Sanjai Singh and Another v. State of U.P

Court No. - 13 Case :- CRIMINAL APPEAL No. - 880 of 2002 Appellant :- Sanjai Singh And Another. Respondent :- State of U.P. Counsel for Appellant :- M.L.Syal,Km.S.K.Arya,Prabhu Sharan,Sarvesh Kumar Shukla Counsel for Respondent :- Govt.Advocate Hon'ble Karunesh Singh Pawar,J.

¶1Heard Mr. Prabhu Sharan and Sarvesh Kumar Shukla, learned counsel for the appellants as well as learned A.G.A. and perused the record.

¶2Present criminal appeal has been filed against the judgment and order dated 27.6.2002, passed by Special Judge, SC/ST Act, Hardoi in Special Case No.294 of 1992 Crime No.397 of 1991, P.S. Kotwali City, district Hardoi, whereby the appellants have been convicted and sentenced to six months R.I. for each of the offences under sections 323/34, 504, 506 I.P.C. and section 3(1) (x) of S.C. & S.T. Act, along with fine of Rs.1000/-, with default provision. All the sentences were directed to run concurrently.

¶3At the outset, learned counsel submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission only with respect to the order of sentence. Appellants' counsel submits that the appellants were released on bail vide order dated 16.7.2002 passed by this Court after the impugned judgment and they have not misused the liberty of bail. It is submitted that the appellants are not a previous convict. They are the first offender and they may be given the benefit of provisions of the Probation of Offenders Act, 1958 (in short, 1958 Act). He further submits that in view of the facts and circumstances including the fact that the accused appellants have not been convicted previously for any offence, the trial court ought to have invoked the provisions of the Probation of Offenders Act, 1958. The Trial Court did neither invoke the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of 1958 Act, as provided in Section 361 CrPC. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and therefore, it cannot be sustained.

¶4Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise, is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act. The accused-appellants have statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Section 4 of the Act as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act were not applied, then the learned Trial Court should have recorded reasons for the same.

¶5Learned AGA appearing for the State does not dispute the fact that accused-appellants are the first time offender and were not previously convicted in any other case. He also submits that in view of the express provisions of Section 360 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellants and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of 1958 Act can be granted in this case.

¶6In view of the above facts and circumstances mentioned above, including the fact that the appellants do not have any criminal antecedent and are the first offender, as also the scope of section 4 of the Act, this appeal is dismissed by upholding the conviction against the accused-appellant. Thus, the judgment of conviction passed by the learned trial Court is upheld. However, the appellants are granted the benefit of Section 4 of 1958 Act.

¶7The accused-appellants Sanjai Singh and Ashok Kumar are released on probation by giving them the benefit of section 4 of the Probation of Offenders Act. The said accused-appellants shall file personal bonds to the tune of Rs.20,000/- and two sureties each of the like amount, and they shall keep peace in the society and shall not commit any such offence in future. In case of breach of any such condition, the accused-appellants will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bonds within a period of one month from today.

¶8Accordingly, the order of sentence is modified to the above extent.

¶9Let a copy of this judgment as well as the record, if received, be transmitted to the concerned Trial Court forthwith for necessary compliance. Order Date :- 23.11.2023 kkb/ High Court of Judicature at Allahabad, Lucknow Bench