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Rajasthan High Court · body

2004 DIGILAW 1445 (RAJ)

Himat Lal v. State

2004-10-01

H.R.PANWAR

body2004
JUDGMENT 1. - Issue notice to the learned Public Prosecutor for final disposal. 2. Mr. J.P.S. Choudhary, learned Public Prosecutor accepts notice on behalf of the respondent State. 3. By the instant criminal revision petition filed under Section 397/401 Cr.P.C. petitioner has challenged the order dated 22.9.2004 passed by the Additional Sessions Judge, Nimbaheda (for short 'the appellate court' hereinafter) in criminal appeal No. 5/2004 whereby the appellate court partly allowed the appeal filed by the petitioner against the judgment and order dated 26.2.2004 passed by the Judicial Magistrate, Dungla (for shot 'the trial court' hereinafter) in criminal case No. 223/2000 whereby the trial court convicted the petitioner for the offence under Section 498-A and 323 IPC. The petitioner was sentenced by the trial court to undergo one year's rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine, to further undergo 3 months' simple imprisonment for the offence under Section 323 IPC; and 3 year's rigorous imprisonment and a fine of Rs. 5000/- and in default to payment of fine, to further undergo 9 months' simple imprisonment for the offence under Section 498-A IPC. 4. While partly allowing the appeal filed by the petitioner, the appellate court set aside the order of trial court to the extent convicting and sentencing the petitioner for the offence under Section 498-A I.P.C., however, conviction and sentence for the offence under Section 323 I.P.C. have been maintained. 5. I have heard learned counsel for the petitioner and the learned Public Prosecutor for the State. I have carefully gone through the impugned judgment and order of the appellate court dated 22.09.2004 so also of the trial court dated 26.2.2004. 6. At the outset learned counsel for the petitioner submits that the petitioner does not challenge his conviction for the offence under Section 323 IPC, however, he submits that the trial court as well as appellate court have not extended the benefit of Section 360 Cr.P.C. as also the benefit provided under the Probation of Offenders, Act, 1958 (for short the 'Act' hereinafter). 7. There is nothing on record to show that the petitioner was earlier tried by any court or convicted. There is nothing adverse on record regarding the antecedents of the petitioner. The petitioner is a poor labourer. 8. Section 361 Cr.P.C. provides that special reasons should be recorded in cases of sentence. 9. 7. There is nothing on record to show that the petitioner was earlier tried by any court or convicted. There is nothing adverse on record regarding the antecedents of the petitioner. The petitioner is a poor labourer. 8. Section 361 Cr.P.C. provides that special reasons should be recorded in cases of sentence. 9. Section 361 Cr.P.C. reads as under : "Special reasons to be recorded in certain cases. - Where in any 40 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 of rehabilitation of youthful offenders : but has not done so, it shall record in its judgment the special reason for not having done so." From perusal of the impugned judgment and orders by both the courts below, I do not find any special reason recorded in the judgment and orders for denying the benefit of provisions of the Act. 10. Having regard to the facts and circumstances of the case, I consider it just and proper to grant the benefit of Section 4(1) of the Act. 11. Consequently, the revision petition filed by the petitioner against his conviction for the offence under Section 323 IPC is maintained, however, instead of sentencing him at once to the imprisonment, it is directed that the petitioner Himat Lal son of Prem Chand be released on probation provided he furnishes a personal bond in the sum of Rs. 10,000/- along with one surety in the like amount to the satisfaction of the trial court for maintaining peace, tranquillity and be of good behaviour for a period of two years and to appear and receive sentence whenever called upon to do so. Since the revision petition has been decided, the bail application has become infructuous and accordingly disposed of.Revision allowed - Benefit of Probation Allowed. *******