Document Fragment View
Fragment Information
Showing contexts for: section 361 in State Of U.P. vs Misri Lal And Ors. on 15 March, 1982Matching Fragments
1. Both these appeals are directed against the order dated 2-2-1976 passed by the Ist Additional Sessions Judge, Etawah in S. T. No. A 234 of 1975. Misri Lal, Mahesh Chand, Sadhu Singh and Lalloo Singh were convicted under Section 304, Part II I.P.C. and given benefit of Section 4 of the U.P. First Offenders Probation Act in view of the provisions of Section 361 of the Criminal P. C, 1973.
2. The occurrence took place on 7-11-1972 at about 1 P. M. within the limits of Nagla Bhawan, hamlet of Pali Khurd, police station Bhartana, District Etawah some cattle belonging to Misri Lal, Mahesh Chand, Sadhu Singh, sons of Jahar Singh. D. W. 4 and Lalloo Singh, son of Johari Singh, residents of Nagla Ajai, hamlet of village. Bhanpur, police station Bhartana, district Etawah, were grazing the Laha field of Man Singh, uncle of Amar Singh, P. W. 2, native of Pali Khurd. Man Singh and Amar Singh were harvesting bajra crop from their field just to the north of the field having Laha. On seeing that the cattle were grazing recently sown Laha crop, they came up and drove the cattle towards south. They reached in the field of Sadan Singh where Misri Lal, Mahesh Chand, Sadhu Singh and Lalloo Singh were relaxing. These 4 parsons had lathis. Instead of taking away their cattle they assaulted Man Singh and Amar Singh with lathis because they were carrying the cattle towards the pound. Thereafter they took away their cattle. It is apparent that the marpeet took place in the field of Sadan Singh. As a result of the injuries sustained Man Singh became unconscious. He was taken to his house on a cot. Amar Singh wrote a report at his house. Then he Proceeded to the police station along with injured unconscious Man Singh. On reaching police station which is 3 or 4 miles away at 4-15 P. M. Amar Singh lodged his report. The police then sent both the injured to Bhartana hospital for the examination of their injuries.
25. For what has been discussed above Sri P.C. Chaturvedi has rightly contended that the appellants could be convicted under Sections 325/34 I.P.C. and not under Sections 304 Part 11/34 I.P.C.
26. The learned Additional Sessions Judge has given benefit of Section 4 of the U.P. First Offenders' Probation Act, 1938 in view of the provisions of Section 361 of the Criminal P. C, 1973. On an examination of the relevant provisions of the Code, we are of the opinion that the learned trial judge has committed no error in giving benefit of Section 4 of the U.P. First Offenders' probation Act, 1938 to the appellants. Section 360(1) of the Code lays down that when any person under 2l years of age is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against him, the Court, regard being had to the age, character, 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" 3 years) as the Court may direct and in the meantime to keep the peace and be of good behaviour. The application of Section 360 in U.P. 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 U.P. 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 Section 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.
27. Section 361 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 judgment the special reasons for not having done so.
30. The learned trial Judge observed: "In view of the provisions of Section 361 Cr. P.C. which makes it obligatory for the court to extend the benefit of the Probation Act, unless there is reason not to extend the said benefit, the accused persons deserved to be granted the benefit of Section 4 of the U.P. First Offenders Probation Act because there is nothing on record which may go to show that the accused have been previously convicted or even tried for any other offence. The present occurrence took place suddenly when the cattle of the accused were driven away by the side of the complainant. The accused persons are, therefore, allowed the benefit of Section 4 of the U.P. First Offenders' Probation Act.