# Chhote Lal & Ors. Revisionists v. State of U.P

- **Citation:** (2020) 8 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-19
- **Case number:** Criminal Revision No. 1149 of 2004
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-lal-ors-revisionists-v-state-of-u-p-45343
- **Pages:** 8

## Headnote

Probation of Offenders Act - Section 4 -
Duty of the Court to award proper
sentence-regard to nature and manner
it was executed-benefit of probation to
be given-punishment of Court below
upheld - Revisionists however not send
to jail-benefit of section 4 - Revision
disposed.

Held, In this instant case, the court below
has not considered the probation law,
although, the revisionists were only convicted
for the offence under Sections 323, 324 and
325 read with Section 34 I.P.C. for which the
accused-revisionists were convicted for the
maximum period of four years. 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 1989 and this revision is
pending since 2004 and therefore, no purpose
of justice will be served if the revisionists are
sent to jail to undergo the terms of sentence
after lapse of such long time.(para 12)

Revision disposed. (E-9)

Cases referred:-

1.Subhash Chand & ors. Vs St. of U.P. (2015
Law Suit (All) 1343)

## Text

642 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order of sentence is modified.
Accused-revisionist shall under go for a
period
of
three
years'
rigorous
imprisonment and he will also pay fine
already imposed by trial court concerned
and under the condition as imposed by
trial
Court.
Period
of
detention
undergone by accused-revisionist shall be
set
off
against
the
sentence
of
imprisonment in accordance with law.

28. Copy of this judgment along
with the lower court record be sent back
forthwith for information and compliance
through District Judge, concerned.
----------
(2020)08ILR A642
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.11.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1149 of 2004

Chhote Lal & Ors. ...Revisionists
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionists:
Sri Sudhakar Pandey, Sri Ajeet Kumar
Singh, Sri Surya Pratap Singh Parmar

Counsel for the Opposite Party:
A.G.A.

Probation of Offenders Act - Section 4 -
Duty of the Court to award proper
sentence-regard to nature and manner
it was executed-benefit of probation to
be given-punishment of Court below
upheld - Revisionists however not send
to jail-benefit of section 4 - Revision
disposed.

Held, In this instant case, the court below
has not considered the probation law,
although, the revisionists were only convicted
for the offence under Sections 323, 324 and
325 read with Section 34 I.P.C. for which the
accused-revisionists were convicted for the
maximum period of four years. 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 1989 and this revision is
pending since 2004 and therefore, no purpose
of justice will be served if the revisionists are
sent to jail to undergo the terms of sentence
after lapse of such long time.(para 12)

Revision disposed. (E-9)

Cases referred:-

1.Subhash Chand & ors. Vs St. of U.P. (2015
Law Suit (All) 1343)

2. Criminal Revision No. 1319 of 1999
(Hargovind & ors. Vs. St. of U.P.)

3.Maharashtra Vs. Jagmohan Singh Kuldip
Singh Anand & ors. (2004) 7 SCC 659

4. Jagat Pal Singh & ors. Vs. St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Surya Pratap Singh
Parmar, learned counsel appearing on
behalf of revisionists no. 1 and 2, Sri
Ravi Prakash Singh, learned A.G.A. and
perused the record.

2. This court vide order dated
05.01.2019 for securing presence of the
8 All. Chhote Lal & Ors. Vs. State of U.P.
643
revisionists has issued the bailable
warrant against them.

3. In compliance of that warrant,
the
report
of
the
Chief
Judicial
Magistrate, Ballia dated 27.05.2019 has
been received in which it has been
mentioned that the revisionist namely
Nand Kishor son of Sri Suga has died, as
such, the revision is abated so far as
revisionist Nand Kishor is concerned.

4. This revision has been filed by
Chhote Lal, Shiv Kumar and Nand
Kishor (now dead) against the judgment
of
conviction
and
sentence
dated
24.08.2000, passed by Additional Chief
Judicial Magistrate-II, Ballia, in Criminal
Case No. 1346 of 2000, under Sections
323, 324, 325 I.P.C., Police Station
Sahatwar, District Ballia by which
accused-revisionist Chhote Lal has been
convicted for the offence under Sections
323 and 324/34 I.P.C., whereas, the
accused-revisionist Shiv Kumar has been
convicted for offence under Sections 323,
324 and 325 read with Section 34 I.P.C.

5.

