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2004 DIGILAW 96 (PNJ)

Samshuddin v. State of Haryana

2004-01-28

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - The petitioner Samshuddin was prosecuted under Sections 5/8 of the Punjab Prohibition of Cow Slaughter Act, 1955 (hereinafter referred to as the Act) by the Sub Divisional Judicial Magistrate, Nuh. He was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1500/-. In default of payment of fine, he was further directed to undergo imprisonment for three months. Aggrieved by the order of S.D.J.M. Nuh, the petitioner preferred an appeal before the learned Additional Sessions Judge, Gurgaon. The same was dismissed on 17.7.1999. 2. Aggrieved by the orders of courts below, the petitioner has filed the present revision. 3. The facts need not to be referred in this revision petition as the learned counsel for the petitioner Shri Parduman Yadav has not made the submissions on the merits of the case. He made his submissions qua the quantum of sentence. He submitted that the petitioner is not previous convict and the maximum sentence for the offence under which the petitioner has been convicted is two years R.I. He further submitted that the courts below have erroneously not extended the benefit of probation to the petitioner and no reason has been given for doing so. 4. Mr. K.S. Chauhan, learned DAG has not opposed the prayer made by learned counsel for the petitioner. 5. I have given my thoughtful consideration to the rival contentions and perused the record. 6. Under section 360 Criminal Procedure Code a convict is to be released on probation of good conduct after admonition. Section 360 Criminal Procedure Code reads as under :- "360. 5. I have given my thoughtful consideration to the rival contentions and perused the record. 6. Under section 360 Criminal Procedure Code a convict is to be released on probation of good conduct after admonition. Section 360 Criminal Procedure Code reads 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, it if 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." 7. The provisions of Section 361 Criminal Procedure Code are mandatory in nature and enjoin upon the court to give specific reason if convict is not dealt with under section 360 Criminal Procedure Code as it has been laid down in Bishnu Deo Shah v. State of West Bengal, AIR 1979 Supreme Court 964. Therefore, it is obligatory on the part of the Court to deal with a convict when he is not convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved againt the offender. In the instant case the learned magistrate has not given any reason why the petitioner was not to be dealt with under section 360 Criminal Procedure Code The maximum sentence under sections 5 and 8 of the Act for which the petitioner has been convicted is 2 years. The petitioner is not previous convict. Taking into consideration the conduct of the petitioner, there is no ground for declining the benefit of probation to him. The petitioner is not previous convict. Taking into consideration the conduct of the petitioner, there is no ground for declining the benefit of probation to him. It will be in the interest of justice that conviction of the petitioner be maintained and the sentence imposed upon the petitioner be suspended. The petitioner is, therefore, released on probation for a period of one year, on furnishing personal bonds of Rs. 10,000/- with one surety of the like amount under section 4(1) of the Probation of Offenders Act for one year. He is directed to keep peace and be of good behaviour during this period. The petitioner is further directed to pay Rs. 3500/- each as litigation expenses within one month from the date of receipt of copy of this order. Fine, if already paid, shall be adjusted towards litigation expenses. With this modification in the sentence, the revision is dismissed. Revision dismissed.