RAJENDRA AND OTHERSversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 814 of 1984

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

Counsel for Appellant(s)             :   G.P. Dixit, Pankaj Bharti
Counsel for Respondent(s)            :   Brijesh Kumar Sharma, A.G.A.

Court No. - 78
                 HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Mr. Pankaj Bharti, learned counsel for the surviving appellant Nos.
2 and 3, Shri Brijesh Kumar Sharma, learned counsel for the
informant, learned A.G.A. for the State and perused the record.

2. This appeal has been preferred against the judgment and order dated
08.03.1984 passed by VIth Additional Sessions Judge, Muzaffarnagar in
Sessions Trial No. 384 of 1982 (State v. Rajendra and others) convicting and
sentencing the appellants nos. 1 to 5 under Sections 323, 147, 452 I.P.C. to 6
months R.I., 1 year R.I. and 2 years R.I. respectively and appellant no. 6 is
given benefit of probation for 1 year of Rs. 1000/- each.

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

4. From the perusal of records, it transpires that the appellant No. 1
Rajendra, appellant No. 5 Radhey Lal, appellant No. 6 Virendra alias
Devendra have died and, accordingly, appeal against the appellant Nos. 1, 5
and 6 stands abated. Further, appellant No. 4 Suraj Mal had also died and
appeal against the said appellant also stood abated on 02.08.2022.

5. The appeal survives only with respect to appellant no. 2 - Indra Pal and
appellant no. 3 - Surendra alias Sunder.

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:
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"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 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
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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 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,
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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.

(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
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offenders."

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

10. 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.

11. In this instant case, the court below has not considered the probation law
although the appellant Nos. 2 and 3 have been convicted for the offences
under Sections 323, 147, 452 I.P.C. and sentenced to 6 months R.I., 1 year
R.I. and 2 years R.I. respectively, 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 Section 361 Cr.P.C. Moreover,
the occurrence relates to the year 1980 and therefore, no purpose of justice
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will be served if the appellants are sent to jail to undergo the terms of
sentence after lapse of such long time.

12. 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."

13. 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 appellante 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
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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."

14. 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."

15. 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 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."
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                                  8

16. 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."

17. 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 persons under Sections 323, 147,
452 I.P.C. and sentenced to 6 months R.I., 1 year R.I. and 2 years R.I.
respectively and has released the accused persons on executing a bond
before the Magistrate for maintaining good behaviour and peace for the
period of two years.

18. 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.

19. That it is noteworthy that the incident took place way back in the year
1980. The accused-appellants have suffered prolonged criminal proceeding
and there is no any criminal antecedent of the appellants during these years.

20. Having regard to the sentence imposed and having regard to fact that
there are no criminal antecedents against the appellant Nos. 2 and 3 and the
Court is inclined to give the benefit of releasing the appellants on probation.
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                                    21. Hence, while maintaining the conviction, it is directed that, appellant No.
                                    2, Indra Pal and appellant No. 3 Surendra alias Sunder 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. 1,000/-, 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.

                                    22. If there is breach of any of the conditions, the appellants shall be taken
                                    into and shall be called upon to undergo sentence imposed by Trial Court.
                                    The bonds and sureties aforesaid be filed by the appellants within one month
                                    from the date of the Judgment as per law and Rules.

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

                                    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.

                                    April 7, 2026
                                    SY
                                                                                       (Nand Prabha Shukla,J.)




Digitally signed by :-
SWETA YADAV
High Court of Judicature at Allahabad