Ram Asrey Pal and Ors v. State of U.P

Court No. - 15 Case :- CRIMINAL REVISION No. - 333 of 2012 Revisionist :- Ram Asrey Pal, Shatruhan Pal, Ram Manohar Pal, Ram Chandra Pal and Shesh Ram Pal Opposite Party :- State of U.P. Counsel for Revisionist :- Satyendra Kumar Singh,Abhishek Misra,Arun Kumar Singh,N N Jaiswal,Prashant Jaiswal Counsel for Opposite Party :- Govt. Advocate Hon'ble Karunesh Singh Pawar,J.

¶1Heard learned counsel for the revisionists as well as Shri Jayant Singh Tomar, learned AGA, assisted by Mr. Ayush Mishra, State Law Officer, and perused the record.

¶2Present criminal revision has been filed against the judgment and order dated 20.09.2012, passed by Additional Sessions Judge, Court No.9, Lucknow in Criminal Appeal No. 60 of 2011 (Ram Chandra Pal and others Vs. State of U.P.), as well as the judgment and order dated 03.03.2011 passed by Special Chief Judicial Magistrate (Custom), Lucknow in criminal case No. 3048/2004 "State Vs. Ram Chandra Pal and others" arising out of case crime No. 237/2004, under sections 147/148/452/427/323/149 I.P.C., P.S. Mohanlalganj, District Lucknow, whereby the revisionists have been convicted and sentenced under section 147 IPC for six months with a fine of Rs. 500/- and under section 323/149 I.P.C. for six months with a fine of Rs. 500/- with default provision.

¶3At the outset, learned counsel for the revisionists 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.

¶4During pendency of the revision, the revision qua revisionist no. 1 Ram Asrey Pal has been dismissed as abated vide order dated 02.04.2024.

¶5Prosecution case is that on 08.08.2004 at about 21:45 hours, the complainant Smt. Guddan gave a written report to police chowki SGPGI, P.S. Mohanlalganj, stating that she along with her husband Kanhai and children has been residing in the temple of Ram Chandra Pal and about 7:00 pm while she was sitting, Ram Chandra Pal, Ram Asre Pal, Shatruhan Pal, Ram Manohar and Shesh Ram along with some persons came armed with lathi and danda and started beating her. They broke utensils, television and cooking gas. In the meantime, when the police came, one of the accused fired in the air. She suffered injuries in the incident. The alleged incident took place due to construction which was going on inside the boundary of the temple. It has been further alleged that eight years ago Ram Chandra took Rs. 40000/- for providing land to the complainant, however, till date, neither she has been provided land nor money has been returned. The case was registered on the said written report as case crime No. 237/2004, under Section 147/148/452/323/427 IPC, P.S. Mohanlalganj, District Lucknow and after investigation, charge sheet was filed against them under Section 147/148/452/323/427 IPC. Charges were framed against the accused persons in the aforesaid sections. The accused denied the charges and claimed to be tried.

¶6The prosecution in order to prove its case has produced PW-1 Smt Guddan, PW-2 Umanath Tiwari, Sub Inspector and PW-3 Dilip Kumar Srivastava, Pharmacist. Ram Achal Yadav has been summoned as the independent witness who died during trial. Statement of the accused was recorded under Section 313 Cr.P.C. wherein they denied the prosecution case.

¶7PW-1 who is the injured had given written report to SGPGI chowki, P.S. Mohanlalganj whereupon FIR was registered at 21:45 hours. No delay has been committed by the complainant in lodging FIR. On the basis of GD of the police, on the second day, the complainant was medically examined wherein injuries were found on the body one day old. The injuries have been proved by the pharmacist Dilip Kumar Srivastava. The accused persons have not made any cross-examination of PW-3.

¶8The prosecution has been successful in proving its case beyond reasonable doubt and accordingly, the learned Magistrate has found that the offences under Section 147/323/149 IPC were found to be proved against the accused persons. They have been acquitted of the offences under Section 148/427/452 IPC vide judgment and order dated

03.03.2011. Appeal filed against the order dated 03.03.2011 has been dismissed vide order dated 20.09.2012 as the Appellate Court has not found any illegality in the order passed by the judicial magistrate.

¶9After 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. There is no illegality in the impugned judgment.

¶10Revisionist's 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 1958 Act. 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. The accused-revisionists have statutory right for claiming the benefit of beneficial legislation i.e. the provisions of 1958 Act and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Section 4 of 1958 Act. If the provisions of Section 360 Cr.P.C. or provisions of 1958 Act were not applied, then the learned Trial Court should have recorded reasons for the same.

¶11Learned AGA appearing for the State does not dispute the application of the provisions of Section 4 of 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 revisionists/accused can be given benefit of the said provision. He also does not dispute the fact that the accused-revisionists are the first time offender and were not previously convicted in any other case.

¶12I have considered the submission advanced by learned counsel for the parties.

¶13In order to appreciate the argument advanced by the learned counsel for the parties, the provision of Section 4 of 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."

¶14From 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 1958 Act having due regard to the nature of the offence and the character of the offender.

¶15In 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:

¶12This 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."

¶16From the perusal of the impugned judgment(s), it is clear that none of the Sections in which the revisionists/accused were convicted, entail the punishment of death or imprisonment for life. So, the nature of the offences are such, where this Court can give the benefit of 1958 Act to the revisionists/accused.

¶17In 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 revisionists/accused for more than a decade and they have undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the revisionists/accused have no criminal antecedents and even prior and after the aforesaid crime, this is the only offence which has so far been registered against the revisionists/accused.

¶18In this view of the fact, this Court is of the opinion that there is no useful purpose for sending the revisionists/accused to jail for serving the sentence awarded by the Court below.

¶19In view of the above, the criminal revision is partly allowed. Judgment and orders passed by learned trial court to the extent it convicts the revisionists, and learned appellate court are hereby affirmed. The judgment of conviction as recorded by the learned trial court and learned appellate court shall remain intact. However, so far as the sentence part is concerned, it is directed. that the revisionists/accused shall 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 they feel fit in accordance with the law. It goes without saying that if accused/revisionists fail to observe good conduct and behaviour during probation, or are found violating any condition to be imposed, the Court concerned shall be at liberty to cancel the bond of good conduct calling the accused/revisionists to serve out the sentence awarded by the Courts below. The revisionists shall be released on probation immediately once they execute the bond of good conduct before the court concerned as directed above.

¶20Let 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/R.C. High Court of Judicature at Allahabad, Lucknow Bench