KHARAK SINGHversusSTATE OF U.P.

        HIGH COURT OF JUDICATURE AT ALLAHABAD
             CRIMINAL APPEAL No. - 2798 of 1987

Kharag Singh and others
                                                     .....Appellant(s)
                              Versus
State of U.P.
                                                   .....Respondent(s)

Counsel for Appellant(s)         :   Kiran Tiwari, Lalit Kumar
                                     Srivastava, Mahesh Chandra
                                     Tiwari, V.K.Chaturvedi
Counsel for Respondent(s)        :   A.G.A.

Court No. - 76
            HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Ms. Abida Syed, learned amicus curiae for the
appellants, learned A.G.A. for the State and perused the record.

2. This appeal has been preferred against the judgment and order
dated 04.11.1987 passed by Vth Additional District and Sessions
Judge, Agra in S.T. No. 414 of 1986, whereby convicted the
appellants under Section 323 and sentenced them to a fine of Rs.
500/- each under Section 325 IPC sentenced them to a fine of Rs.
500/- and two years R.I. under Section 452 IPC sentenced them
to a fine of Rs. 500/- and two years R.I. and in default of payment
of fine six months R.I.

3. Today, the present Criminal Appeal is listed under the
category of oldest pending cases in this High Court for
priority basis.

4. As per the office report dated 17.08.2022, appellant No. 1
Kharag Singh has died, accordingly, the appeal against the
appellant No. 1 Kharag Singh stands abated. Further, as per the
said report, notice has already been sent to appellant No. 2
Raghubir Singh and appellant No. 3 Surendra.

5. From the perusal of records, it transpires that the appellant No.
2 Raghubir Singh and appellant No. 3 Surendra are surviving and
has been convicted for the offences under Section 323 and
sentenced them to a fine of Rs. 500/- each under Section 325 IPC
                                                           CRLA No. 2798 of 1987
                              2


sentenced them to a fine of Rs. 500/- and two years R.I. under
Section 452 IPC sentenced them to a fine of Rs. 500/- and two
years R.I. and in default of payment of fine six months R.I.

6. In the case of Subhash Chand & others Vs. State of U.P.
(2015 Law Suit (All) 1343) and the judgment passed in
Criminal Revision No. 1319 of 1999 (Hargovind & Others vs.
State of U.P.) passed by this Court on 11.01.2019.

Section 3 of the Probation of Offenders Act reads as follows:

"3. Power of court to release certain offenders after admonition.- When
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."

7. Thus, this was the bounden duty of the learned Trial Court and
also the appellate court to consider why they did not proceed to
grant the benefit of Probation of Offenders Act.

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
                                                           CRLA No. 2798 of 1987
                              3

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.

(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."

8. 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
:

(1) When any person not under twenty- one years of age is convicted of
                                                           CRLA No. 2798 of 1987
                              4

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 Court or Court of Session when exercising its powers of
revision.
                                                           CRLA No. 2798 of 1987
                              5

(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-

(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
                                                           CRLA No. 2798 of 1987
                              6

rehabilitation of youthful offenders, but has not done so, it shall record in
its judgment the special reasons for not having done so."

9. 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. Unfortunately, this
branch of law has not been much utilized by the trial courts. 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. 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.

10. In this instant case, the court below has not considered the
probation law although the appellant No. 2 Raghubir Singh and
appellant No. 3 Surendra are surviving and have been convicted
for the offences under Section 323 and sentenced them to a fine
of Rs. 500/- each under Section 325 IPC sentenced them to a fine
of Rs. 500/- and two years R.I. under Section 452 IPC sentenced
them to a fine of Rs. 500/- and two years R.I. and in default of
payment of fine six months R.I. for which the appellants were
convicted for the maximum period of two years' rigorous
imprisonment. Therefore, the benefit of probation could have
been given in view of the law referred above. But, while
awarding sentence this aspect was not considered. The learned
court below did not even write a single word as to why the
benefit of this beneficial legislation was not given to the accused
whereas it was mandatory to do so under the provisions of
                                                           CRLA No. 2798 of 1987
                              7


Section 361 Cr.P.C. Moreover, the occurrence relates to the year
1987 and 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.

