Opposite Party(s) v. Counsel for Revisionist(s) Counsel for Opposite Party(s)

Judgment

1. Heard Sri Afzal Hasan, learned counsel for the revisionist, Shri Ajay Kumar Srivastava, learned A.G.A. for the State of U.P. and Sri Pt. Devesh Kumar Mishra, Advocate, who appeared fro the complainant/opposite party No. 2 as well as perused the record.

2. This revision has been filed challenging the judgment and order dated 25.08.2018 passed by the Chief Judicial Magistrate, Shravasti (in short "trial Court")in Complaint Case No. 607/2007 (Gulam Husain Gaus vs. Mohd. Rasheed), under Sections- 420, 465, 471, 506 IPC, Police Station- Gilaula, District- Shravasti, whereby, the revisionist has been convicted under Section 420 IPC to undergo five years' simple imprisonment alongwith fine of Rs. 5000/- and in default of payment of fine further to undergo six months' additional simple imprisonment, under Section 465 IPC to undergo two years' simple imprisonment alongwith fine of Rs. 2000/- and in default of payment of fine further to undergo two months' simple imprisonment and under Section 471 IPC to 2 CRLR No. 1512 of 2024 pay fine of Rs. 1000/- and in default of payment of fine further to undergo one month's simple imprisonment and all the sentences were ordered to run concurrently, as well as the order dated 03.10.2022 passed by the Sessions Judge, Shravasti (in short "appellate Court"), whereby, the Criminal Appeal No. 6/2018 filed by the revisionist against the order dated 25.08.2018 has been rejected.

3. The case of prosecution, based upon the written report dated

16.04.2006 registered as Case Crime No. 425/2006, under Sections- 465, 471, 420, 506 IPC, Police Station- Gilaula, District- Shravasti moved by the complainant/opposite party No. 2/Gulam Husain Gaus s/o Riyasat r/o Gilaula, Police Station- Gilaula, District- Shravasti, in nutshell, is to the effect that accused-revisionist/Mohd. Rasheed s/o Niyamat r/o Gilaula, Police Station- Gilaula, District- Shravasti prepared a forged 'Will' dated

03.01.1997 and obtained order from the court of Consolidation Officer, Ikauna (in short "C.O.") and when he tried took possession over the property in dispute of Riyasat, father of the opposite party No. 2, Gulam Husain Gaus, who at the relevant point of time was 10 years old, filed an application before the C.O. and after considering the allegations/contents of this application, the C.O. vide order dated 07.11.2002 recalled the order dated 13.06.2002, which was passed based upon the 'Will' dated

03.01.1997, and also protected the interest of the opposite party No. 2.

The order dated 07.11.2002 passed by the C.O. was challenged by the accused-revisionist by means an appeal, which was dismissed by the Settlement Officer of Consolidation concerned (in short "S.O.C.") vide order dated 27.11.2003, and the same was challenged by the accused- revisionist by means of a revision before the Deputy Director of Consolidation concerned (in short "D.D.C."). The D.D.C. dismissed the revision vide order dated 14.11.2003 and also directed to lodge First Information Report (FIR) against the accused-revisionist under the relevant sections.

5. After the aforesaid, final report dated 20.09.2016 was submitted in the matter and the same was challenged by filing a protest petition/application, which was allowed vide order dated 09.07.2007 and 3 CRLR No. 1512 of 2024 the final report was set-aside and the accused-revisionist was summoned under Sections- 420, 465, 471, 506 IPC to face the trial.

6. Thereafter court concerned recorded the statements of other witnesses namely Gulam Gaus (PW-1), Malik (PW-2) and Sabar Ali (PW-3) and also the statement of accused-revisionist.

7. After considering the statements of accused-revisionist and also the statements of witnesses of prosecution namely Gulam Gaus (PW-1), Malik (PW-2) and Sabar Ali (PW-3), the charges were framed against the accused-revisionist under Sections 420, 465, 471, 506 IPC on

16.11.2010. The accused-revisionist denied the charges and claimed trial.

8. Thereafter, other witnesses of prosecution, named above, and also the accused-revisionist were examined.

9. The trial court thereafter based upon the evidence on record i.e. oral and documentary including the orders passed by the consolidation/revenue authorities concerned, passed the judgment and order of conviction dated 25.08.2018, as above.

9. Feeling aggrieved and dissatisfied with the judgment of conviction dated 25.08.2018, the revisionist preferred Criminal Appeal No. 6/2018, which was dismissed vide judgment dated 03.10.2022.

