Hon'ble Apex Court in State of Maharashtra vs
Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659 has extended
the benefit of Probation of Offenders Act, 1958 to the appellants, and
observed as under:-
"The learned counsel appearing for the accused submitted that
the accident is of the year 1990. The parties are educated and
neighbors. The learned counsel, therefore, prayed that benefit of
the Probation of Offenders Act, 1958 may be granted to the
accused. The prayer made on behalf of the accused seems to be
reasonable. The accident is more than ten years old. The dispute
was between the neighbors over a trivial issue of claiming of
drainage. The accident took place in a fit of anger. All the parties
educated and also distantly related. The accident is not such as
to direct the accused to undergo sentence of imprisonment. In
our opinion, it is a fit case in which the accused should be
released on probation by directing them to execute a bond of one
year for good behaviour."
28. That coming to the point of desirability of extending the benefit of
Probation Act to the accused/ appellants in Sitaram Paswan and Anr v.
State of Bihar, 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 the character 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
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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."
29. That it is also noteworthy that Hon'ble Apex Court in the case of
Mohd. Hashim v. State of U.P and Ors., AIR 2017 SC page 660, was
pleased to observe 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."
30. That Section 4 of the Act of 1958 is applicable where a person is
found guilty of committing an offence where punishment is neither life
sentence nor death. The Court may release such an accused on probation of
good conduct on his furnishing a bond as mentioned in the Section. The
Court in applying the provisions of this Section is also required to consider
the circumstances of the case, character of the offender and nature of the
offence before exercising its discretion.
31. A perusal of the aforesaid provisions of the Act of 1958 thus clearly
indicate that Section 4 of the Act of 1958 does not create any distinction
between the category of offenders and the provision of the said Section can
be made applicable in any case where the offender is found guilty for
committing an offence which is not punishable with death or imprisonment
for life. Incidentally certain exceptions have been indicated by the Hon'ble
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Supreme Court as in the case of Smt. Devki Versus State of Harayana;
1979 (3) SCC 760 where the Hon'ble Supreme Court has held that benefit
of Section 4 of the Act of 1958 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 Act
of 1958 to an accused found guilty of gold smuggling.
32. The Hon'ble Apex Court in case of Jagat Pal Singh & others vs.
State of Haryana, AIR 2000 SC 3622 has given the benefit of probation
while upholding the conviction of accused persons under Sections 323, 452,
506 IPC and has released the accused persons on executing a bond before
the Magistrate for maintaining good behaviour and peace for the period of
six months.
33. Similarly this Hon'ble Court in case of Virendra Kumar Vs State of
U.P.; 2022(120)ACrC 392 has given benefit of probation while upholding
the conviction of revisionist under section 7/16 of Food Adulteration Act
and had released the accused persons on executing a bond before Magistrate
for maintaining good behaviour and peace for period of six months.
34. Recently in the judgment passed in the case of Tarak Nath Keshari
vs. State of West Bengal; 2023 SCC OnLine SC 605, the Hon'ble Apex
Court after considering the provisions of Essential Commodities Act, 1955
(in short "Act of 1955"), extended the benefit of the Act of 1958 to the
accused. The relevant paragraphs of the judgment are as under:-
"10. However, still we find that a case is made out for grant of
benefit of probation to the appellants for the reason that the
offence was committed more than 37 years back and it was not
pointed out at the time of hearing that the appellants was
involved in any other offence. Before all the courts below, the
appellants remained on bail. While entertaining his appeal, even
this Court had granted him exemption from surrendering.
Section 4 of the Probation of Offenders Act, 1958 has a non
obstante clause. The same is extracted below:
“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
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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 subsection (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 subsection (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.”
11. Even if there is minimum sentence provided in Section 7 of
the EC Act, in our opinion, the appellants is entitled to the benefit
of probation, the EC Act, being of the year 1955 and
the Probation of Offenders Act, 1958 being later. Even if
minimum sentence is provided in the EC Act, 1955 the same will
not be a hurdle for invoking the applicability of provisions of
the Probation of Offenders Act, 1958. Reference can be made to a
judgment of this Court in Lakhvir Singh v. The State of Punjab;
(2021) 2 SCC 763.
