Allahabad High Court
SHESH PAL SINGHversusSTATE OF U.P.
- Decided
- Bench
- TEJ PRATAP TIWARI
Holding
The High Court held that the appellant is entitled to the benefit of Section 4 of the Probation of Offenders Act, 1958 and modified the sentence accordingly.
Summary
The appellant, a fertilizer retailer, was convicted under Sections 3 and 7 of the Essential Commodities Act for alleged shortage of urea and calcium bags and sentenced to three months imprisonment and a fine. He appealed, seeking the benefit of Section 4 of the Probation of Offenders Act, 1958, arguing that he was a first‑time offender, the case was 42 years old, and he deserved a speedy trial. The High Court examined the statutory scheme of the Probation Act, relevant Supreme Court precedents, and the discretion vested in courts to grant probation where the offence is not punishable with death or life imprisonment. Finding no material irregularity in the trial and noting the appellant’s clean record, the Court held that the discretion could be exercised even at the appellate stage. Consequently, the Court modified the sentence, granting probation on two sureties of Rs 20,000 each and a two‑year bond, while upholding the conviction, and partially allowed the appeal.
Issues considered
- The appellant’s eligibility for relief under Section 4 of the Probation of Offenders Act, 1958 despite conviction under the Essential Commodities Act.
- Whether the trial court erred in sentencing and failed to consider probationary relief.
- The scope of the court’s discretion to modify a sentence to probation at the appellate stage.
Legislation cited
- Code of Criminal Procedure — s. 360
- Essential Commodities Act — s. 3, 7
- Probation of Offenders Act, 1958 — s. 3, 4
- Uttar Pradesh First Offenders Probation Act, 1938
Subjects
- Essential Commodities Act
- Probation of Offenders Act
- first offender
- sentencing discretion
- probation
- appeal
- modification of sentence
- speedy trial
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 365 of 1987
Sheesh Pal Singh
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : P.K. Jain, Vishesh Rajvanshi
Counsel for Respondent(s) : A.G.A.
Court No. - 79
HON'BLE TEJ PRATAP TIWARI, J.
1. Present Criminal Appeal has been filed against the judgment and order
dated 24.01.1987 passed by Special Additional Sessions Judge,
Muzaffarnagar in Special Case No.2 of 1985 (State Versus Shesh Pal Singh)
under Section 3/7 of Essential Commodities Act, Police Station Shamli,
District Muzaffarnagar, convicting and sentencing the appellant to undergo
three months imprisonment and to pay fine of Rs. 500/- and in default of
payment of fine, to undergo further imprisonment for fifteen days.
2. As per the prosecution story, in the year 1984 the accused Sheesh Pal
Singh was a retail dealer in fertilizers at Shamli and his shop was known as
P0OJA FERTILIZERS. A surprise checking of the said shop was conducted
on 7.8.1984 at about 1.00 in the noon by Sri J. P. Sharma, S.D.M. Kairana
assisted by Gri Vijendra Singh, Additional District Agriculture Officer and
Sri Yagya Dutt Sharma, Assistant Registrar, Co-operative Societies. The
stock register of the said shop was showing a balance of fifty four bags of
Urea and 10 bags of Calcium but on the physical checking only 37 bags of
Urea and no bag at all of Calcium were found in the shop. In this manner
there was a shortage of 17 bags of Urea and 10 bags of Calcium as compared
with the position shown by the Stock Register. It was also found that no cash
memo for any sale was issued after 28.07.1984.
3. Based on a Written Report, which has been marked and exhibited as Ext.
Ka-6, FIR was lodged on 07.08.1984 at 2.30 p.m., at Police Station Phugana,
District Muzaffarnagar under Section 3/7 of E.C. Act against the accused
appellant. The said FIR has been exhibited and marked as Exhibit Ka-5.
4. Consequent to the lodging of FIR, the Investigating Officer S.I. Baljeet
Singh has conducted investigation and after completing the investigation,
filed charge-sheet against accused-appellant Sheesh Pal Singh under Section
CRLA No. 365 of 1987
2
3/7 of E.C. Act in the Court of Special Additional Sessions Judge,
Muzaffarnagar.
5. After the submission of charge-sheet, the case was committed to the
Special Additional Sessions Judge, Muzaffar who framed charge under
Section 3/7 of Essential Commodities Act.
6. At the trial, besides the documentary evidence, the prosecution relied on
oral evidence of five witnesses. Additional District Agriculture Officer,
Vijendra Singh was examined as PW-1 and District Assistant Registrar,
Cooperative Societies, Bulandshahar, Yagya Datt Sharma was examined as
PW-2. They have stated on oath that they have checked the shop of the
accused. Head Constable, Dharmapal, was examined as PW-3 who proved
chik F.I.R. and G.D entries. Chief Development Officer, J.P. Sharma
examined as PW-4 was the complainant of the case and S.I. Baljeet Singh
examined as PW-5 was the Investigating Officer, who after conclusion of
investigation, has submitted charge-sheet of the case.
7. Thereafter, the statement of accused-appellant Sheesh Pal Singh was
recorded under Section 313 Cr.P.C, in which the accused denied the
allegations against him and told himself to be innocent. In defence, he
examined one defence witness DW-1 Baljor Singh.
8. Thereafter, the learned trial court after hearing learned counsel for both
the parties and appreciating the entire evidence oral as well as documentary,
found the accused / appellant guilty and sentenced the appellant as aforesaid.
