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2012 DIGILAW 980 (HP)

Gagnesh Kumar v. State Of Himachal Pradesh

2012-12-14

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. (Oral) This is a criminal revision petition filed by the petitioner under Sections 397/401 of the Criminal Procedure code, against the judgment of the Court of learned Sessions Judge, Mandi, dated 11.4.2007, vide which the appeal of the petitioner against the judgment of the conviction passed by the learned Judicial Magistrate 1st Class, Jogindernagar, dated 19.5.2006, under Sections 323/325 I.P.C. was partly allowed. 2. Briefly stated, the facts of the case are that complainant filed a report and a case was registered against the petitioner. The challan was filed before the Court of learned Judicial Magistrate 1st Class, Jogindernagar, who tried the petitioner/accused and convicted him under Section 323 I.PC. to pay fine of Rs. 500/- and under Section 325 I.P.C., to suffer simple imprisonment for six months and to pay fine of Rs. 500/-. 3. On appeal, the sentence was modified as under:- 1. Under Section 325 I.P.C. : One month simple imprisonment with fine of Rs. 500/- 2. Under Section 323 I.P.C. : Fine of Rs. 500/- upheld. In default of payment of fine, the petitioner was to undergo simple imprisonment for 7 days on each count. 4. A revision petition was filed by the petitioner against the judgment of the learned Sessions Judge. Notice was issued to the respondent and record of both the Courts below was called for. 5. I have heard learned counsel for the parties and have gone through the record of the case. 6. During the course of arguments, it has been observed by me that while imposing sentence upon the petitioner by the learned Judicial Magistrate as well as by the learned Sessions Judge, both the Courts below have not considered the question as to whether the provisions of Probation of Offenders Act are attracted to the present facts or not or as to whether the benefit of Probation of Offenders Act, should be accorded in favour of the petitioner or not. 7. I may make a reference to the decision of this Court in State of Himachal Pradesh v. Shakti Prashad, 1984 I.L.R. (Himachal) 168. 7. I may make a reference to the decision of this Court in State of Himachal Pradesh v. Shakti Prashad, 1984 I.L.R. (Himachal) 168. I may also make a reference to a decision of Honble Apex Court in Chandershwar Sharma v. State of Bihar, 2001 (3) Crimes 45 (Supreme Court), wherein it was held by their Lordships that a mandatory duty is cast upon a Magistrate to consider the question of applicability of Section 360 of the Code of Criminal Procedure. It was held that recording of reasons is mandatory in nature. 8. In view of the law laid down by the Honble Apex Court, it is necessary for a Magistrate to record the reasons as to why the benefit of Probation of Offenders Act is not being accorded in favour of the petitioner and since that has not been done, the findings of learned Sessions Judge sentencing the petitioner as detailed above, are liable to be set aside. The same should have been considered by the learned trial Court and the learned Sessions Judge in appeal while affirming the sentence, has also not considered these provisions, which are mandatory in nature and recording of reasons is necessary. 9. The learned Sessions Judge shall consider this question of granting the benefit of Probation of Offenders Act or Section 360 of the Code of Criminal Procedure, as the case may be, and it is not mandatory to grant the benefit under these provisions, but the Court has to give the reasons for not according the benefit in view of the above decisions. I may mention herewith that no findings are being given in regard to the findings of the learned Sessions Judge holding the petitioner guilty and that question is kept open which shall be considered in case an appeal/revision is preferred by the petitioner. The revision petition is accepted to this extent. 10. In view of the findings as above, the petition is accepted and the order passed by the learned trial Court, modified by the learned Sessions Judge, is set aside. The learned Sessions Judge shall hear the parties on 15th January, 2013. Parties through their counsel are directed to put up appearance before the learned Sessions Judge on the date fixed.