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2013 DIGILAW 178 (HP)

Partap Chand v. State Of Himachal Pradesh

2013-03-12

V.K.AHUJA

body2013
JUDGMENT : V.K. Ahuja, J. Oral) This is a revision petition filed by the petitioners against the judgment, dated 22.12.2012, passed by the learned Sessions Judge, Kangra, vide which he had affirmed the conviction passed by the learned trial Court upon the petitioners under Sections 341, 323 and 506 read with Section 34 IPC as under: Section 341 Sentenced to undergo SI for a period of 15 days Section 323 Sentenced to undergo SI for a period of 6 months Section 506 Sentenced to undergo SI for a period of 6 months 2. A notice of the petition was issued to the respondent. 3. I have heard the learned counsel for the petitioners and the learned Assistant Advocate General for the respondent and have gone through the record of the case. 4. A perusal of the judgment passed by the learned trial Court and affirmed by the learned Sessions Judge shows that the learned trial Court had not considered the question as to whether the benefit of Probation of Offenders Act should be granted in favour of the petitioners or why it should not be granted. It is not mandatory for the court to grant the benefit of Probation of Offenders Act, but it must record reasons for not granting the benefit of Probation of Offenders Act to the persons convicted. I am supported, in this regard, by a decision of this Court in State of Himachal Pradesh v. Shakti Prashad, 1984 ILR (Himachal) 168, as well as by a decision of the Apex Court in Chandershwar Sharma v. State of Bihar, 2001 (3) Crimes 45 (Supreme Court), wherein it was held that a mandatory duty is cast upon a Magistrate to consider the question of applicability of Section 360 of the Code of Criminal Procedure and that recording of reasons is mandatory in nature. 5. In view of the above discussion, it is clear that the learned Magistrate or the learned Sessions Judge was required to record reasons as to why the benefit of Probation of Offenders Act was not being accorded in favour of the petitioners and since that has not been done, the findings of the learned Sessions Judge affirming the sentence imposed upon the petitioners is set aside. The learned Sessions Judge shall consider the question of granting the benefit of Probation of Offenders Act or of Section 360 of the Cr.P.C., as the case may be. However, it is not mandatory to grant the benefit under this provision but the Court has to give reasons for not granting 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 trial Court holding the petitioners guilty and that question is kept open which shall be considered in case an appeal is preferred by either of the parties. 6. The petition is accepted to the above extent and the case is remanded to the learned Sessions Judge, Kangra at Dharamshala, who shall hear the parties in view of the above observations. The parties, through their counsel, are directed to appear before the learned Sessions Judge on 22.4.2013 and the learned Sessions Judge shall try to dispose of the case within a period of three months from the date fixed. The Registry is directed to send the records of the case along with a copy of this judgment to the learned Sessions Judge, Dharamshala, forthwith. The petition stands disposed of accordingly.