Mata Badal and Others v. State of U.P

Court No. - 15 Case :- CRIMINAL REVISION No. - 262 of 2012 Revisionist :- Mata Badal And Others Opposite Party :- State of U.P. Counsel for Revisionist :- Anil Kumar Tiwari,Balram Yadav,Yogesh Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Karunesh Singh Pawar,J.

¶1Heard learned counsel for the revisionists who has filed an application for exemption from appearance of revisionist No.1 Mata Badal today in court which is taken on record and keeping in view that cause shown in the affidavit filed in support of the application seems to be sufficient, the application is allowed and presence of revisionist No.1 is exempted, Mr. Jayant Singh Tomar, learned A.G.A. assisted by Mr. Ayush Sharma, State Law Officer, and perused the record.

¶2Present criminal revision has been filed against the judgment and order dated 27.7.2012, passed by Additional Sessions Judge, Court No.2, Faizabad in Criminal Appeal No.188 of 2010 whereby he dismissed the appeal filed against the judgment of conviction and order of sentence dated 25.8.2010 passed by Addl. Chief Judicial Magistrate-III, Faizabad whereby the revisionists have been convicted and sentenced under section 323 I.P.C. for six months simple imprisonment with fine of Rs.500/- and under section 325 I.P.C. for 1 1/2 years S.I. with fine of Rs.500/- with default provision.

¶3Prosecution case is that the complainant Bhagdei has given an application to the Senior Superintendent of Police, Faizabad against Mata Badal, Kali Prasad, Kesari Prasad, Chander and Indrapal to the effect that she and the accused persons are the resident of village Majnai Pure Baldi. On the sahan land on eastern side of the complainant, agricultural work is conducted. The accused No.1 Mata Badal was having an ill intent on the land of the complainant and wanted to forcibly possess the land by putting a Chhappar upon it. An application dated 24.6.1992 was given to the police by the son of the complainant Ram Newal, upon which compromise was entered between the parties, however, in spite of the compromise so entered, the accused No.1 again threatened to put chhappar upon the land. The complainant gave an application dated 30.6.1992 to the District Magistrate, Faizabad but no action has been taken thereon. On 4.7.1992, while the complainant went outside her home, she saw that Mata Badal along with his sons Kali Prasad, Keshari Prasad and Shatruhan were digging the plinth on the sahan land of the complainant and Chander and Indra Pal armed with Lathi were standing. When the complainant wanted to stop them, they stopped digging and chased the complainant with lathi. To save her life, the complainant after raising alarm ran towards the house. After hearing alarm, the daughters of the complainant Jagwanta and daughter in law Josa came out. By that time, Mata Badal and his two sons Kali Prasad and Keshari Prasad started beating the complainant and other two ladies. On hearing the hue and cry of the complainant and two other ladies, Ram Newal, Jaipal and Gurudeen came running. The accused persons 4 and 5 have exhorted and threatened them. When Ram Newal tried to save her mother complainant, he was beaten by Keshari Prasad with lathi. The accused persons while exhorting ran away. The complainant's right hand became injured and she suffered a fracture. A chick first information report was registered as case crime No.188 of 1992 under sections 147, 323, 325, 504 506 I.P.C.. The investigating officer conducted investigation, prepared site plan and also took Bhagdei for medical examination as well as X-ray. Statement of the prosecution witnesses has been taken under section 161 CrPC. Charge sheet was filed under sections 147, 323, 325, 504, 506 I.P.C.. After taking cognizance, the accused persons were summoned. Charges were framed for the offence under sections 147, 323, 325, 504, 506 I.P.C.. The accused persons denied the charges and claimed to be tried.

¶4The prosecution in support of its case has produced P.W.1 Bhagdei, P.W. 2 Ram Newal, P.W.3 Smt. Jagpata, P.W.4 Jaso, P.W.5 Dr. V. Bhatia, P.W.6 C.P. Pandey and P.W.7 Sriram Mishra. Statement of the accused was recorded under section 313 CrPC, who had pleaded that he has been falsely implicated and his case is of denial. Learned Magistrate while giving benefit of doubt has acquitted the accused persons under sections 147, 504, 506 I.P.C. and the accused persons Ramchandra, Indrapal and Shatrughn have been acquitted under sections 323, 325 I.P.C. However, the accused Matabadal, Keshari Prasad and Kali Prasad, i.e. the revisionists have been convicted under sections 323, 325 I.P.C. and consequently, the judgment of conviction was passed by the learned Magistrate and the appeal preferred against the said judgment has been dismissed, affirming the judgment rendered by the learned Magistrate.

