Radhey Shyam @ Ram Sewak Nai … v. State of U.P

Heard Sri Anurag Kumar Singh, learned counsel for the 1. appellants, and Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. as well as perused the record. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has 2. been filed by the appellants namely Radhey Shyam @ Ram Sewak Nai s/o Sri Gokaran Prasad and Rajesh @ Rajesh Rai s/o Sri Ram Ajore Rai challenging the judgment and order dated 15.01.2011 passed by the Additional Sessions Judge/Fast Track Court-V, Lucknow (in short "Trial Court") in Session Trial No. 1030 of 2003, arising out of Case Crime No. 108 of 1993, under Sections- 452, 336, 323 IPC and Section- 3(1)(10) SC/ST Act, P.S.- Talkarota, District- Lucknow thereby convicting and sentencing the appellants under Section 452 IPC for five years' imprisonment alongwith fine of Rs. 1,000/- and in default to pay the amount of fine further to undergo three month's imprisonment, under Section- 323 IPC for one year imprisonment and under Section 336 IPC for three months' imprisonment.

3. The case of the prosecution, as appears from the record, in nutshell, is to the effect that on 04.05.1993 at about 9.00 P.M., hot-talk took place between the parties in connection with throwing of garbage and thereafter an altercation again took place, in which the appellants 2 CRIMINAL APPEAL No. - 1027 of 2012 namely Radhey Shyam Srivastava and Rajesh assaulted the complainant namely Mewa Lal s/o Juravan with kicks and fists. The accused/appellants also assaulted one Ram Prasad, his wife and daughter/Km. Mithlesh. On the basis of written report (Ext.Ka.-1) of the incident made by 4. the complainant/Mewa Lal s/o Juravan, an FIR (Ext.Ka.-3) was registered on 04.05.1993 at about 23.45 hours as Case Crime No. 108 of 1993, under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and Section- 7 P.C.R. Act, P.S.- Talkarota, District- Lucknow against the accused-appellants, named above. It is to be noted that injured(s) namely Ram Prasad and Ramrati 5. were medically examined on 05.05.1993 at Balrampur Hospital, District- Lucknow by the doctor concerned and injury reports (Ext.Ka.-7 and Ext.Ka.-8) of these persons were prepared and the Investigating Officer (in short "IO") prepared the site plan (Ext.Ka.-5) and also recorded the statements of witnesses and upon completion of investigation, the IO filed the charge sheet (Ext.Ka.-6) against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and Section- 7 P.C.R. Act. After submission of charge sheet before Court of learned 6. Magistrate the said case was committed to the Court of Sessions where it was registered as S.T. No. 1030 of 2003 and charges were framed against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and the charge under Section- 7 P.C.R. Act was not framed against the accused-appellants. Subsequently on 05.01.2011 amended charges were framed against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act. The accused-appellants denied the charges and claimed trial. In order to substantiate its case, prosecution examined as may as 7. eight witnesses namely Ramrati (PW-1), Ram Prasad (PW-2), Mewa Lal (PW-3), Dr. P.V. Tripathi (PW-4), Mithlesh Kumari (PW-5), Head Constable Ramsurat Yadav (PW-6), Investigating Officer B.D. Arun (PW-7) and Dr. Abhimanyu Kumar (PW-8). That after closing of the evidence, statement of accused-appellants 8. under section 313 Cr.P.C. was recorded by the trial court explaining the entire 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.

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 accused- appellants have not been convicted previously for any offence and they 3 CRIMINAL APPEAL No. - 1027 of 2012 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 sentence.

12. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellants have not been convicted previously for any offence, 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 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-appellants 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 about 32 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellants of speedy trial and they may be given benefit of first offender and appellants may be extended the benefit of Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He further submitted that 4 CRIMINAL APPEAL No. - 1027 of 2012 appellants are 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 AGA appearing for the State does not dispute the fact that accused-appellants are the first time offender and were 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- appellants 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-appellants 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 appellants 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: "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 5 CRIMINAL APPEAL No. - 1027 of 2012 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:- "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."

