Allahabad High Court
Kapil Dev Pandey vs State Of U.P. on 10 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:44237 AFR Reserved In Chamber Case :- CRIMINAL REVISION No. - 432 of 2009 Revisionist :- Kapil Dev Pandey Opposite Party :- State of U.P. Counsel for Revisionist :- Naveen Kumar Pandey,Dinesh Kr. Chaudhary Counsel for Opposite Party :- G.A. Hon'ble Umesh Chandra Sharma,J.
1. Heard learned counsel for the revisionist, learned AGA and perused the records.
2. This criminal revision has been filed against the judgment and order dated 24.04.2009 passed by the ACM (Northern Railway), Gonda in Criminal Case No.371 of 1997 (State Vs. Kapil Dev Pandey and another) as well as the judgment and order dated 07.08.2009 passed by the Additional Sessions Judge, Court No.6, Gonda in Criminal Appeal No.14 of 2009 (Kapil Dev Pandey Vs. State of UP).
3. The brief facts of the case are that on 03.10.1996 the informant, Kailash Prasad, deployed as gangman gang no.13 as gateman at gate no.113-C, at about 19:30 hour saw two persons in suspicious condition bringing some heavy article towards the gate. Upon some doubt, when he asked them to stop, both of them tried to run away but were caught by him with the help of Harishchandra - gangman, gang no.13 and Baijnath, gateman gate no.113-C. Upon being inquired, they both told their names as Kapil Dev Pandey and Ramesh Kumar Shukla and from the possession of Kapil Dev Pandey IRS(T)5OR written one bearing plate and from the other accused one simple bearing plate was recovered. The accused persons informed that the recovered articles were stolen from railway line near the bridge which was confirmed by the informant. Thereafter FIR was lodged at Crime No.05 of 1996, under Section 3 Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act, 1966'), Police Station Tulsipur, District Gonda (Balrampur). After investigation charge sheet was submitted, charge was framed under Section 3 of the Act, 1966 against the accused which was denied by them and they sought for trial.
4. During the trial prosecution adduced oral and documentary evidence and after closure of evidence their statement under Section 313 CrPC was recorded and after hearing the argument, the accuseds were convicted and sentenced on 24.04.2009 with simple imprisonment of one year each and fine of Rs.1,500/- each for committing an offence under Section 3 of the Act, 1966.
5. The order dated 24.04.2009 was challenged by the revisionist, Kapil Dev Pandey before Additional Sessions Judge, Court No.6, Gonda (Balrampur) in Criminal Appeal No.14 of 2009 which was dismissed and the judgment and order dated 24.04.2009 was confirmed. Hence, this criminal revision has been preferred.
6. Learned counsel for revisionist submitted that the impugned judgement and order dated 24.04.2009 passed by trial court and the order dated 07.08.2009 passed by the appellate court are illegal, perverse and against the facts and evidence on record. The courts below have failed to appreciate the defence evidence which was more probable than that of prosecution evidence. The appellate court has committed illegality in maintaining the order of conviction passed by the trial court. It is also submitted that the appellate court as well as the trial court both have committed manifest error of law in refusing the benefit of Probation of Offenders Act to the revisionist without recording any reason for the same. Learned counsel for the revisionist further submitted that the revisionist was on bail during trial and never misused the liberty of bail. However, after arguing at some length, learned counsel for the revisionist submits that the revisionist may be extended the benefit of UP Probation of Offenders Act. He has further submitted that during the pendency of revision, there is no criminal antecedents and the revisionist is living as a law abiding citizen.
7. Learned AGA opposed the revision and submitted that there is no material irregularity or illegality in the impugned judgments and orders of the courts below and keeping in view the evidence on record, the revisionist was rightly convicted.
8. Section 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under:-
"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.
(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 a 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.
361. Special reasons to be recorded in certain cases.-Where in any case the Court could have dealt with,--(a) an accused person 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, 135 but has not done so, it shall record in its judgment the special reasons for not having done so."
