Allahabad High Court

BANARASI AND OTHERSversusSTATE OF U.P.

Decided: 30 March 2026
Bench: ABDUL SHAHID

Holding

The conviction was upheld, but the appellants were released on probation under Section 4 of the Probation Offenders Act, 1958.

Summary

The appellants, Banarasi and Sadhu Yadav, were convicted by the Additional District Sessions Judge, Varanasi, for offences under sections 324, 323 and 34 of the Indian Penal Code and sentenced to imprisonment and fines. They appealed, not challenging the conviction itself, but contending that the trial court failed to consider the beneficial provisions of Section 360 of the CrPC or the Probation Offenders Act, 1958, which are mandatory to be considered under Section 361 of the CrPC for first‑time offenders. The State did not dispute that the appellants were first‑time offenders and argued that the court should have applied Section 4 of the Probation Offenders Act. The High Court upheld the conviction but held that the trial court should have exercised its discretion to grant probation and therefore released the appellants on probation, subject to a personal bond and payment of the fines. The court ordered that any breach of the probation conditions would reactivate the original imprisonment sentence.

Issues considered

Whether the trial court was required to consider the provisions of Section 360 CrPC or the Probation Offenders Act, 1958 for first‑time offenders under Section 361 CrPC.
Whether the failure to apply or explain the non‑application of these beneficial provisions renders the sentencing order illegal.

Legislation cited

Code of Criminal Procedure — s. 360, 361
Indian Penal Code — s. 323, 324, 34
Probation Offenders Act, 1958 — s. 3, 4

Subjects

probation
first‑time offender
IPC 324
IPC 323
Section 360 CrPC
Section 361 CrPC
sentencing
criminal appeal
Probation Offenders Act 1958

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL APPEAL No. - 2872 of 1988

Banarasi And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)

Counsel for Appellant(s) : Durga Charan Singh Yadav, Virendra
Singh
Counsel for Respondent(s) : A.G.A.

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

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

2. This criminal appeal has been preferred against the judgment and order
dated 30.11.1988 passed by the Additional District Sessions Judge,
Varanasi, in Sessions Trial No. 98 of 1983, convicting and sentencing the
appellants under section 324 I.P.C. read with section 34 I.P.C. to undergo
two years R.I. and a fine of Rs. 250 against Banarasi and a fine of Rs. 500/-
against Sadhu and in default two months R.I. and further convicting the
appellants under section 323 I.P.C. read with section 34 I.P.C. to undergo six
months R.I.

3. Learned counsel for the accused-appellants submits that the accused-
appellants have not been convicted previously for any offence and they are
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.

4. In view of the aforesaid submission of the learned counsel for the
accused- appellants, 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.

5. Learned counsel for the accused-appellants further 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 Offenders Act, 1958
(hereinafter referred to as 'the Act' for the sake of brevity).
CRLA No. 2872 of 1988
2

6. 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-
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 the Act, 1958.

7. 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.

8. 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.

9. The accused-appellants has statutory right for claiming the benefit of
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.

10. Learned AGA, appearing for the State does not dispute the fact that the
accused-appellants are the first time offender and was 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.

11. 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-appellants. However,
they are granted benefit of Section 4 of the Act. The accused-appellant no.1
Banarasi and appellant no. 2 Sadhu Yadav are released on probation. The
accused/appellants shall file personal bond to the tune of Rs. 20,000/ each
and they shall keep peace in the society and shall not commit any such
offence in future. The bond shall be for one year. Accused-appellant No. 1,
Banarasi, is directed to pay a fine of Rs. 250, if not already paid, and
accused-appellant No. 2, Sadhu Yadav, is directed to pay a fine of Rs. 500, if
not already paid, within 30 days from today.
CRLA No. 2872 of 1988
3

12. In case of breach of any such condition by the accused-appellants during
the next one year, the sentence of imprisonment as ordered shall continue.
The bond filed by the appellants/accused shall stand discharged upon
completion of the period of probation, i.e. one year.

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

March 31, 2026
K.K. Maurya
(Abdul Shahid,J.)

Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad

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