9. Feeling aggrieved and dissatisfied with the impugned judgment and order
of conviction, the accused-appellant has preferred the present appeal.
10. Learned counsel for the appellant 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, learned counsel for the appellant
submitted that it is upon the discretion of the Court to grant benefits in either
of the Acts.
11. Learned counsel for the appellant further submitted that he does not want
to press the appeal on merits. He has submitted that the incident took place
42 years ago and there is no further criminal antecedent against the
appellant. The delay in trial deprives the right of the appellant of speedy trial
and he may be given benefit of first offender and appellant may be extended
CRLA No. 365 of 1987
3
the benefit of Probation of Offenders Act, 1958 (herein after referred as the
Act of 1958). He further submitted that appellant is first time offender and
he is not previously convicted in any case. He further submitted that this is
the Court which may consider the benefit of Section 4 of the Act of 1958 to
the accused-appellant.
12. Learned A.G.A., on the other hand, opposed the appeal and has
submitted that there is no material irregularity or illegality committed by
court below and keeping in view the evidence on record, accused-appellant
has been rightly convicted.
13. Learned A.G.A. further states that the benefit of Section 4 of the Act of
1958 could be extended to the accused-appellant on certain stipulations as
specified in Section 4 of the Act of 1958.
14. 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
appellant for providing benefits of Section 4 of the Act of 1958 is concerned,
it is essential to discuss the legal position and law propounded by the Apex
Court.
15. 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.
CRLA No. 365 of 1987
4
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."
16. 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
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
CRLA No. 365 of 1987
5
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."
17. 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
Act" and, therefore, of little consequence. This is a totally wrong
approach and even if the Bar does not help, the Bench must fulfill
the humanising mission of sentencing implicit in such enactments
as the Probation of offenders Act."
CRLA No. 365 of 1987
6
18. 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:
"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.
19. 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
The 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
CRLA No. 365 of 1987
7
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."
20. That coming to the point of desirability of extending the benefit of
Probation Act to the accused/ appellant in Sitaram Paswan and another v/s
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 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."
21. 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
CRLA No. 365 of 1987
8
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."
22. That Section 4 of the Act of 1958 is applicable where a person is found
guilty of committing an offence where punishment is neither life sentence
nor death. The Court may release such an accused on probation of good
conduct on his furnishing a bond as mentioned in the Section. The Court in
applying the provisions of this section is also required to consider the
circumstances of the case, character of the offender and nature of the offence
before exercising its discretion.
23. A perusal of the aforesaid provisions of the Act of 1958 thus clearly
indicate that Section 4 of the Act of 1958 does not create any distinction
between the category of offenders and the provision of the said section can
be made applicable in any case where the offender is found guilty for
committing an offence which is not punishable with death or imprisonment
for life. Incidentally certain exceptions have been indicated by the Hon'ble
Supreme Court as in the case of Smt. Devki Versus State of Harayana
reported in 1979 (3) SCC 760 where the Hon'ble Supreme Court has held
that benefit of Section 4 of the Act of 1958 could not be extended to a culprit
who was found guilty of abducting a teenaged girl and forcing her to sexual
submission with criminal motive. Similarly in the case reported in 1980 (4)
SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das
Soni the Hon'ble Supreme Court declined to extend the benefit of the Act of
1958 to an accused found guilty of gold smuggling.
24. That Hon'ble Apex Court in case of Jagat Pal Singh & others vs. State
of Haryana AIR 2000 SC 3622 has given the benefit of probation while
CRLA No. 365 of 1987
9
upholding the conviction of accused persons under Sections 323, 452, 506
I.P.C. and has released the accused persons on executing a bond before the
Magistrate for maintaining good behaviour and peace for the period of six
months.
25. Similarly this Court in case of Virendra Kumar Vs State of U.P. 2022
(120) ACrC 392 has given benefit of probation while upholding the
conviction of revisionist under section 7/16 of Food Adulteration Act and
had released the accused persons on executing a bond before Magistrate for
maintaining good behaviour and peace for period of six months.
26. That it is noteworthy that the incident took place way back in the year
1984 . The accused-appellant has suffered in matter for past 42 years and
there is no any criminal antecedent between the parties during these years.
27. Considering the fact and circumstances of the case, I am of the view that
the benefit of provision of the Act of 1958 should be provided to the accused
/ appellant.
28. In the light of the above discussion, as far as it relates with the
conviction of the appellant in aforesaid case is maintained but the sentence is
modified. Instead of sending the appellant to jail he is given benefit of
Section 4 of The Probation of Offenders Act, 1958 and he is directed to file
two sureties each to the tune of Rs 20,000/- along with his personal bond
before District Probation Officer concerned as also an undertaking to the
effect that he shall maintain peace and good behaviour during the period of
two years from today. The said bonds are to be filed by the appellant within
a period of three months from the date of this judgment.
29. In case of breach of any of the above conditions, the appellant shall be
taken into custody and shall have to undergo sentence awarded to him.
30. With the above modification, the instant criminal appeal is partly
allowed.
31. A certified copy of the order be also sent to the court concerned for
compliance.
32. Office is directed to communicate this order to the court concerned for
necessary compliance.
33. Lower court record, if any, shall also be sent back to the district court
concerned.
February 19, 2026
MN/-
(Tej Pratap Tiwari,J.)
Digitally signed by :-
MAHENDRA NATH
High Court of Judicature at Allahabad
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