9. There is one central Legislation on the subject in the name of "Probation of Offenders Act, 1958", relevant Sections 3 and 4 thereof are extracted hereunder:-
"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.
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."
10. There is one more legislation on the subject namely "Uttar Pradesh First Offenders' Probation Act, 1938". Sections 3 and 4 of the Act are reproduced herein below:-
"3. Power of court to release certain offenders after admonition.--In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years imprisonment and no previous conviction is proved against him, the court by which he is found guilty 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. Power of court to release certain offenders on probation of good conduct.--(1) When any person 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, antecedents or physical or mental condition 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 the court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and 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 :
Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government, which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.
(2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order:
Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years.
(3) A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(4) A court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.
A perusal of these legislations will leave a student of Law in a confused state of mind. All these legislations are dealing with the same subject and on first sight looks encroaching each other. Looking closely, one may get that Section 360 of the Code relates only to persons not under twenty one years of age is convicted for an offence punishable with fine 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 for an offence not punishable with death or imprisonment for life, and no previous conviction is proved, may be released on probation, taking into consideration the facts and circumstances of the case, character of the offender and the gravity of the offence committed by him. Section 4 of the Probation of Offenders Act is having a much wider scope as it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. If I look further deep into Section 360 CrPC we will find that in sub-section (10) it has been provided that nothing in this section shall affect the provisions of the Probation of Offenders Act."
11. A Division Bench of this Court in State of Uttar Pradesh Vs. Misri Lal and others, 1982 CrLJ 1420 held as under:-
"26. ...The application of Section 360 in Utter Pradesh was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the Utter Pradesh Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d) :-
"(e) ...the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State".
Section 361 of the CrPC lays down that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 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 judgement the special reasons for not having done so.
It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the Utter Pradesh First Offenders' Probation Act, 1938."
12. Thus, provisions of UP Probation of First Offenders' Act shall be followed, in the geographical area where that has been made applicable and not Section 360 of the CrPC. In this way enforcement of Probation Act in some particular area, thus excludes the applicability of the provisions of Section 360 of the Code in that particular area,however it will be the bounden duty of the Court to consider as to why not to proceed to grant the benefit of Probation of Offenders Act, as provided under Section 361 of the CrPC.
13. Coming to the point of desirability of extending the benefit of Probation Act to the accused/revisionist in Sitaram Paswan and another Vs. State of Bihar, AIR 2005 SC 3534 Supreme Court held as under:-
"For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."
14. In Mohd. Hashim Vs. State of U.P and others, AIR 2017 SC 660 Supreme Court opined as under:-
"20. ...In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:-
"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 conditions laid down in the appropriate provisions 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 Sections 3 and 4 of the Act."
15. This is a case of the year 1996 and more than 26 years have passed. The incident took place way back in the year 1996. The accused-revisionist has suffered in matter for past three decades and there is no other pre or post criminal antecedent of the accused revisionist. Therefore, it would not be appropriate to send the revisionist in jail.
16. So far as the conviction part is concerned, this Court does not find any illegality, perversity or infirmity in the order passed by the courts below but keeping in view the discussion made above, the sentence inflicted on the accused-revisionist requires modification.
17. The revision is partly allowed with following modifications:-
17.1. The conviction of the accused-revisionist by courts below is upheld. The sentence of revisionist-accused is modified to the tune that he is provided benefit of Section 4 of the UP Probation of Offenders Act and is released on probation on the condition that he will keep peace and good conduct for one year from today and shall file two sureties to the tune of Rs.30,000/- each along with his personal bond before the court below and also an undertaking to the effect that he shall maintain peace and good behaviour during the period of one year from today. In case of breach of any of the conditions mentioned above, the revisionist will be subjected to undergo the sentence as directed by the courts below. The bonds aforesaid will be filed by the revisionist-accused within one month from today, before the District Probation Officer, Balrampur, UP under the intimation to the concerned court.
18. A certified copy of the order be also sent to the court concerned and District Probation Officer, Balrampur, UP for compliance.
Order Date :- 10.7.2023 Shahroz (Umesh Chandra Sharma,J.)