Hon'ble the Supreme Court in the case of Mohd. Hashim vs Learned counsel for the appellants further submitted that he

Judgment

1. Heard learned counsel for the appellant no.1 Shri Lalit Kishore Pandey and learned A.G.A. for the State and perused the record.

2. The instant Criminal Appeal under Section 374 (2), Cr.P.C. read with Section 389 Cr.P.C. has been filed by the appellants against the judgment and order 08.05.2009 passed by the Additional Session Judge/Special Judge E.C. Act, Faizabad (now Ayodhya), in Session Trial No. 330 of 2000, arising out of Crime No. 97 of 1998, P.S. Khandasa, District Faizabad, convicting and sentencing the appellants to undergo one year rigorous imprisonment and to pay fine of Rs.200/- under Sections 323/34 IPC, with default stipulation.

3. Upon due consideration of Letter Dated 11.08.2025 of Chief Judicial Magistrate, Ayodhya as also the documents annexed with the same including death certificate of accused-appellant no.2/Ram Khelawan, the present appeal so far as it relates to the appellant no.2 is dismissed as abated.

4. According to the case of prosecution, the accused-appellant no.1/Khaderu S/o Sarjoo Yadav and the accused-appellant no.2/Ram Khelawan S/o Bhagwan Deen (since died) assaulted the informant/Ram Harakh Yadav. Shiv Maghan S/o Bhushu hurled abuses and assaulted Khelawan S/o Bhagwandeen on

26.05.1998. On hearing the outcry of the informant, Jagdish Page No.2 of 22 Pradhan as also daughter and wife of the informant namely Kabutari and Rajpata, respectively, etc. and thus rushed to the spot and interfered in the matter. The daughter and wife of the informant also sustained injuries. On the basis of written

complaint (Ex.Ka.8), the FIR (Ex.Ka.2) was lodged on

26.05.1998 as Case Crime No. 97/1998, under Sections 307, 323, IPC at Police Station - Khandasa, District - Faizabad. The letter (Ex.Ka.4) regarding medical examination of the injured was prepared and thereafter, the injured Khelawan was examined and the doctor concerned prepared the injury report (Ex.Ka.7). The Investigating Officer (in short 'I.O.')prepared the side plan (Ex.Ka.6) and also prepared the recovery memo with regard to blood stained earth and plain earth (Ex.Ka.5).

5. On completion of investigation, the charge-sheet no. 66/1998 dated 20.08.1998 against the accused-appellants and another charge-sheet no. 66/2003 dated 25.09.2003 was submitted against co-accused Shiv Magan.

6. After submission of charge-sheet(s) the case was committed to Court of Sessions where it was registered as Session Trial No. 330 of 2000 (Supra) and the trial Court framed the charges against the accused to which they denied and claimed trial.

7. In order to substantiate its case, prosecution examined as many as 6 witnesses namely daughter of informant/Kabutara Devi (P.W.1), injured-Ram Kewal (P.W.2), Rajpata (P.W.3), Dr. K.B. Singh (P.W.4), who also proved the prosecution case as indicated in the FIR and proved the injury report according to which Ram Kewal sustained fourteen injuries. Constable Mohrir Ram Karan Saroj (P.W.5) and Ram kinker/scribe of report (P.W.6) were also examined to prove other documentary evidence submitted by I.O..

8. That after closing of the evidence, statements of accused/ appellants were recorded by the trial court explaining the entire Page No.3 of 22 evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

9. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as documentary, found the accused/appellants guilty and convicted them, as above and acquitted Shiv Magan.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellants have preferred the present appeal.

11. Learned counsel for the appellants submits that the appellant no.1 has not been convicted previously for any offence and they are the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of conviction and sentence for the offense under Section 323/34 IPC.

12. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellant no.1 has not been convicted previously for any offense, the trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

13. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. 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 Act, 1958.

14. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious Page No.4 of 22 illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

15. 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, 1958.

16. The accused- appellant no.1 has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 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, 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 learned Trial Court should have recorded reasons for the same.