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12. The appeal is accordingly disposed of. The appellants is
directed to be released on probation under Section 4 of
the Probation of Offenders Act, 1958 on entering into bond and
two sureties each to ensure that he will maintain peace and good
behaviour for the remaining part of his sentence, failing which he
can be called upon to serve the sentence."
35. It would not be out of place to state here that the High Court of
Judicature at Madras in the judgment dated 01.02.2022 passed in
Crl.R.C.No. 939 of 2019 (Nitin vs. State Rep by its Inspector of Police,
TIW (East) Police Station, Coimbatore) extended the benefit of the Act of
1958 to the accused, who was convicted for the offences as indicated under
Sections- 279 and 304A IPC. The relevant portion of the judgment reads as
under:-
"13. Section 3 of the Probation of Offenders Act, 1958 confers
power upon the courts to release certain offenders after
admonition. When a person is guilty of offence punishable for
any offence with imprisonment for not more than two years or
with fine or with both under the Penal Code 1860 or any other
law and there is no previous conviction proved against such
offender. The said legal provision is extracted hereunder for
ready reference:-
“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."
14. When the court empowered to try and sentence the offender
to imprisonment declines to deal with him under Section 3 of the
Probation of Offenders Act, 1958, the Appellate Court or the
revisional court, as the case may be, i.e., either the Sessions
Court or the High Court is empowered under Section 11(1) of the
Act to make an order under this Act. It is relevant to extract
Section 11(1) of the Act, which reads as under:-
“11. Courts competent to make order under the Act, appeal and
revision and powers of courts in appeal and revision.-
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(1) Notwithstanding anything contained in the Code or any other
law, an order under this Act, may be made by any court
empowered to try and sentence the offender to imprisonment and
also by the High Court or any other court when the case comes
before it on appeal or in revision."
15. It is relevant to note that the Hon-ble Apex Court, in several
cases, has held that in case of motor accidents, rash and negligent
driving should be taken serious note of and in number of cases, it
has desisted from invoking the provisions of Probation of
Offenders Act, 1958 However, in State vs. Sanjiv Bhalla (2015)
13 SCC 444, taking into consideration its earlier decisions, the
Apex Court has held as under:-
“11. Every accused person need not be detained, arrested and
imprisoned liberty is precious and must not be curtailed unless
there are good reasons to do so. Similarly, everybody convicted
of a heinous offence need not be hanged however shrill the cry
off with his head and this cry is now being heard quite frequently.
Life is more precious than liberty and must not be taken unless
all other options are foreclosed. [Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] Just sentencing is as
much an aspect of justice as a fair trial and every sentencing
Judge would do well to ask: Is the sentence being awarded fair
and just?
12. In Ved Prakash v. State of Haryana [(1981) 1 SCC 447 : 1981
SCC (Cri) 182] this Court observed that: (SCC p. 448, para 1)
"1.... [I]t is the duty of the sentencing court to be activist enough
to collect such facts as have a bearing on punishment with a
rehabilitation slant."
A little later in the judgment, it was held that: (SCC p. 448, para
1)
"1. [E]ven if the Bar does not help, the Bench must fulfil the
humanising mission of sentencing implicit in such enactments as
the Probation of Offenders Act."
In other words, this Court was of the view that punishment
should be rehabilitative and humanising and, therefore, need not
necessarily be retributive in character.
13. Subsequently, in Hari Singh v. Sukhbir Singh [(1988) 4 SCC
551 : 1988 SCC (Cri) 984] this Court held that extending the
benefit of probation to first~time offenders is generally not
inappropriate. The humanising principle was extended even to a
conviction under Part II of Section 304 IPC in State of Karnataka
v. Muddappa [(1999) 5 SCC 732 : 1999 SCC (Cri) 1046] in
which case the benefit of release on probation was granted to the
convict.
