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2020 DIGILAW 1306 (ALL)

Deen Dayal v. State of U. P.

2020-11-10

VIRENDRA KUMAR SRIVASTAVA

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JUDGMENT : Virendra Kumar Srivastava, J. 1. The instant criminal appeal has been preferred against the judgment and order dated 12.09.2003, passed by Additional Sessions Judge, FTC Court No.3, Hardoi in Session Trial No.261 of 1997 arising out of Crime No.124 of 1994, Police Station Shahabad, District Hardoi whereby the appellants Deen Dayal (since deceased), Suresh Chandra and Ram Das have been convicted and sentenced for one year rigorous imprisonment with fine of Rs.1000/-each for the offence under . and in default of payment of fine, they have been directed to undergo three months additional rigorous imprisonment. 2. Heard Ms. Shashi Kiran Arya, learned counsel for the appellants, Shri Dhananjay Kumar Singh, learned AGA for the State and perused the record. 3. The Chief Judical Magistrate vide letter dated 01.05.2018 has reported that appellant No.1 Deen Dayal had died eight years ago, as such the appeal stands abated in terms of appellant No.1. 4. Learned counsel for the appellants submits that though the appellants are innocent and have been falsely implicated in this case but she is not pressing this appeal on merits. Learned counsel further submits that the said occurrence was happened in the year 1994 i.e. 26 years ago, the appellants were more than 50 years at that time and they have been convicted only for one year imprisonment with fine of Rs.1000/-each. Learned counsel further submits that appellants have no criminal history but the trial Court has not granted the benefit of Probation of Offenders Act, 1958 to the appellants. Learned counsel further submits that the appellants may be granted benefit of Probation of Offenders Act, 1958 by adopting lenient view on the point of sentence. 5. Learned AGA submits that since the appellants have no criminal history, he has no objection, if the benefit of Probation of Offenders Act, 1958 is given to the appellants. 6. Now a question arises whether accused-appellants are entitled for benefit of Probation of Offenders or the sentence awarded by the trial Court is sufficient. In this case the accused-appellants have been convicted by the trial Court only for the offence under section 323/34 I.P.C and have been sentenced only for one year imprisonment and fine of Rs 1000/-and in default whereof they have been further sentenced for three months additional rigorous imprisonment. The prosecution has not produced any evidence that they were previously convicted. In this case the accused-appellants have been convicted by the trial Court only for the offence under section 323/34 I.P.C and have been sentenced only for one year imprisonment and fine of Rs 1000/-and in default whereof they have been further sentenced for three months additional rigorous imprisonment. The prosecution has not produced any evidence that they were previously convicted. So it has to be seen whether the accused/appellants are entitled for benefit of Probation of Offenders Act, 1958 or not.? Section 3 of the Act confers power on the court to release certain offenders after admonition. The said provision is 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." Section 4 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which is as follows:- 4. 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." Section 4 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which is 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. Thus the philosophy of the Probation of Offender Act 1958 is reformative. Hon'ble Supreme Court in Ratan Lal v. State of Punjab AIR 1965 S.C. 444 , while discussing the purpose and object of the Act, has observed in para no. 4, as follows:- 4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act." 8. 3 and 4 of the Act." 8. Discussing the object, reason as well as applicability of Probation of Offender Act,1958, in Uttar Pradesh, this Court in (2016) (94) ACC 208, Uma Shanker and others Vs. State of U.P. has observed in para Nos.7 to 9 as follows:- "7. Before coming into force of the Central Act (Act No.20 of 1958), some States including U.P. had their own legislation regarding probation. The necessity of having a uniform law in this regard was felt. Hence, the Central Act, i.e. The Probation of Offenders Act, 1958 was passed, the Statement of Objects and Reasons wherein enacts as under.:- "In view of the widespread interest in the probation system in the country this question has been examined and it is proposed to have a Central Law, which should be uniformly applicable to all States." 8. However, under sub-clause(3) of Section 1 of the Act, the Central Act was to come into force in a State on such date as the State Government may by notification in the Official Gazette appoint. Different dates were appointed for different parts of the State. Vide notification No.683/XXVI-2-80-500(25)-78, dated May 29, 1980 published in U.P. Gazette, Part I, dated 21st June 1980, page 848, the Central Act was made applicable to 15 districts of this State and with effect from 1.5.81 the Central Act became applicable to 35 more districts including the district 'Jaunpur' related to the instant case. 9. In the case of Hari Singh Vs. State of U.P. this Court has held that Central Act will be applicable in State of U.P. and Act 6 of 1938 will not apply after the date of notification." 9. Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, AIR 1981, SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958 has held as under:- "The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act." 10. From perusal of record, it transpires that in the year 2003, at the time of their statement under Section 313 Cr.P.C. the age of appellant Suresh was recorded as 60 years and the age of Ram Das was recorded as 57 years, it means that at present appellant Suresh may be 77 years old whereas Ram Das may be 74 years old. It is also pertinent to note that the alleged occurrence was happened 26 years ago i.e. in the year 1994. 11. According to learned counsel for the appellants, the appellants have no criminal history and also no material has been placed by learned AGA before this Court regarding previous conviction of the appellants. It is well settled principle of law that provision of law of Probation of Offenders Act, 1958 is beneficial legislation which has been made by legislative for reformation of accused who is first offender as well as young person at the time of occurrence. 12. It is well settled principle of law that provision of law of Probation of Offenders Act, 1958 is beneficial legislation which has been made by legislative for reformation of accused who is first offender as well as young person at the time of occurrence. 12. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the accused/appellants. 13. Thus, the appeal is partly allowed. The judgment and order 12.09.2003 passed by Additional Sessions Judge, FTC Court No.3, Hardoi in Session Trial No.261 of 1997 arising out of Crime No.124 of 1994, Police Station Shahabad, District Hardoi so far as it relates with the conviction of appellants Suresh Chandra and Ram Das is maintained, but the sentence is modified. Instead of sending the accused-appellants to jail, they are given benefit of Section 4 of the Probation of Offenders Act, 1958. They are directed to file two sureties bonds of Rs.2000/- and personal bond of same amount to the effect that they shall maintain peace and good behavior and shall not commit any offence during the period of one year. The bonds aforesaid be filed by him within two months from the date of judgement before District Probation Officer, Hardoi. 14. Copy of this judgment along with lower court record be sent to the District Judge, Hardoi with immediate effect for compliance.