Allahabad High Court
Smt.Santi Devi And 4 Ors. vs State Of U.P. on 5 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- CRIMINAL APPEAL No. - 1481 of 2003 Appellant :- Smt.Santi Devi And 4 Ors. Respondent :- State of U.P. Counsel for Appellant :- Hemant Kumar Mishra Counsel for Respondent :- Govt.Advocate Hon'ble Brij Raj Singh,J.
Heard Sri Hemant Kumar Mishra, learned counsel for the appellants and Sri Manoj Kumar Sahu, learned A.G.A. for the State.
This criminal appeal has been preferred against the judgment and order order dated 10.9.2003 passed by theAdditional sessions judge Barabanki in S.T. no. 163 of 2001 state of UP. versus Deen Bandhu and others,whereby the appellants are convicted under section 147 I.P.C. sentenced to undergo one years rigorous imprisonment, under section 148 sentenced to undergo two years rigorous imprisonment, under section 323/149 IPC sentenced to undergo six months rigorous imprisonment, under section 324/149 IPC sentenced to undergo Two years rigorous imprisonment and under section 325/149 IPC sentenced to undergo four years rigorous imprisonment with the fine of Rs 1000 and in default of payment appellant shall further undergo Three months rigorous imprisonment.
In compliance of the order passed by this Court, C.J.M., Barabanki, has sent report on 07.09.2022 and office has also reported to that effect that Appellant No. 1 (Smt. Shanti Devi), Appellant No. 2 (Deen Bandhu) and Appellant No. 2 (Asharfi) have died during the pendency of this appeal.
Therefore, the appeal in respect of Appellant No. 1 (Smt. Shanti Devi), Appellant No. 2 (Deen Bandhu) and Appellant No. 2 (Asharfi), stands abated.
As per the prosecution case lodged by P.W.-1 (Surendra), it is admitted that the litigation of consolidation was going on between the parties and it has been mentioned in the F.I.R. that on some part of the land the accused had taken possession forcibly and has made part of their field. The complainant, in the presence of authorities like police, Kanoongo and Lekhpal got his field demarcated and raised a Med. The accused again destroyed that Med on 13.05.1999 for which written complaint was filed in the police station. After coming to know about this complaint, the accused Deen Bandhu threatened the complainant to kill and to annihilate the entire family and in continuation of this complaint, on 15.05.1999 at 7:30 a.m., Deen Bandhu, his brother Ram Asre & Asharfi, his sons Chandrabali & Phoolchandra, his wife Smt. Shanti and wife of Chandrapal, namely, Smt. Meena came to the house of the complainant. It is mentioned in the F.I.R. that the accused had beaten the complainant and other family members of the complainant. The injuries were received by P.W.-1 (Surendra Kumar), P.W. -2 (Harendra Kumar) and P.W. -5 (Ramsharan) and one Gyanwati. The report was lodged under Sections 147, 148, 323/149, 324/149, 308/149, 434, 504, 506 I.P.C.
P.W.-5 (Ramsharan) received four injuries and it has been opined by the doctor that the injuries have been caused by lathi and danda except the injury No. 1, which was caused by an axe. Similarly, the injured Harendra Kumar (P.W.-2) received three injuries and it has been opined by the doctor that the injury No. 1 was serious in nature and injuries No. 2 and 3 are simple. The injured Surendra Kumar (P.W.-1) also received five injuries and the nature of all the injuries, in the opinion of the doctor, were simple, caused by lathi except the injury No. 1 which was caused by a sharp weapon. The injured Gyanwati received three injuries and in the opinion of the doctor, injuries were simple in nature and it was opined that these injuries might have been caused by lathi and danda.
The case was investigated and charge sheet was filed under Sections 147, 148, 323/149, 324/149, 308/149, 434, 504, 506 I.P.C. Thereafter, the charges were framed under the aforesaid sections.
The accused were confronted under Section 313 Cr.P.C. and accused Deen Bandhu deposed before the court that the litigation was going on between the parties with respect to land and the quarrel took place out of this enmity. The accused have admitted that on the date of incident, Ramsharan, Arvind, Surendra and Harendra assaulted the accused Deen Bandhu. The accused Chandra Bali had taken plea of alibi and submitted that he was plying a truck on the said date. The accused Asharfi and Ram Asre has also admitted the fact that there was litigation between his brother Deen Bandhu and the complainant. The accused submitted that they were falsely implicated and pleaded not guilty and requested for trial.