14. The benefit of the provisions of Section 6 of the Probation of
Offenders Act (relating to restrictions on the imprisonment of
offenders below 21 years of age) [ "6.Restrictions on
imprisonment of offenders under twenty-one years of age.-
(1) When any person under twenty-one years of age is found
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guilty of having committed an offence punishable with
imprisonment (but not with imprisonment for life), the court by
which the person is found guilty shall not sentence him 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 offender, it would not be desirable to deal
with him under Section 3 or Section 4, and if the court passes any
sentence of imprisonment on the offender, it shall record its
reasons for doing so.(2) For the purpose of satisfying itself
whether it would not be desirable to deal under Section 3 or
Section 4 with an offender referred to in sub-section (1), the court
shall call for a report from the Probation Officer and consider the
report, if any, and other information available to it relating to the
character and physical and mental conditions of the offender."]
was extended to persons convicted of attempted rape. This was in
State of Haryana v. Prem Chand [(1997) 7 SCC 756 : 1997 SCC
(Cri) 1176] which was followed in State of H.P. v. Dharam Pal
[(2004) 9 SCC 681 : 2004 SCC (Cri) 1477].
15. Similarly, in Om Prakash v. State of Haryana [(2001) 10 SCC
477 : 2003 SCC (Cri) 799] the convicts, first-time offenders,
were given the benefit of Section 360 and Section 361 of the
Criminal Procedure Code and it was held that reasons ought to
have been recorded for the denial of such a benefit. ["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... (2)***(3) In any case in which
a person is convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under the Penal Code,
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)-(10)
361.Special reasons to be recorded in certain cases.- Where in
any case the court could have dealt with (a) an accused person
14
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."] The
offence in that case was punishable under Section 323 and
Section 325 read with Section 148 and Section 149 IPC.
16. In the meanwhile, however, in Dalbir Singh v. State of
Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] this Court
declined to give to the appellants, convicted of an offence
punishable under Section 279 and Section 304~A IPC, the benefit
of Section 4 of the Probation of Offenders Act ["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)-(5)]
keeping in mind the galloping trend in road accidents in India and
the devastating consequences visiting the victims and their
families". It was held that: (Dalbir Singh case [(2000) 5 SCC 82 :
2004 SCC (Cri) 1208] , SCC p. 87, para 13):-
"13. [C]riminal courts cannot treat the nature of the offence under
Section 304~A IPC as attracting the benevolent provisions of
Section 4 of the PO Act. While considering the quantum of
sentence to be imposed for the offence of causing death by rash
or negligent driving of automobiles, one of the prime
considerations should be deterrence."
That decision, in which a cyclist was killed, resulted in a sentence
of three months and one year respectively for the violation of the
two sections mentioned above. That decision, in a sense, was a
precursor to a stricter application by this Court of the provisions
for releasing a convict on probation and went contrary to the
grain of earlier decisions of this Court.
15
17. In Karamjit Singh v. State of Punjab [(2009) 7 SCC 178 :
(2009) 3 SCC (Cri) 330] the convict, a first-time offender, was
denied the benefit of release on probation in view of the gravity
of the offence and a large number of injuries on the victim. The
conviction in that case was for an offence punishable under
Section 307 IPC and Section 27 of the Arms Act. That decision
contains an inadvertent error, to the following effect: (SCC p.
185, para 26)
"26. In Manjappa v. State of Karnataka [(2007) 6 SCC 231 :
(2007) 3 SCC (Cri) 76] this Court considered the scope of grant
of relief under the provisions of Section 361 CrPC or under the
provisions of the Probation of Offenders Act, 1958 reconsidering
earlier judgment of this Court in Om Prakash v. State of Haryana
[(2001) 10 SCC 477 : 2003 SCC (Cri) 799] , and held that such a
relief should be granted where the offence had not been of a very
grave nature and in certain cases where mens rea remains absent
as in a case of rash and negligent driving under Section 279 read
with Section 304-A IPC."
18. As has been noticed above, Om Prakash [(2001) 10 SCC
477 : 2003 SCC (Cri) 799] related to an offence punishable under
Section 323 and Section 325 read with Section 148 and Section
149 IPC. Manjappa [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76]
relates to the offences punishable under Sections 323, 325 and
504 IPC. There is no reference to any offence punishable under
Section 279 or Section 304-A IPC. However, it appears that this
Court desired to convey that an offence punishable under Section
279 and Section 304~A IPC is the result of an accident and is,
therefore, not grave since there is an absence of mens rea.
19. Notwithstanding this, in State of Punjab v. Balwinder Singh
[(2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] it was again held
that the punishment for causing death by rash or negligent
driving should be deterrent, in view of the frequency of such
incidents. The accident in that case resulted in the death of five
persons, and the punishment was six months- rigorous
imprisonment with a fine of Rs 5000."