Heard Sri Anurag Kumar Singh, learned counsel for the 1. appellants, and Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. as well as perused the record. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has 2. been filed by the appellants namely Radhey Shyam @ Ram Sewak Nai s/o Sri Gokaran Prasad and Rajesh @ Rajesh Rai s/o Sri Ram Ajore Rai challenging the judgment and order dated 15.01.2011 passed by the Additional Sessions Judge/Fast Track Court-V, Lucknow (in short "Trial Court") in Session Trial No. 1030 of 2003, arising out of Case Crime No. 108 of 1993, under Sections- 452, 336, 323 IPC and Section- 3(1)(10) SC/ST Act, P.S.- Talkarota, District- Lucknow thereby convicting and sentencing the appellants under Section 452 IPC for five years' imprisonment alongwith fine of Rs. 1,000/- and in default to pay the amount of fine further to undergo three month's imprisonment, under Section- 323 IPC for one year imprisonment and under Section 336 IPC for three months' imprisonment.

3. The case of the prosecution, as appears from the record, in nutshell, is to the effect that on 04.05.1993 at about 9.00 P.M., hot-talk took place between the parties in connection with throwing of garbage and thereafter an altercation again took place, in which the appellants 2 CRIMINAL APPEAL No. - 1027 of 2012 namely Radhey Shyam Srivastava and Rajesh assaulted the complainant namely Mewa Lal s/o Juravan with kicks and fists. The accused/appellants also assaulted one Ram Prasad, his wife and daughter/Km. Mithlesh. On the basis of written report (Ext.Ka.-1) of the incident made by 4. the complainant/Mewa Lal s/o Juravan, an FIR (Ext.Ka.-3) was registered on 04.05.1993 at about 23.45 hours as Case Crime No. 108 of 1993, under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and Section- 7 P.C.R. Act, P.S.- Talkarota, District- Lucknow against the accused-appellants, named above. It is to be noted that injured(s) namely Ram Prasad and Ramrati 5. were medically examined on 05.05.1993 at Balrampur Hospital, District- Lucknow by the doctor concerned and injury reports (Ext.Ka.-7 and Ext.Ka.-8) of these persons were prepared and the Investigating Officer (in short "IO") prepared the site plan (Ext.Ka.-5) and also recorded the statements of witnesses and upon completion of investigation, the IO filed the charge sheet (Ext.Ka.-6) against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and Section- 7 P.C.R. Act. After submission of charge sheet before Court of learned 6. Magistrate the said case was committed to the Court of Sessions where it was registered as S.T. No. 1030 of 2003 and charges were framed against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act and the charge under Section- 7 P.C.R. Act was not framed against the accused-appellants. Subsequently on 05.01.2011 amended charges were framed against the accused-appellants under Sections- 452, 336, 323 IPC, Section- 3(1)(10) SC/ST Act. The accused-appellants denied the charges and claimed trial. In order to substantiate its case, prosecution examined as may as 7. eight witnesses namely Ramrati (PW-1), Ram Prasad (PW-2), Mewa Lal (PW-3), Dr. P.V. Tripathi (PW-4), Mithlesh Kumari (PW-5), Head Constable Ramsurat Yadav (PW-6), Investigating Officer B.D. Arun (PW-7) and Dr. Abhimanyu Kumar (PW-8). That after closing of the evidence, statement of accused-appellants 8. under section 313 Cr.P.C. was recorded by the trial court explaining the entire 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.

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 accused- appellants have not been convicted previously for any offence and they 3 CRIMINAL APPEAL No. - 1027 of 2012 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 sentence.

12. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellants have not been convicted previously for any offence, 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 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-appellants 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 about 32 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellants of speedy trial and they may be given benefit of first offender and appellants may be extended the benefit of Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He further submitted that 4 CRIMINAL APPEAL No. - 1027 of 2012 appellants are 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 AGA appearing for the State does not dispute the fact that accused-appellants are the first time offender and were 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- appellants 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-appellants 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 appellants 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: "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 5 CRIMINAL APPEAL No. - 1027 of 2012 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:- "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."