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Mullhu vs State Of U.P. on 23 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 13

Case :- CRIMINAL REVISION No. – 277 of 2009

Revisionist :- Mullhu

Opposite Party :- State Of U.P.

Counsel for Revisionist :- Surya Bux Singh,R.L. Yadav,Shiv Kumar

Counsel for Opposite Party :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present revision has been preferred against judgment order dated 15/18.5.2009, passed by the Additional Sessions Judge/ FTC-Ist, Unnao in Sessions Trial No.443/2007 thereby convicting and sentencing the revisionist under Section 354 IPC for three months’ rigorous imprisonment.

2. Learned counsel for the accused-revisionist submits that the accused-revisionist has not been convicted previously for any offence and they are the first time offenders. The learned counsel at the outset submits that he is not challenging the impugned order, confirming the order passed by the trial Court, but he is confining his submission only with respect to the order of sentence passed by the learned trial Court.

3. Learned counsel for accused-revisionist submits that in view of the aforesaid facts and circumstances, including the fact that the accused-revisionists have not been convicted previously for any offence, the trial court ought to have invoked the provisions of SectionThe Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

4. 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-revisionists. The Trial Court has not given any special reason in the order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

5. Learned counsel for the accused-revisionist submits that to that extent, the order passed by the learned trial Court suffers from serious illegality being violative of provisions of Sectionsection 361 Cr.P.C. and, therefore, it cannot be sustained.

6. Section 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.

7. The accused-revisionist has 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 Sections 3 or 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.

8. Learned AGA appearing for the State does not dispute the fact that accused-revisionist 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 accused-revisionist and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act can be granted in this case.

9. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this revision is, accordingly, dismissed by upholding the conviction of the accused-revisionist. However, he is granted the benefit of Section 4 of the Act. The accused-revisionist is released on probation. Accused-revisionist shall file personal bond 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. The accused-revisionist shall file the bonds within a period of one month from today. As provided under Section 5 of the Act, the revisionist is also directed to contribute a sum of Rs.11000/- in the Army Battle Casulty Welfare Fund, Army H.Q, New Delhi and will produce the receipt of deposit of the said amount before the trial court within four weeks.

10. In case of breach of any of the said condition, the accused-revisionist will subject himself to undergo the sentence.

11. Let the copy of this judgment as well as the lower court record, if received, be transmitted to the concerned Trial Court forthwith for necessary compliance. Lower court record has been summoned. The same shall be sent back to the concerned trial court forthwith.

12. With the aforesaid observations, the instant Criminal Revision is disposed of.

Order Date :- 23.9.2019

mks

 

 

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