KAMATA PRASADversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                  CRIMINAL APPEAL No. - 1819 of 1987

Kamata Prasad and others.
                                                           .....Appellant(s)
                                  Versus

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

Counsel for Appellant(s)               :   Bhaiya Ram, S.P. Tiwari
Counsel for Respondent(s)              :   A.G.A.

Court No. - 53
                     HON'BLE ABDUL SHAHID, J.

1. Heard Ms. Nikki Verma, Advocate holding brief of Sri Bhaiya Ram,
learned counsel for the appellants and the learned AGA for the State.

2. This criminal appeal has been preferred against the judgment and order
dated 15.7.1987, passed by Special Judge (Anti Dacoity)/IVth Additional
Sessions Judge, Mainpuri in Special Trial No. 25 of 1984 (State Vs.
Kamta Prasad and 28 others).

3. The present Criminal Appeal has been filed by 12 appellants and 10
appellants had died during the pendency of the present criminal appeal.
Hence, proceedings of present criminal appeal is dismissed as abated
against them.

4. Now, there are only two appellants have been left, who are alive viz.
Appellant No.2- Satya Dev son of Mata Din and appellant No.6-
Rameshwar Dayal son of Sobha Ram. The appellant no. 6- Rameshwar
Dayal has been convicted and sentenced for a period of one year and he
was released on probation by the learned trial court itself on 15.7.1987 for
a period of probation of two years. If he has successfully completed the
period of probation since 15.7.1987, then he shall be released forthwith.

5. So far as appellant no.2- Satya Dev is concerned, he has been
convicted and sentenced by the learned trial court for a period of two
years and three months.

6. Learned counsel for the accused-appellant no.2 submits that the
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accused-appellant has not been convicted previously for any offence and
he is the first time offender. He at the outset submits that he is not
challenging the impugned judgment and order of conviction and he is
confining his submission in the criminal appeal only with respect to the
order of sentence.

7. In view of the aforesaid submission of the learned counsel for the
accused-appellant, the criminal appeal is dismissed so far as it relates to
the impugned judgment and order of conviction, passed by the learned
trial court. The impugned judgment and order of conviction passed by the
learned trial court is hereby, upheld.

8. Learned counsel for the accused-appellant further submits that in view
of the aforesaid facts and circumstances, including the fact that the
accused-appellant has not been convicted previously for any offence, the
trial court ought to have invoked the provisions of the Probation
Offenders Act, 1958 (hereinafter referred to as 'the Act' for the sake of
brevity).

9. 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-
appellant.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 the Act, 1958.

10. Learned counsel for the accused-appellant 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.

11. 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.

12. The accused-appellant has statutory right for claiming the benefit of
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                                    beneficial legislation i.e. the provisions of the Act 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 as mandated under Section 361 Cr.P.C. If the
                                    provisions of Section 360 Cr.P.C or provisions of the Act were not
                                    applied, then the learned trial court should have recorded reasons for the
                                    same.

                                    13. Learned AGA, appearing for the State does not dispute the fact that
                                    the accused-appellant is the first time offender and were not previously
                                    convicted in any other case. He further submits that in view of the express
                                    provisions of Section 361 Cr.P.C, considering the facts and
                                    circumstances, nature of the offence, the character of the accused-
                                    appellant and particularly, the time period which has lapsed since the date
                                    of incident, the benefit of Section 4 of the Act can be granted in this case.

                                    14. In view of the above facts and circumstances mentioned and
                                    considering the scope of Section 4 of the Act, this criminal appeal is,
                                    accordingly dismissed by upholding the conviction of the accused-
                                    appellant no.2. However, he is granted benefit of Section 4 of the Act.
                                    The accused-appellant no.2 is released on probation. The accused-
                                    appellant shall file personal bond to the tune of Rs. 20,000/ and he shall
                                    keep peace in the society and shall not commit any such offence in future.
                                    The bond shall be for one year.

                                    15. In case of breach of any such condition, the accused-appellant will
                                    subject himself to undergo the sentences before the trial court as per law.
                                    The accused-appellant shall file the bond within a period of one month
                                    from today.

                                    16. Let a copy of this judgment as well as the record be transmitted to the
                                    concerned trial court forthwith for necessary compliance.



                                                                                             (Abdul Shahid,J.)
                                    April 1, 2026
                                    sfa/




Digitally signed by :-
SYED FAHEEM AHMAD
High Court of Judicature at Allahabad