The prosecution produced and examined P.W.-1 (Surendra Kumar), P.W. -2 (Harendra Kumar) and P.W. -3 (Swaminath Mishra), P.W.-4 (Dr. Phoolchandra Dubey), P.W. -5 (Ramsharan), P.W.-6 (Sonelal Verma) and P.W. -7 (Dr. Arvind Kumar Pathak). After examining the witnesses and adducing the evidences on record the trial court passed the judgment and order and the appellants were convicted and punished under section 147 I.P.C. sentenced to undergo one years rigorous imprisonment, under section 148 sentenced to undergo two years rigorous imprisonment, under section 323/149 IPC sentenced to undergo six months rigorous imprisonment, under section 324/149 IPC sentenced to undergo Two years rigorous imprisonment and under section 325/149 IPC sentenced to undergo four years rigorous imprisonment with the fine of Rs 1000 and in default of payment appellant shall further undergo Three months rigorous imprisonment. Hence, the present appeal.
Sri Mishra, counsel for the appellants has submitted that it is admitted case that there was a consolidation case pending between the parties. It has been submitted that quarrel started between the parties and in a spur of moment incident took place, otherwise there was no intention to cause injuries. He has submitted that though there are four injuries but almost all of them are simple in nature.
Learned counsel for the appellants does not want to press the appeal on merits. He has submitted that the incident took place in the year of 1999 i.e. way back 23 years approximately and submitted at the bar that there is no further criminal antecedents against the appellants and they may be extended the benefit of U.P. Probation of Offenders Act. He further submits that it is an old matter and the appellants may not be sent to jail. He submits that the appellants are ready to pay compensation to the complainant.
Learned A.G.A. has opposed the appeal and has submitted that there is no material irregularity or illegality committed by court below and keeping in view the evidence on record, accused-appellants have been rightly convicted.
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."
There is one central Legislation on the subject in the name of ''Probation of Offenders Act Act 1958', relevant Section 3 and 4 of 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."
There is one more legislation on the subject namely ''Uttar Pradesh First Offenders' Probation Act, 1938'. Section 3 and 4 of this 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.
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 transportation 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 cofused 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 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 ,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 of Cr.P.C. 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."
A Division Bench of the Allahabad High Court in State of Uttar Pradesh v. Misri Lal and others reported in 1982 CRI. L. J. 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 Cr.P.C. lays down that where in any case the Court could have dealt with an accused person under S.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."
Thus, provisions of U. P. Probation Of First Offenders' Act shall be followed, in the geographical area where that has been made applicable and not Section 360 of the Cr.P.C. 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 Cr.P.C.
Coming to the point of desirability of extending the benefit of Probation Act to the Accused/Revisionist in Sitaram Paswan and Anr v. State of Bihar, reported in 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."
In AIR 2017 SC page 660, Mohd. Hashim v. State of U.P and Ors. The 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."
The Court bears in mind that fact that the matter is old and the dispute arose between the parties due to a consolidation case pending between them and in a spur of moment the incident took place which was not planned or intentional. It is also pertinent to take into account the fact that more than 23 years have passed from the date of incident. It is also worth to be noticed that the complainant himself admitted that the quarrel took place out of litigation pending between them.
Therefore, on merits, so far as conviction part is concerned, I do not find any illegality, perversity or infirmity in the order passed by the court below, but keeping in view the discussion made above, the sentence inflicted on the appellants-accused requires modification.
The appeal is partly allowed with following modifications:-
The conviction of the accused-appellants by courts below is upheld. The sentence of appellants-accused is modified to tune that they are provided the benefit of Section 4 of the U.P. Probation of Offenders Act and they, namely, Chandra Bali (Appellant No. 4) and Phool Chandra (Appellant No. 5), are released on probation on the condition that they will keep peace and good conduct for two years from today and shall file two sureties to the tune of Rs. 40,000/- along with their personal bond before the court below and also an undertaking to the effect that they shall maintain peace and good behaviour during the period of two years from today. Both these appellants, will also deposit Rs.25,000/- each before the court below within two months from today and the court below will release the said amount equally in favour of P.W.-1 (Surendra Kumar), P.W. -2 (Harendra Kumar) and P.W. -5 (Ramsharan). In case P.W.-1 (Surendra Kumar), P.W. -2 (Harendra Kumar) and P.W. -5 (Ramsharan) are not alive, the said amount shall be released equally i.e. one-third to legal heirs of P.W.-1 (Surendra Kumar), one third to legal heirs of P.W. -2 (Harendra Kumar) and one-third to P.W. -5 (Ramsharan). In case of breach of any of the conditions mentioned above, is proved, the appellants will be subjected to undergo the sentence as directed by the court below. The bonds aforesaid will be filed by the appellant-accused within two months from today, before the court below.
A certified copy of the order be also sent to the court concerned for compliance. Let the lower court record be returned back to the court below.
Order Date :- 5.12.2022 Arun K. Singh