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2016 DIGILAW 321 (JHR)

Sabdar Miyan @ Sabdar Mian v. State of Jharkhand

2016-02-10

PRASHANT KUMAR

body2016
ORDER : 1. This revision is directed against the judgment dated 16.10.2015 passed by learned Additional Sessions Judge-IV, Giridih in Criminal Appeal No. 49 of 2013 with Criminal Appeal No. 50 of 2013, whereby he dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by Judicial Magistrate, 1st Class, Giridih in T.R. No. 1679 of 2013 corresponding to G.R. No. 651 of 2003. 2. At the outset, learned counsel for the petitioner submits that petitioner confine his prayer only with respect to order of sentence passed by the learned court below. 3. Under the said circumstance, I heard counsels for the parties on the point of sentence. It appears that the petitioner has been convicted under Sections 147, 149, 323, 341, 342, 452 & 506 of the I.P.C. It further appears that for the offence under Section 147 of the I.P.C, petitioner has been sentenced to undergo R.I. for six months, whereas he has been sentenced to undergo S.I. for 15 days for the offence under Section 341 of the I.P.C. and three months R.I. for the offence under Section 342 of the I.P.C. and learned court below has further sentenced the petitioner to undergo R.I. for three months under Section 323 of the I.P.C. The court below further sentenced the petitioner to undergo R.I. for six months for the offence under Section 506 of the I.P.C. The court below further sentenced the petitioner to undergo R.I. for two years with fine of Rs. 1,000/-under Section 452 of the I.P.C. and in default of payment of fine, R.I. for one month. 4. It is submitted by learned counsel for the petitioner that though in the court below it has been argued that petitioner is an old man and he is the first offender, therefore, the benefit of Probation of Offenders Act may be given to him, but the learned court below without assigning any special reason has rejected the aforesaid submission of the petitioner. Accordingly, it is submitted that the order of trial court as well as the appellate court is bad being violative of provisions contained under Section 361 of the Cr.P.C. 5. Learned Additional P.P. opposed the submission. 6. Having heard the submissions, I have gone through the record of the case. Accordingly, it is submitted that the order of trial court as well as the appellate court is bad being violative of provisions contained under Section 361 of the Cr.P.C. 5. Learned Additional P.P. opposed the submission. 6. Having heard the submissions, I have gone through the record of the case. From perusal of the trial court judgment, I find that it has been argued on behalf of the petitioner that keeping in view the old age of petitioner and also taking into account that petitioner is a first offender, benefit of Probation of Offenders Act may be given, but the court below has rejected the said plea by saying that the offences committed by the petitioner are serious in nature. 7. Section 361 of the Cr.P.C. makes it imperative for the trial court as well as the appellate court to assign special reason for not giving benefit of Probation of Offenders Act to the convict. 8. In the instant case, I find that the learned trial court has not assigned any special reason, whereas the appellate court has not discussed this aspect of the matter. Under the said circumstance, I find that the order of sentence is illegal, therefore, cannot be sustained. 9. Accordingly, I set aside the order of sentence and direct the learned trial court to release the petitioner on execution of bond of Rs. 10,000/- with two sureties for maintaining good conduct for one year.