Allahabad High Court
Munna @ Jabir vs State Of U.P. on 12 May, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- CRIMINAL APPEAL No. - 708 of 2013 Appellant :- Munna @ Jabir Respondent :- State of U.P. Counsel for Appellant :- Arjun Singh Somvanshi,Prem Prakash Singh Counsel for Respondent :- Govt. Advocate Hon'ble Rajeev Singh,J.
The present appeal has been preferred against the judgment and order dated 24.04.2013 passed by the Additional District & Sessions Judge, Court No. 5, Hardoi in Session Trial No. 304 of 2012 (State Vs. Munna @ Jabir) convicting and sentencing the accused-appellant under Sections 452 I.P.C. for a period of one year R.I. with fine of Rs.1,000/-, in default of which, additional simple imprisonment of one month. The appellant was also convicted and sentenced under Section 354 I.P.C. for a period of one year R.I. with fine of Rs.2,000/-, in default of which, additional simple imprisonment of one month.
Learned counsel for the accused-appellant submits that appellant has not been convicted previously for any offence and he is the first time offender. Learned counsel for the accused-appellant, at the outset, submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.
In view of the aforesaid submission of learned counsel for the accused-appellant, the appeal is dismissed so far as it relates to the impugned judgment and order of conviction passed by the court below. The judgment and order of conviction passed by the court below dated 24.04.2013 is hereby, upheld.
Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances including the fact that the appellant has not been convicted previously for any offence, the trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'). It is further submitted that the court below neither invoked the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C., while sentencing the accused-appellant. The court below has also 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 Act, 1958.
Section 361 of the Code is required to be applied with or without the beneficial provisions, i.e., Section 360 of the Code or the 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, 1958.
The accused-appellant has statutory right for claiming the benefit of beneficial legislation, i.e., the provisions of the Act, 1958 and the court below was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958, as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the court below should have recorded reasons for the same. It is, thus, submitted that to that extent, the impugned judgment and order suffers from serious illegality being violative of the provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.
Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is the first time offender and was not previously convicted in any other case. He also submits that in view of the express provisions of Section 361 Cr.P.C., considering the facts and circumstances; nature of the offence; the character of the appellant, and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.
I have considered the arguments advanced by the learned counsel for the appellant as well as learned A.G.A. and gone through the record.
Section 3 of the Act, 1958 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, 1958 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."
Thus, the philosophy of the Probation of Offenders 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, 1958, has observed in para no.4, which reads 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."
Discussing the object, reason as well as applicability of Probation of Offender Act, 1958, in Uttar Pradesh, this Court in Uma Shanker and others Vs. State of U.P., (2016) (94) ACC 208, 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."
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 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."
According to learned counsel for the appellant, the appellant has no criminal history. Learned A.G.A. has also not placed any material before this Court regarding previous conviction of the appellant. It is evident from the record that the appellant remained in jail since 07.07.2011 to 04.10.2011 during trial and he is in jail since 02.04.2022, i.e., he served out a total period of 5 months in jail. 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 legislature for reformation of accused, who is first time offender as well as young person at the time of occurrence.
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/appellant.
Accordingly, the appellant is granted the benefit of Section 4 of the Act, 1958. The appellant, who is in jail, be released on probation forthwith. The appellant shall file personal bonds to the tune of Rs.20,000/- and he shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year. In case of breach of any such condition, the accused-appellant will subject himself to undergo the sentences before the trial court as per law. The accused-appellant shall file the bonds within a period of one month from today before trial court.
With the above observations and directions, the appeal is finally disposed off.
Let the copy of this judgment as well as the record be transmitted to the concerned trial court for necessary compliance, forthwith.
Order Date :- 12.5.2022/VKS