SHANKER LAL AND ANOTHERversusSTATE OF U.P.

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                     CRIMINAL APPEAL No. - 1145 of 1986

Shanker Lal And Another
                                                                   .....Appellant(s)
                                       Versus

State of U.P.
                                                                 .....Respondent(s)

Counsel for Appellant(s)            : A.C.Chaturvedi,          Kamlesh       Kumar
                                      Tripathi
Counsel for Respondent(s)           : A.G.A.

Court No. - 79
                    HON'BLE CHAWAN PRAKASH, J.

1. Heard learned counsel for the appellants and learned A.G.A. for the
State and perused the record.

2. This appeal has been preferred against the judgment and order of
conviction dated 20.03.1986 passed by learned IVth Additional Sessions
Judge, Kanpur Dehat in Session Trial No. 206 of 1984, whereby the
accused-appellants were convicted and sentenced for a period of one year
of rigorous imprisonment under Section 147/148 I.P.C. and further two
years of rigorous imprisonment under Section 325/149 I.P.C.. The
appellants were granted bail by this Court vide order dated 14.05.1986.

3. Learned counsel for the appellants has submitted that he is not inclined
to argue the case on merits and will seek the benefit of probation as the
appellants have been convicted for the offence under Section 147, 148,
149, 325 I.P.C., for which learned A.G.A. has no objection.

4. Section 4 of the Probation of Offenders Act reads as follows:

"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
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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."

5. A similar provision finds place in the Code of Criminal Procedure.
There, Section 360 provides:

"360. Order to release on probation of good conduct or after admonition:
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(1) When any person not under twenty- one years of age is convicted of an offence
punishable with fine only or with imprisonment for a term of seven years or less, or
when any person under twenty- one years of age or any woman is- convicted of an
offence not punishable with death or imprisonment for life, and no previous conviction
is proved against the offender, if it appears to the Court before which he is convicted,
regard being had to the age, character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class
not specially empowered by the High Court, and the Magistrate is of opinion that the
powers conferred by this section should be exercised, he shall record his opinion to
that effect, and submit the proceedings to a Magistrate of the first class, forwarding
the accused to, or taking bail for his appearance before, such Magistrate, who shall
dispose of the case in the manner provided by sub- section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by
sub- section (1), such Magistrate may thereupon pass such sentence or make such
order as he might have passed or made if the case had originally been heard by him,
and, if he thinks further inquiry or additional evidence on any point to be necessary,
he may make such inquiry or take such evidence himself or direct such inquiry or
evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest
misappropriation cheating or any offence under the Indian Penal Code (45 of 1860 ),
punishable with not more than two years' imprisonment or any offence punishable
with fine only and no previous conviction is proved against him, the Court before
which he is so convicted may, if it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of the offender and to the trivial nature of
the offence or any extenuating circumstances under which the offence was committed,
instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High
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Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the
High Court or Court of Session may, on appeal when there is a right of appeal to such
Court, or when exercising its powers of revision, set aside such order, and in lieu
thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under this sub- section
inflict a greater punishment than might have been inflicted by the Court by which the
offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the
case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub- section (1), shall
be satisfied that an offender or his surety (if any) has a fixed place of abode or regular
occupation in the place for which the Court acts or in which the offender is likely to
live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with
the offender in respect of his original offence, is satisfied that the offender has failed
to observe any of the conditions of his recognizance, it may issue a warrant for his
apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith
before the Court issuing the warrant, and such Court may either remand him in
custody until the case is heard or admit him to bail with sufficient surety conditioned
on his appearing for sentence and such Court may, after hearing the case, pass
sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders
Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960 ), or any other law for
the time being in force for the treatment, training or rehabilitation of youthful
offenders."

Again, Section 361 reads as below:

"361. Special reasons to be recorded in certain cases.- Where in any case the Court
could have dealt with-
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(a) an accused persons under section 360 or under the provisions of the Probation of
Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for
the time being in force for the treatment, training or rehabilitation of youthful
offenders, but has not done so, it shall record in its judgment the special reasons for
not having done so."

6. These statutory provisions very emphatically lay down the reformatory
and correctional object of sentencing and obligates the trial court as well
as appellate courts to give benefit of probation in fit cases as provided
under law. It becomes more relevant and important in our system of
administration of justice where trial is often concluded after a long time
and by the time decision assumes finality, the very purpose of sentencing
looses its efficacy as with the passage of time the penological and social
priorities change and there remains no need to inflict punishment of
imprisonment, particularly when the offence involved is not serious and
there is no criminal antecedent of the accused person.The facts and given
circumstances in each case, the nature of the crime, the manner in which
it was planned and committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons used and all other
attending circumstances are relevant facts which would enter into the area
of consideration. It is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the manner in
which it was executed or committed.

7. In the instant case, the appellants were only convicted for the offence
under Section 147, 148, 149, 325 I.P.C. for which the appellants were
sentenced for the maximum period of two years. The occurrence relates to
the year 1984 and this appeal is pending since 1986, therefore, no purpose
of justice will be served if the appellants are sent to jail to undergo the
terms of sentence after lapse of such long time.

8. Considering the fact that the appellants have been convicted only under
Section 147, 148, 149, 325 I.P.C., I find it to be a fit case in which the
benefit of probation may be given. The reason being that there is no
criminal history alleged against the appellants and they belong to a very
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                                    humble village background. The Probation of Offenders Act as well as
                                    Sections 360 and 361 of Cr.P.C. makes it mandatory on the part of the
                                    Trial Court to state reason for not extending the benefit of probation in a
                                    case relating to an offence which is punishable for less than 7 years
                                    imprisonment. Accordingly, the impugned judgment of conviction and
                                    order of sentence recorded by the Trial Court under Section 147, 148,
                                    149, 325 I.P.C. is upheld.

                                    9. However, instead of sending the appellants, Shanker Lal & Har
                                    Govind to jail, they shall get the benefit of Section 4 of the Probation of
                                    Offenders Act. Consequently, the appellants shall file a personal bond of
                                    Rs. 25,000/- and two sureties each in the like amount to the satisfaction of
                                    the Court concerned to the effect that they shall not commit any offence
                                    and shall observe good behaviour and shall maintain peace during the
                                    period of one year. If there is breach of any of the conditions, they will
                                    subject themselves to undergo sentence. The bonds and sureties aforesaid
                                    be filed by the accused persons within one month from the date of the
                                    Judgment as per law and Rules.

                                    10. With the above modification, the appeal is accordingly disposed of
                                    finally.

                                    11. Office is directed to send the certified copy of this judgment along
                                    with Trial Court record to the Court concerned for information and
                                    necessary action.



                                                                                         (Chawan Prakash,J.)
                                    April 29, 2026
                                    Rmk.




Digitally signed by :-
RAM MURTI KUSHWAHA
High Court of Judicature at Allahabad