36. This Court also in the judgment dated 06.03.2020 passed in Criminal
Appeal No. 2135 of 2008 (Rajjan vs. State of U.P.) granted the benefit to
the accused, who was convicted for the offences as indicated under
Sections- 147, 323/149, 325/149, 304(2)/149 IPC. The relevant portion of
the judgment reads as under:-
"8. The Hon'ble Apex Court in the case of State of Karnataka vs.
Muddappa [(1999) 5 SCC 732] had considered the question as to
whether the benefit of Probation of Offenders Act could be
extended to an offence under Section 304 Part-II of the IPC and
concluded that there is no statutory bar for application of
Probation of Offenders Act to an offence under Section 304 Part
II, where the maximum punishment is neither death nor
16
imprisonment for life. The same view has been taken by the
Hon'ble Supreme Court in the case of Mohd. Monir Alam vs.
State of Bihar [(2010) 12 SCC 26], wherein their Lordships had
given the benefit of Section 4 of Probation of Offenders Act to
the appellants and directed the trial court to release the appellants
under Section 4 of Probation of Offenders Act.
9. After hearing learned counsel for both the parties and going
through the record, I find that the learned trial court has not given
any special reasons as prescribed under Section 361 of Cr.P.C. as
to why the benefit of Section 360 of Cr.P.C. and Section 4 of
Probation of Offenders Act, has not been given to the appellants.
It appears that all the appellants belong to the poor family and
there is no criminal history against them.
10. Therefore, in view of the above discussion, I find that the
sentencing order passed by learned trial court suffers from
irregularity. It is admitted position between the parties that the
appellants have been convicted under Section 304(II) I.P.C. read
with Section 323 I.P.C. Maximum punishment under Section 304
(II) I.P.C. is ten years without fine and under Section 323 I.P.C. is
one year without fine.
11. In these circumstances, I am of the opinion that provisions of
Probation of Offenders Act, 1958 and Section 360 Cr.P.C. shall
apply in the case and the appellants deserve to get the benefit of
Section 4 of Probation of Offenders Act, 1958 and the purpose of
justice will be served if the appellants would be sentenced to
undergo imprisonment during which they were in custody for all
the offences.
12. In view of the above facts and circumstances mentioned and
also 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 are released on
probation. The accused-appellants 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. (a) In case of breach of any such condition, the
accused-appellants will undergo the sentences passed by the Trial
Court as per law. (b) The accused-appellants shall file the bonds
within a period of one month from today."
37. That it is noteworthy that the incident took place way back in the year
2005. The accused-appellants have suffered in the matter for the past about
nineteen years and there is no any criminal antecedent of them during these
years, as informed.
38. Considering the above stated facts, relevant provisions of law and
settled proposition on the issue and also the period lapsed from the date of
incident i.e. about nineteen years and the statement of informant (P.W.1)
and injured witness namely Guddi (P.W.3) and also the
17
punishment/sentence awarded for the offence under Section(s) 323/34 IPC
and 325/34 IPC, as indicated above, I am of the view that benefit of
provision of the Act of 1958 should be provided to the accused / appellants.
39. In the light of the above, as far as it relates with the conviction of the
appellants namely Suresh S/o Rameshwar, Mithilesh S/o Jai Jai Ram,
Kamlesh S/o Jai Jai Ram and Sunil alias Bhullu is maintained but the
sentence is modified. Instead of sending the appellants to jail, they are given
benefit of Section 4 of The Probation of Offenders Act, 1958 and are
directed to file two sureties each to the tune of Rs 20,000/- along with
personal bonds before District Probation Officer concerned and also an
undertaking to the effect they shall maintain peace and good behaviour
during the period of one year from today. The said bonds are to be filed by
the appellants within a period of three months from the date of this
judgment.
40. In case of breach of any of the above conditions, the appellants shall
be taken into custody and shall have to undergo sentence awarded to them.
41. With the above modification, the instant appeal is partly allowed.
42. A certified copy of the order be also sent to the court concerned for
compliance.
43. Office is directed to communicate this order to the court concerned
for necessary compliance.
44. Trial court record, if any, shall also be sent back to the district court
concerned.
Order Date :- 25.10.2024
Mohit Singh/-