5.After going through the entire evidence adduced by the prosecution as well as the argument advanced, this Court comes to the conclusion that the prosecution has proved its case beyond reasonable doubt against the revisionists for the offences under sections 323, 325 I.P.C.. There is no illegality in the impugned judgment.

6.At the outset, learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission only with respect to the order of sentence. Revisionists' counsel submits that the revisionists are not a previous convict. It is submitted that the revisionists are the first offender and they may be given the benefit of provisions of the Probation of Offenders Act, 1958 (in short, 1958 Act). He further submits that in view of the 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 the Probation of Offenders Act, 1958. 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 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 1958 Act. Learned counsel for the accused-revisionists submits that to that extent, the impugned judgment and order suffers from serious illegality and therefore, it cannot be sustained.

¶7The accused-revisionists have 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 Section 4 of the Act. 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.

¶8Learned AGA appearing for the State does not dispute the application of the provisions of Section 4 of the 1958 Act, as in view of the provisions of the said Act, power can be exercised, while if a person is found guilty of committing an offence not punishable with death or imprisonment for life and with regard to the facts and circumstances of the case, like nature of the case and character of the offender, the revisionist/accused can be given benefit of the said provision. He also does not dispute the fact that accused-revisionists are the first time offender and were not previously convicted in any other case.

¶9I have considered the submission advanced by learned counsel for the parties.

¶10In order to appreciate the argument advanced by the learned counsel for the parties, the provision of Section 4 of the 1958 Act is required to be appreciated with,which is quoted hereinbelow: "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."

11.From perusal of the aforesaid provision, it is clear that the power is there with the Court to release a person on a bond of good conduct by extending the benefit of Section 4 of 1958 Act, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but, at the same time, the Court will extend the benefit so provided under Section 4 of the Act, 1958 having due regard to the nature of the offence and the character of the offender.

12.In Commandant, 20th Battalion, ITB Police versus Sanjay Binjola 2001 SCC (Cri)897, the Supreme court has held in para 7 as under : "7. Probation of Offencers Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act." The Supreme Court in Paul George versus State of NCT of Delhi 2008 SCC (Cri) 768 (para 12) has held as under : "12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the Trial Court. The appeal is disposed of in the above terms."

13.. From the perusal of the impugned judgment(s), it is clear that none of the Sections in which the revisionist/ accused was convicted, entail the punishment of death or imprisonment for life. So, the nature of the offences is such, where this Court can give the benefit of the 1958 Act to the revisionist/accused.

14.In addition to the above, there is other circumstance which would warrant the application of Section 4 of the Probation of Offenders Act, 1958 to the facts of the case, i.e. the pendency of the criminal trial, appeal and revision against the revisionist/accused since more than a decade and he has undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the revisionist/ accused has no criminal antecedents and even prior and after the aforesaid crime, this is an only offence which has so far been registered against the revisionist/accused.

15.In this view of the fact, this Court is of the opinion that there is no useful purpose for sending the revisionist/accused to jail for serving the sentence awarded by the Court below.

¶16In view of the above, the criminal revision is partly allowed. Judgment and order passed by learned trial court and learned appellate court are hereby affirmed. The conviction as recorded by the learned trial court and learned appellate trial court shall remain intact. However, so far as the sentence part is concerned, it is directed that the revisionists/accused Mata Badal, Keshri Prasad and Kali Prasad be released on probation for a period of one year on furnishing a personal bond with two sureties to the satisfaction of the concerned trial court. The fine imposed by the trial court shall be deposited by the revisionists/accused within a period of one month, if not already deposited, from the date of receipt of this order, with the Court concerned. The concerned Magistrate shall be at liberty to impose such condition(s) while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/revisionists fail to observe good conduct and behaviour during probation, or is found violating any condition to be imposed, the Court concerned shall be at liberty to cancel the bond of good conduct calling the accused/revisionist to serve out the sentence awarded by the Courts below. The revisionists shall be released on probation immediately once he executes the bond of good conduct before the court concerned as directed above.

¶17Let a copy of this judgment, along with the LCR, if received, be sent forthwith to the learned trial court for information/compliance. Order Date :- 4.4.2024 kkb/ High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench