# Ajay Kumar Revisionist v. State of U.P

- **Citation:** (2023) 4 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Criminal Revision No. 145 of 2008
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-revisionist-v-state-of-u-p-50083
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- Indian Penal Code.1860 - Sections 457,
154 INDIAN LAW REPORTS ALLAHABAD SERIES
380 & 411, - Probation of Offender Act,
1958 - Sections 4 & 5 - Criminal Revision -
unnamed FIR u/s 457, 380 of IPC - investigation
- alleged stolen generator was recovered from
the joint possession of revisionist & anr. accused
- charge-sheet framed u/s 457, 380, 411 of IPC
- trial court acquitted accused for offence
punishable u/s 457 & 380 of IPC - but, punished
them with rigorous imprisonment for one year
u/s 411 of PC - Revisionist has no criminal
history apart from this case - revisionist
preferred revision U/s 397/401 of Cr.P.C.
confined himself only with respect to the order
of sentence passed by learned trial court, on the
ground that, trial court neither invoked the
provisions of Probation of Offenders Act, nor the
provisions u/s 360 Cr.P.C. while sentencing the
accused-revisionist - as such trial court is
violative of provisions u/s 361 of Cr.P.C. - Court
finds that, Trial Court did not considered the fact
that this is a fist case against the accused and
he is not convicted earlier and merely on the
ground that the generator, which was too costly
was recovered from the possession of accusedappellant, the benefit of section 4 of Act, 1958
is withheld - hence, revisionist is entitled to
granted the benefit of section 4 of the Probation
of Offenders Act, - direction issued accordingly.
(Para - 11, 12, 13)

Criminal
Revision
Dismissed
with
directions. (E-11)

## Text

4 All. Ajay Kumar Vs. State of U.P.
153
person. It cannot be assumed that a maid
servant who occasionally comes to the
defendant's rented house for an hour for
washing, cleaning and dusting before
whom the rent would have been provided
continuously by the tenant. Hence, the
finding recorded in this regard by the trial
court is also affirmed by this Court.

31. In the last the trial court
concluded that the property in suit is not
covered by the provisions of UP Act No.13
of 1972. The tenant defendant could not
prove payment of rent. By the notice under
Section 106 of Transfer of Property Act the
tenancy was rightly terminated by the
plaintiff. The defendant tenant could not
prove the payment and was found to be a
defaulter. Hence, the petition was allowed
and an order of eviction was passed but it
has been concluded that since the plaintiff
could not succeed in proving that the rate
of rent is Rs.1,000/- hence it was directed
that since May 15, 1996 till the date of
eviction the plaintiff land-lord would be
entitled to receive the amount of rent and
for damages at the rate of Rs.500/- per
month.

32. If the plaintiff land-lord was
aggrieved
by
the
finding
regarding
determination of rent to be only Rs.500/-
per month instead of Rs.1,000/- per month,
the plaintiff land-lord had option to file a
cross
revision.
Hence,
it
would
be
concluded that she has accepted the finding
given by the trial court regarding rate of
rent. Therefore, this Court cannot and
should not enter into the question regarding
rate of rent any more.

33. So far as the finding regarding rest
points for determination are concerned, this
Court is in conformity with the finding
given by the trial court as a whole. The
revisionist could not establish any error,
mistake regarding facts or applicability of
law applied by the trial court. Thus, on the
basis of the aforesaid discussion, this Court
is of the opinion that the trial court's
judgment is liable to be affirmed. The
revision preferred by the defendant tenant
has no merit and is liable to be dismissed
with costs.

ORDER

34. The revision is dismissed with
costs.

35. Let the lower court record be sent
back to the District Judge, Bareilly with a
copy of this judgment.

36. The respondent land-lord is
entitled to execute the judgment and decree
of the lower court and this Court as well.
----------
(2023) 4 ILRA 153
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 145 of 2008

Ajay Kumar ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Virendra Singh, Ashwani Kumar Srivastava,
Sharad Kumar Vaish

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- Indian Penal Code.1860 - Sections 457,
154 INDIAN LAW REPORTS ALLAHABAD SERIES
380 & 411, - Probation of Offender Act,
1958 - Sections 4 & 5 - Criminal Revision -
unnamed FIR u/s 457, 380 of IPC - investigation
- alleged stolen generator was recovered from
the joint possession of revisionist & anr. accused
- charge-sheet framed u/s 457, 380, 411 of IPC
- trial court acquitted accused for offence
punishable u/s 457 & 380 of IPC - but, punished
them with rigorous imprisonment for one year
u/s 411 of PC - Revisionist has no criminal
history apart from this case - revisionist
preferred revision U/s 397/401 of Cr.P.C.
confined himself only with respect to the order
of sentence passed by learned trial court, on the
ground that, trial court neither invoked the
provisions of Probation of Offenders Act, nor the
provisions u/s 360 Cr.P.C. while sentencing the
accused-revisionist - as such trial court is
violative of provisions u/s 361 of Cr.P.C. - Court
finds that, Trial Court did not considered the fact
that this is a fist case against the accused and
he is not convicted earlier and merely on the
ground that the generator, which was too costly
was recovered from the possession of accusedappellant, the benefit of section 4 of Act, 1958
is withheld - hence, revisionist is entitled to
granted the benefit of section 4 of the Probation
of Offenders Act, - direction issued accordingly.
(Para - 11, 12, 13)

Criminal
Revision
Dismissed
with
directions. (E-11)

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Instant revision is filed under
Section
397/401
Cr.P.C.
against
the
judgment and order dated 8.02.2008 passed
by
Additional
sessions
Judge/Special
Judge, Lucknow in Criminal Appeal No.
208 of 2000, Guddu @ Ratan Lal and
another Vs. State of U.P. dismissing the
appeal preferred against the judgment and
order dated 19.10.2000 passed by Vth
Additional
Chief
Judicial
Magistrate,
Lucknow in case No. 1793 of 1996 under
Sections
457,
380
and
411
I.P.C.
sentencing revisionist to undergo one
rigorous imprisonment under Section 411
I.P.C.

2. As per prosecution story, F.I.R.
was lodged against unknown persons on
the ground that someone has stolen Shri
Ram Honda Model EBK 1200 Engine
No.0899537 Generator set of red colour by
breaking the door of the shop in the night
of 10/11-03-1996. A report was registered
at police station on 21.03.1996 in crime
No. 81 of 1996 under Section 457 and 380
I.P.C.

3. The investigation was conducted by
investigating
officer-Y.P.
Singh,
who
recovered the alleged generator from the
joint possession of Arun Kumar, Guddu
and Ajay Kumar and prepared recovery
memo thereof, recorded the statements of
witnesses, prepared site plan and submitted
charge-sheet under Section 457, 380 and
411 I.P.C. The trial court framed the
charges
under
the
above
mentioned
Sections and read over to accused to which
the accused abjured from the charges and
claimed to be tried.

4. Prosecution adduced P.W.1-Rajendra
Kumar
Agarwal
(complainant),
P.W.2Constable Ghanshyam Yadav, P.W.3-S.I.,
Bedhadak Singh, P.W.4-S.I., Yogendra Pal
Singh, investigating officer and P.W.5- R.K.
Singh, Station Officer.

5. Statements of accused were recorded
under Section 313 Cr.P.C. wherein the
accused denied all the allegations levelled
against them and stated that nothing
incriminating has been recovered from their
possession and witnesses have wrongly
implicated them and the false evidence is
given by witnesses against them. No defence
witness was produced, however, opportunity
to produce defence evidence was provided.

6. After hearing the arguments on
behalf of the accused and ADGC, learned
4 All. Ajay Kumar Vs. State of U.P.
155
trial court acquitted the accused Guddu and
Ajay Kumar for the offences punishable
under Section 457 and 380 I.P.C and
convicted them under Section 411 I.P.C.
and
punished
them
with
rigorous
imprisonment for one year. It is also
mentioned in the operative portion of the
judgment that the accused have remained in
jail since 22.03.1996 to 11.04.1996 and the
period already undergone in jail shall be
adjusted towards the sentence.

7. Learned counsel for the revisionist
submitted that the revisionist is not
challenging the impugned order confirming
the order of conviction passed by the Trial
Court and he confined himself only with
respect to the order of sentence passed by
the learned trial court. It is further
submitted that revisionist is not a previous
convict and he has no criminal history apart
from this case, therefore, in view of the
above facts and circumstances, trial court
ought to have invoked the provisions of
Probation of Offenders Act, 1958. It is
submitted that learned Trial Court neither
invoked the provisions of Probation of
Offenders Act nor the provisions under
Section 360 Cr.P.C. while sentencing the
accused-revisionist. Trial Court has not
given any specific reason why the present
accused is not given the benefit of above
mentioned
provisions.
Therefore,
the
judgment and order passed by the learned
Trial Court suffers from serious illegality
as the order of learned trial court is
violative of provisions under Section 361
Cr.P.C., therefore, the impugned judgment
is liable to be set-aside.

8. Section 361 Cr.P.C. is read as under:-

"361. Special reasons to be
recorded in certain cases -- Where in any
case the Court could have dealt with

(a) an accused person 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."

9. From the perusal of the judgment,
it transpires that learned Trial Court, while
dealing with the sentence recorded that the
Generator
Set,
recovered
from
the
possession of accused was very costly and,
therefore, the benefit of Section 4 of
Probation of Offenders Act cannot be given
to the accused.

10. Learned AGA appearing on behalf
of the State did not dispute the fact that
accused-revisionist is a first time offender
and was not previously convicted in any
other case and the time period which has
lapsed since the date of incident, the benefit
of Section 4 of the Probation of Offenders
Act can be granted in this case.

11. It is apparent from the impugned
judgment
that
learned
Trial
Court
mentioned the special reason to deny the
benefit of section 4 of the probation of
offenders act to the revisionist but learned
trial court did not considered the fact that
this is a first case against the accused and
he is not convicted earlier and merely on
the ground that the generator, which was
too
costly
was
recovered
from
the
possession of accused-appellant, the benefit
of section 4 of the probation of offenders
act is withheld. Hence, learned learned trial
court did not consider the facts and
circumstances of the case as a whole, the
156 INDIAN LAW REPORTS ALLAHABAD SERIES
age of revisionist, the possibility for his
improvement and passed the judgment
without considering the above mentioned
circumstances.

12. In view of the facts and
circumstances and considering the scope of
Section 4 of the Probation of Offenders
Act, and the time period which has elapsed
since the date of occurrence, the Revision
is according dismissed by upholding the
conviction
of
accused-revisionist.
However, he is granted the benefit of
Section 4 of the Probation of Offenders
Act.

13. Revisionist is directed to appear
before the court concerned and CJM
concerned is directed to extend the benefit
of Section 4 of the Probation of Offenders
Act to the accused-revisionist and release
him on probation on the execution of
personal bond and sureties to the tune of
Rs. 20,000/- (Twenty thousand) along with
undertaking to keep peace and tranquility
in society and not to commit any offence in
future for one year.

14. Accused-revisionist shall appear
before the CJM within a period of one
month from today for compliance of the
present order.

15. As provided under Section 5 of
the Probation of Offenders Act, revisionist
shall pay a compensation of Rs. 15,000/-
(Fifteen thousand) in DLSA within one
month from today.

16. In case of breach of any of the
said condition, the accused-revisionist shall
subject himself to undergo the sentence.

17. Let the copy of the judgment as
well as lower court record be transmitted to
concerned trial forthwith for necessary
compliance.
----------
(2023) 4 ILRA 156
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 338 of 2009

Ali Sher ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Saurabh Srivastava, Abdul Samad

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- India Penal Code, 1860 - Sections 326 &
304(2) - India Evidence Act,1872 -
Section 106 - Probation of Offender Act,
1958 - Sections - 4 & 5: : - Criminal Revision
- an FIR u/s 326 of IPC - investigation - chargesheet - conviction & sentenced u/s 326 IPC with
simple imprisonment of 3 year with fine - court
finds that, victim expressed her desire to divorce
her husband and re-marry - and the trial court
found the accused guilty based on the Victim's
testimony and medical evidence - the issues
revolved around the assault on the victim, the
credibility of witnesses, and the applicability of
the Probation of Offenders Act, - accused is not
previously convicted, nor other case apart from
this case, is registered against him - The trial
court while dealing with the sentence did not
discussed why the benefit of Section 4 of
Probation of Offenders Act, 1958 cannot be
given to the accused - hence, The court upheld
the conviction of the accused but, granted the
benefit of section 4 of Probation of offenders
Act, 1958, directing to the accused to appear
before
the
Chief
judicial
Magistrate
for
compliance and payment of compensation -