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2019 DIGILAW 2674 (ALL)

Daya Ram v. State of U. P.

2019-12-02

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Shri S.K. Tiwari, learned counsel for the revisionists, learned AGA for the State and perused the record. 2. Learned counsel for the revisionists without entering into the merits of the case, has confined his argument to the effect that the revisionist have been convicted for the offence under sections 147, 323/149 and 325/149 IPC and the maximum sentence which has been awarded to the revisionist is one year. 3. This revision pertains to the judgement passed by Additional Sessions Judge/Fast Track Court No. 1, Gorakhpur in Criminal Appeal No. 26 of 2005 by which the appeal of the revisionist has been dismissed which was filed against the conviction and sentence dated 23.02.2005 passed by Judicial Magistrate Ist, Gorakhpur in Criminal Case No. 49/02/88 (State Vs. Sahdev and others), under sections 147, 323/149, 325/149 IPC, P.S. Nautanwa, District Gorakhpur by which revisionists were convicted and sentenced for the offence under section 147 for 3 months simple imprisonment, for the offence under section 323/149 IPC for six months simple imprisonment and for the offence under section 325/149 for one year simple imprisonment. It is pertinent to mention that the conviction and sentence was maintained by the judgement in appeal and the appeal was dismissed. 4. The submission of the learned counsel is that the said criminal case in respect of a criminal incident dated 28.10.1988 and it was in between related parties through their ancestral and a marpeet took place between the two and a NCR was also lodged from the side of the revisionists in which charge-sheet was submitted. But prior to decision of this Court, the same resulted in acquittal. Further submission is that a reference of that cross case finds mention in the judgement of the lower court. It has been further submitted by the learned counsel that the case which was lodged from the side of the revisionists resulted in acquittal and the learned trial court failed to determine who was aggressor on technical ground. That the police papers which were filed in this case from the side of the revisionist were photostat and they were not proved by the adducing evidence. That the police papers which were filed in this case from the side of the revisionist were photostat and they were not proved by the adducing evidence. He has submitted that what ever was the result, it was specifically requested from the side of the revisionist all the accused persons before the learned Magistrate for giving benefit of probation in view of the sentence passed by them, but the same was not legally considered. Further submission is that in the criminal incident the accused persons were not assigned with any deadly weapon and all the injuries were caused by lathi and danda. It has been further submitted that only two injured persons sustained fracture and the fracture was not on vital parts but on finger and elbow. The further submission is that it is a case pertaining to a criminal offence of the year 1998. 5. So far as conviction under Sections 147, 323/149, 325/149 IPC are concerned, learned counsel to the revisionists requested that looking to the fact that revision is pending since 2005 and awarded sentence is not more than one year simple imprisonment, revisionists may be released on probation for maintaining peace and good behavior for specified period. Learned counsel for the revisionist has further argued that the effect of Sections 3 and 4 of the Probation of Offenders Act, 1958, in the background of what is stated in Section 360 of the Code of Criminal Procedure, 1973, has not been kept in view. Learned counsel for the revisionists has also relied upon the judgment in the case of Subhash Chand & others Vs State of UP (2015 Law Suit (All) 1343) and the judgment in Criminal Revision No. 1319 of 1999 (Hargovind & Others vs. State of U.P.) passed by this Court on 11.01.2019. Section 3 of the Probation of Offenders Act reads as follows: "3. Section 3 of the Probation of Offenders Act reads as follows: "3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." 6. Thus, this was the bounden duty of the learned trial court and also the appellate court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. Section 4 of the Probation of Offenders Act reads as follows: "4. Thus, this was the bounden duty of the learned trial court and also the appellate court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. Section 4 of the Probation of Offenders Act reads as follows: "4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 7. A similar provision finds place in the Code of Criminal Procedure. There, Section 360 provides: 360. Order to release on probation of good conduct or after admonition. 7. A similar provision finds place in the Code of Criminal Procedure. There, Section 360 provides: 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, if it 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: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. 8. Again, Section 361 reads as below: "361. Special reasons to be recorded in certain cases.- Where in any case the Court could have dealt with- (a) an accused persons under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so." 9. These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the trial courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused person. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 10. In this instant case, the court below has not considered the probation law, although, the revisionists were only convicted for the offence under Sections 147, 323/149, 325/149 IPC for the maximum period of one year. Therefore, the benefit of probation could have been given in view of the law referred above. But, while awarding sentence this aspect was not considered. The learned court below did not even write a single word as to why the benefit of this beneficial legislation was not given to the accused whereas it was mandatory to do so under the provisions of Section 361 Cr.P.C. Moreover, the occurrence relates to the year 1988 and this revision is pending since 2005 and therefore, no purpose of justice will be served if the revisionists are sent to jail to undergo the terms of sentence after lapse of such long time. 11. In Subhash Chand Case (supra), this court has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts: 30. "It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgement to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgement. The Registrar General of this Court is directed to circulate copy of this Judgement to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgement. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance." 12. In addition to the above judgment of this Court, I perused the judgment of Hon'ble the Apex Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659 in which, giving the benefit of Probation of Offenders Act, 1958, the Court has observed as below: "The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour." 13. Similarly, in Jagat Pal Singh & others Vs. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour." 13. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622 , the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months. 14. This Court vide order dated 28.11.2019 in case of Soney Lal Pasi Vs. State of U.P. passed in Criminal Revision No. 2820 of 2003 has also released the accused persons convicted under sections 323, 324, 354 IPC on probation after giving benefit of section 4 of the Probation of Offenders Act. 15. In the light of above discussion, I find no illegality, irregularity or impropriety nor there is any jurisdictional error in the impugned Judgment and I am of the considered view that the conviction recorded by the court below under Sections 147, 323/149, 325/149 IPC and upheld by the learned appellate court below is not required to be disturbed. Consequently, the impugned judgment of conviction and sentence is upheld. 16. However, instead of sending the revisionists namely Daya Ram, Sri Ram and Bali Ram to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act. Consequently, the revisionists shall file two sureties to the tune of Rs.25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the Magistrate. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the Judgment as per law and Rules. 17. Accordingly, the revision is disposed of finally. 18. Let a certified copy of this order be sent alongwith lower court record to the court concerned for compliance.