10. Hence, the instant revision has been filed.

11. Learned counsel for the accused-revisionist submits that the accused-revisionist have not been convicted previously for any offence and he is 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 revision only with respect to the order of sentence.

12. Learned counsel for accused-revisionist submits that in view of the facts and circumstances, including the fact that the accused- revisionist has 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') after 4 CRLR No. 1512 of 2024 convicting for the offense under Sections 420, 465, 471 IPC, which may be done by this Court.

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- revisionist. 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,

14. Learned counsel for the accused-revisionist 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-revisionist 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 accused-revisionist 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, 5 CRLR No. 1512 of 2024 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 accused-revisionist further submitted that he does not want to press the revision on merits. He has submitted that the incident took place about 24 years ago and there is no further criminal antecedent of the accused-revisionist. The delay in trial deprives the right of the accused-revisionist of speedy trial and they may be given benefit of first offender and accused-revisionist may be extended the benefit of Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He further submitted that accused-revisionist is the 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-revisionist.

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

20. 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 expressed 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, 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-revisionist 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 accused-revisionist for providing benefits of Section 4 of the Act of 6 CRLR No. 1512 of 2024 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 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 7 CRLR No. 1512 of 2024 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 vs

The order dated 07.11.2002 passed by the C.O. was challenged by the accused-revisionist by means an appeal, which was dismissed by the Settlement Officer of Consolidation concerned (in short "S.O.C.") vide order dated 27.11.2003, and the same was challenged by the accused- revisionist by means of a revision before the Deputy Director of Consolidation concerned (in short "D.D.C."). The D.D.C. dismissed the revision vide order dated 14.11.2003 and also directed to lodge First Information Report (FIR) against the accused-revisionist under the relevant sections.

5. After the aforesaid, final report dated 20.09.2016 was submitted in the matter and the same was challenged by filing a protest petition/application, which was allowed vide order dated 09.07.2007 and 3 CRLR No. 1512 of 2024 the final report was set-aside and the accused-revisionist was summoned under Sections- 420, 465, 471, 506 IPC to face the trial.

6. Thereafter court concerned recorded the statements of other witnesses namely Gulam Gaus (PW-1), Malik (PW-2) and Sabar Ali (PW-3) and also the statement of accused-revisionist.

7. After considering the statements of accused-revisionist and also the statements of witnesses of prosecution namely Gulam Gaus (PW-1), Malik (PW-2) and Sabar Ali (PW-3), the charges were framed against the accused-revisionist under Sections 420, 465, 471, 506 IPC on

16.11.2010. The accused-revisionist denied the charges and claimed trial.

8. Thereafter, other witnesses of prosecution, named above, and also the accused-revisionist were examined.

9. The trial court thereafter based upon the evidence on record i.e. oral and documentary including the orders passed by the consolidation/revenue authorities concerned, passed the judgment and order of conviction dated 25.08.2018, as above.

9. Feeling aggrieved and dissatisfied with the judgment of conviction dated 25.08.2018, the revisionist preferred Criminal Appeal No. 6/2018, which was dismissed vide judgment dated 03.10.2022.

10. Hence, the instant revision has been filed.

11. Learned counsel for the accused-revisionist submits that the accused-revisionist have not been convicted previously for any offence and he is 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 revision only with respect to the order of sentence.

12. Learned counsel for accused-revisionist submits that in view of the facts and circumstances, including the fact that the accused- revisionist has 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') after 4 CRLR No. 1512 of 2024 convicting for the offense under Sections 420, 465, 471 IPC, which may be done by this Court.

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- revisionist. 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,

14. Learned counsel for the accused-revisionist 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-revisionist 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 accused-revisionist 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, 5 CRLR No. 1512 of 2024 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 accused-revisionist further submitted that he does not want to press the revision on merits. He has submitted that the incident took place about 24 years ago and there is no further criminal antecedent of the accused-revisionist. The delay in trial deprives the right of the accused-revisionist of speedy trial and they may be given benefit of first offender and accused-revisionist may be extended the benefit of Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He further submitted that accused-revisionist is the 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-revisionist.

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

20. 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 expressed 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, 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-revisionist 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 accused-revisionist for providing benefits of Section 4 of the Act of 6 CRLR No. 1512 of 2024 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 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 7 CRLR No. 1512 of 2024 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 vs