11. Further the Hon'ble Supreme Court in the case of Ved
Prakash vs State of Haryana, (1981) 1 SCC 447 : AIR 1981
SC 643 while discussing on the duty of Bench and Bar regarding
compliance of Section 360 Code of Criminal Procedure read with
Section 4 of Probation of Offenders Act, 1958 was pleased to
observe as under:-

"The offence, for which conviction has been rendered, is one which will
be attracted by S. 360 or at any rate the Probation of offenders Act, 1958.
The materials before us are imperfect because the Trial Court has been
perfunctory in discharging its sentencing functions. We must emphasise
that sentencing an accused person is a sensitive exercise of discretion and
not a routine or mechanical prescription acting on hunch. The Trial
Court should have collected materials necessary to help award a just
punishment in the circumstances. The social background and the personal
factors of the crime-doer are very relevant although in practice Criminal
Courts have hardly paid attention to the social milieu or the personal
circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is
the duty of the sentencing Court to be activist enough to collect such facts
as have a bearing on punishment with a rehabilitating slant. The absence
of such materials in the present case has left us with little assistance even
from the counsel. Indeed members of the bar also do not pay sufficient
attention to these legislative provisions which relate to dealing with an
offender in such manner that he becomes a non-offender. We emphasise
this because the legislation which relate to amelioration in punishment
have been regarded as 'Minor Acts' and, therefore, of little consequence.
This is a totally wrong approach and even if the Bar does not help, the
Bench must fulfil the humanising mission of sentencing implicit in such
enactments as the Probation of offenders Act."

12. That it is also noteworthy that this Hon'ble Court in the case
of Subhash Chand vs State of U.P; [2015 Law Suit (All) 1343,
has emphatically laid down the need to apply the law of probation
and give benefit of the beneficial legislation to accused persons in
appropriate cases. This court issued following directions to all
trial courts and appellate courts:
                                                            CRLA No. 2798 of 1987
                               8

"It appears that the aforesaid beneficial legislation has been lost sight of
and even the Judges have practically forgotten this provision of law.
Thus, before parting with the case, this Court feels that I will be failing in
discharge of my duties, if a word of caution is not written for the trial
courts and the appellate courts. The Registrar General of this Court is
directed to circulate copy of this Judgment to all the District Judges of
U.P., who shall in turn ensure circulation of the copy of this order
amongst all the judicial officers working under him and shall ensure
strict compliance of this Judgment. The District Judges in the State are
also directed to call for reports every months from all the courts, i.e. trial
courts and appellate courts dealing with such matters and to state as to in
how many cases the benefit of the aforesaid provisions have been granted
to the accused. The District Judges are also directed to monitor such
cases personally in each monthly meeting. The District Judges concerned
shall send monthly statement to the Registrar General as to in how many
cases the trial court/appellate court has granted the benefit of the
aforesaid beneficial legislation to the accused. A copy of this order be
placed before the Registrar General for immediate compliance."

13. Further the Hon'ble Apex Court in State of Maharashtra vs
Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659 has
extended the benefit of Probation of Offenders Act, 1958 to the
appellants, and observed as under:

"The learned counsel appearing for the accused submitted that the
accident is of the year 1990. The parties are educated and neighbors. The
learned counsel, therefore, prayed that benefit of the Probation of
Offenders Act, 1958 may be granted to the accused. The prayer made on
behalf of the accused seems to be reasonable. The accident is more than
ten years old. The dispute was between the neighbors over a trivial issue
of claiming of drainage. The accident took place in a fit of anger. All the
parties educated and also distantly related. The accident is not such as to
direct the accused to undergo sentence of imprisonment. In our opinion, it
is a fit case in which the accused should be released on probation by
directing them to execute a bond of one year for good behaviour."