17. Learned counsel for the appellants submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

18. Learned counsel for the appellants further submitted that he does not want to press the appeal on merits. He has submitted that the incident took place 27 years ago and there is no further criminal antecedent of the appellant. The delay in trial deprives the right of the appellants of speedy trial and he may be given benefit of first offender and appellants may be extended the Page No.5 of 22 benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellant no.1 is first time offender and is not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellant.

19. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellants have been rightly convicted.

20. Learned A.G.A. appearing for the State does not dispute the fact that accused- appellant no.1 is the first time offender and was not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused- appellant no.1 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.

21. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused- appellant no.1 on certain stipulations as specified in Section 4 of the Act of 1958.

22. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that except apart the merits of the case, so far as the prayer of learned counsel for the appellant no.1 for providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

23. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: Page No.6 of 22 "3. Power of court to release certain offenders after admonition.- "Where 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.

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."

24. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- Page No.7 of 22 "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."

25. Further, the Hon'ble Supreme Court in the case of Ved Prakash

complaint (Ex.Ka.8), the FIR (Ex.Ka.2) was lodged on

26.05.1998 as Case Crime No. 97/1998, under Sections 307, 323, IPC at Police Station - Khandasa, District - Faizabad. The letter (Ex.Ka.4) regarding medical examination of the injured was prepared and thereafter, the injured Khelawan was examined and the doctor concerned prepared the injury report (Ex.Ka.7). The Investigating Officer (in short 'I.O.')prepared the side plan (Ex.Ka.6) and also prepared the recovery memo with regard to blood stained earth and plain earth (Ex.Ka.5).

5. On completion of investigation, the charge-sheet no. 66/1998 dated 20.08.1998 against the accused-appellants and another charge-sheet no. 66/2003 dated 25.09.2003 was submitted against co-accused Shiv Magan.

6. After submission of charge-sheet(s) the case was committed to Court of Sessions where it was registered as Session Trial No. 330 of 2000 (Supra) and the trial Court framed the charges against the accused to which they denied and claimed trial.

7. In order to substantiate its case, prosecution examined as many as 6 witnesses namely daughter of informant/Kabutara Devi (P.W.1), injured-Ram Kewal (P.W.2), Rajpata (P.W.3), Dr. K.B. Singh (P.W.4), who also proved the prosecution case as indicated in the FIR and proved the injury report according to which Ram Kewal sustained fourteen injuries. Constable Mohrir Ram Karan Saroj (P.W.5) and Ram kinker/scribe of report (P.W.6) were also examined to prove other documentary evidence submitted by I.O..

8. That after closing of the evidence, statements of accused/ appellants were recorded by the trial court explaining the entire Page No.3 of 22 evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

9. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as documentary, found the accused/appellants guilty and convicted them, as above and acquitted Shiv Magan.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellants have preferred the present appeal.

11. Learned counsel for the appellants submits that the appellant no.1 has not been convicted previously for any offence and they are the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of conviction and sentence for the offense under Section 323/34 IPC.

12. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellant no.1 has not been convicted previously for any offense, the trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

13. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. 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 Act, 1958.

14. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious Page No.4 of 22 illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

15. 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, 1958.

16. The accused- appellant no.1 has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 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, 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 learned Trial Court should have recorded reasons for the same.

17. Learned counsel for the appellants submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

18. Learned counsel for the appellants further submitted that he does not want to press the appeal on merits. He has submitted that the incident took place 27 years ago and there is no further criminal antecedent of the appellant. The delay in trial deprives the right of the appellants of speedy trial and he may be given benefit of first offender and appellants may be extended the Page No.5 of 22 benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellant no.1 is first time offender and is not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellant.

19. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellants have been rightly convicted.

20. Learned A.G.A. appearing for the State does not dispute the fact that accused- appellant no.1 is the first time offender and was not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused- appellant no.1 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.

21. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused- appellant no.1 on certain stipulations as specified in Section 4 of the Act of 1958.

22. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that except apart the merits of the case, so far as the prayer of learned counsel for the appellant no.1 for providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

23. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: Page No.6 of 22 "3. Power of court to release certain offenders after admonition.- "Where 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.

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."

24. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- Page No.7 of 22 "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."

25. Further, the Hon'ble Supreme Court in the case of Ved Prakash