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Madhya Pradesh High Court · body

2011 DIGILAW 930 (MP)

Kailash v. State of M. P.

2011-08-16

M.C.GARG

body2011
ORDER M.C. Garg, J. 1. Both the Petitioners/accused have filed this revision petition being aggrieved by the judgment and order of conviction dated 11-7-11, delivered in Cri. Appeal No. 313 of 10, whereby the Addl. Sessions Judge maintaining the finding of conviction and sentence recorded by the Trial Court for commission of offence under Sections 323/34 and 325/34 of the Penal Code, sentenced them to undergo two months RI with fine of Rs. 100/- and one year RI with fine of Rs. 200/- to each of the Petitioner on two counts. 2. Learned Counsel for the Petitioners submits that the Appellate Court as well as the Trial Court have refused to grant probation to the Petitioners even though they are not previous convict. They have also not cared to make any observation as to why the Petitioners are not entitled to release on probation despite the fact that Petitioners are first offenders. Nothing has been brought to the notice of this Court which may goes to show that the Petitioners are previous convict. 3. According to the prosecution, the alleged incident took place on account of theft of electricity wire. The Petitioners are agriculturists and are first offenders. The alleged incident took place all of a sudden. The benefit of the provisions of Sections 360 and 361 of Code of Criminal Procedure ought to have been given by the Trial Court as well as by the Appellate Court. 4. Hon'ble the Apex Court, while dealing with the similar issue for grant of probation has observed in the case of State of Haryana v. Premchand reported in (1997) 7 SCC 756 and in the case of Bishnu Deo v. State of West Bengal, reported in AIR 1979 SC 964 . In the case of Bishnu Deo (supra), Their Lordships have observed as under: If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so. Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus caste a duty upon the Court to apply the provisions of Section 360 wherever, it is possible to do so and to state 'special reasons' if it does not do so. In the context of Section 360, the 'special reasons' contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play most prominent role in determining the sentence to be awarded, special reasons must have some relation to these factors. 5. In view of the aforesaid observations, it is a fit case wherein the Petitioners ought to have been granted the benefit of probation. As such, the sentence awarded to each of the Petitioners is hereby suspended. Both the Petitioners are directed to be released on probation for a period of two years subject to each of them furnishing a bond of Probation in sum of Rs. 20,000/- with separate surety in the like amount to the satisfaction of the Trial Court on the conditions that each of the Petitioner shall not involve in any kind of criminal activities and shall not commit similar offence during the aforesaid period of two years and maintain cordial relations with the complainant. It is made clear that in case they commit any offence, they shall surrender their bonds before the Trial Court to undergo the sentence awarded by the Appellate Court. With the aforesaid, the revision stands allowed.