14. That coming to the point of desirability of extending the
benefit of Probation Act to the accused/ appellants in Sitaram
Paswan and Anr v. State of Bihar, AIR 2005 SC 3534,
Supreme Court held as under:-

"For exercising the power which is discretionary, the Court has to
consider circumstances of the case, the nature of the offence and the
                                                          CRLA No. 2798 of 1987
                              9

character of the offender. While considering the nature of the offence, the
Court must take a realistic view of the gravity of the offence, the impact
which the offence had on the victim. The benefit available to the accused
under Section 4 of the Probation of Offenders Act is subject to the
limitation embodied in the provisions and the word "may" clearly
indicates that the discretion vests with the Court whether to release the
offender in exercise of the powers under Section 3 or 4 of the Probation
of Offenders Act, having regard to the nature of the offence and the
character of the offender and overall circumstances of the case. The
powers under Section 4 of the Probation of Offenders Act vest with the
Court when any person is found guilty of the offence committed, not
punishable with death or imprisonment for life. This power can be
exercised by the Courts while finding the person guilty and if the Court
thinks that having regard to the circumstances of the case, including the
nature of the offence and the character of the offender, benefit should be
extended to the accused, the power can be exercised by the Court even at
the appellate or revisional stage and also by this Court while hearing
appeal under Article 136 of the Constitution of India."

15. That it is also noteworthy that Hon'ble Apex Court in the case
of Mohd. Hashim v. State of U.P and Ors., AIR 2017 SC page
660, was pleased to observe as under:

"20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba
Rao, J., speaking for the majority, opined thus:-

"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 conditions laid down in the
appropriate provisions 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
Sections 3 and 4 of the Act."
                                                    CRLA No. 2798 of 1987
                          10


16. Similarly, in Jagat Pal Singh & others Vs. State of
Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given
the benefit of probation while upholding the conviction of
accused person i.e. appellant No. 2 Raghubir Singh and appellant
No. 3 Surendra are surviving and have been convicted for the
offences under Section 323 and sentenced them to a fine of Rs.
500/- each under Section 325 IPC sentenced them to a fine of Rs.
500/- and two years R.I. under Section 452 IPC sentenced them
to a fine of Rs. 500/- and two years R.I. and in default of payment
of fine six months R.I. and have released the accused person on
executing a bond before the Magistrate for maintaining good
behaviour and peace for the period of two years

17. Recently, the Hon'ble Apex Court in Ramesh v. State of
Rajasthan 2025 INSC 46 had released the appellant who was at
his advance age, by extending the benefit of probation under the
Probation of Offenders Act, 1958.

18. That it is noteworthy that the incident took place way back in
the year 1987. The accused-appellants have suffered prolonged
criminal proceeding and there is no any criminal antecedent of
the appellant sduring these years.

19. Having regard to the sentence imposed and having regard to
fact that there are no criminal antecedents against the appellants,
Court is inclined to give the benefit of releasing the appellants on
probation.

20. Hence, while maintaining the conviction, it is directed that,
appellant No. 2 Raghubir Singh and appellant No. 3 Surendra
be released giving the benefit of Section 4 of the Probation of
Offenders Act. Consequently, the appellants shall file two
sureties with personal bonds before District Probation Officer
concerned and also an undertaking to keep peace and good
behaviour for the period of two years from the date of filing of
bail bonds. The accused-appellants shall deposit the fine of Rs.
500/-, as impugned in the judgment under appeal, within a period
of one month from the date of the judgment, if the same has not
been deposited till date.
                                                                                            CRLA No. 2798 of 1987
                                                                  11


                                        21. If there is breach of any of the conditions, the appellant will
                                        be taken into custody and will have to undergo sentence awarded
                                        to him. The bonds and sureties aforesaid be filed by the appellant
                                        within one month from the date of the Judgment as per law and
                                        Rules.

                                        22. With the above modification, the appeal is accordingly partly
                                        allowed.

                                        23. The High Court Legal Service Authority is directed to pay Rs.
                                        7,000/- to Ms. Abida Syed for her assistance to the Court as
                                        Amicus Curiae.

                                        24. 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.

                                        March 16, 2026
                                        Shivani
                                                                               (Nand Prabha Shukla,J.)




Digitally signed by :-
SHIVANI SRIVASTAVA
High Court of Judicature at Allahabad