Learned
counsel
for
the
revisionist has submitted that instead of
pressing the revision on merits, he has
prayed that considering the facts and
circumstances of the case and legal
provisions,
the
conviction
may be
maintained and the accused-revisionists
may be given benefit of probation.
Learned counsel for the revisionists has
further submitted that both the parties
belongs to the same village and on
account of a dispute with regard to Abadi
Land, in spur of the moment and in
sudden quarrel the whole incident took
place. Further submission is that one of
the accused Chhote Lal was assigned
Farsa and he has said to have caused
injury by Farsa whereas the other
accused namely Shiv Kumar was having
Lathi by which the injuries are said to
have been caused. So far as the offence
under Section 325 I.P.C. is concerned,
there is only fracture on wrist joint which
is on the non vital part of the body. The
case belongs to the year 1989 and also
considering
that
presently
the
revisionists-accued persons are about 65
years in age, hence, they may be released
on probation.

6. Learned A.G.A. has opposed the
prayer and has submitted that in the
alleged incident, grievous injuries were
caused and on the basis of evidence on
record, the accused persons have been
sentenced appropriately.

7. Against the judgment of the trial
court, the appeal was also preferred by
the
revisionists-accused
persons
numbered as Criminal Appeal No. 12 of
2000 and the appeal was dismissed by
the impugned judgment of the lower
appellate court dated 10.03.2004, passed
by Additional Sessions Judge, Court No.
1, Ballia, the judgment of the trial court
was upheld.

8. So far as conviction under
Sections 323, 324 and 325 read with
Section 34 I.P.C. are concerned, learned
counsel to the revisionists requested that
looking to the fact that revision is
pending
since
2004
and
awarded
sentence is not more than four years,
revisionists may be released on probation
for maintaining peace and good behavior
for specified period. Learned counsel for
the revisionist has further argued that the
effect of Sections 3 and 4 of the
Probation of Offenders Act, 1958, in the
background of what is stated in Section
644 INDIAN LAW REPORTS ALLAHABAD SERIES
360 of the Code of Criminal Procedure,
1973, has not been kept in view. Learned
counsel for the revisionists has also relied
upon the judgment in the case of
Subhash Chand & others Vs State of UP
(2015 Law Suit (All) 1343) and the
judgment 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."

9. 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 subsection (1) is made, the court may, if it is
8 All. Chhote Lal & Ors. Vs. State of U.P.
645
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.

10. 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
646 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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-
8 All. Chhote Lal & Ors. Vs. State of U.P.
647

(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."

11. 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 and there is no criminal
antecedent of the accused person.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.

12. In this instant case, the court
below has not considered the probation
law, although, the revisionists were only
convicted for the offence under Sections
323, 324 and 325 read with Section 34
I.P.C. for which the accused-revisionists
were convicted for the maximum period
of four years. 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 1989 and this revision is pending
since 2004 and therefore, no purpose of
justice will be served if the revisionists
are sent to jail to undergo the terms of
sentence after lapse of such long time.

13. In Subhash Chand Case
(supra), this court 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:

30.
"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
648 INDIAN LAW REPORTS ALLAHABAD SERIES
General of this Court is directed to
circulate copy of this Judgement 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 Judgement. 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."

14. In addition to the above
judgment of this Court, I perused the
judgment of Hon'ble the Apex Court in
State of Maharashtra Vs. Jagmohan
Singh Kuldip Singh Anand & others
(2004) 7 SCC 659 in which, giving the
benefit of Probation of Offenders Act,
1958, the Court has observed as below:

"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. 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, 452, 506
IPC 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.

16. In the light of above discussion,
I find no illegality, irregularity or
impropriety nor there is any jurisdictional
error in the impugned Judgment and I am
of
the
considered
view
that
the
conviction recorded by the court below
under Sections 323, 324 and 325 read
with Section 34 I.P.C. and upheld by the
learned appellate court below is not
required to be disturbed. Consequently,
the impugned judgment of conviction
and sentence is upheld.

17. However, instead of sending the
revisinists namely Chhote Lal and Shiv
Kumar to jail, they shall get the benefit
of Section 4 of the Probation of
Offenders
Act.
Consequently,
the
revisionists shall file two sureties to the
tune
of
Rs.25,000/-
coupled
with
personal bonds to the effect that they
8 All. Golu Vs. State of U.P. & Anr.
649
shall not commit any offence and shall
observe
good
behaviour
and
shall
maintain peace during the period of one
year. If there is breach of any of the
conditions, they will subject themselves
to
undergo
sentence
before
the
Magistrate. The bonds and sureties
aforesaid be filed by the accused persons
within two months from the date of the
Judgment as per law and Rules.

18. Accordingly, the revision is
disposed of finally.

19. Let a certified copy of this order
be sent to the court concerned for
compliance.
----------
(2020)08ILR A649
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.06.2020

BEFORE

THE HON'BLE J.J.MUNIR, J.

Criminal Revision No. 2190 of 2019

Golu ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sunil Kumar Tripathi

Counsel for the Opposite Parties:
A.G.A.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015-all coaccused-adult-admitted
to
bailincluding prime accused-no justification
to refuse bail.

Revision allowed. (E-9)

Cases referred:-
1.Dharmendra (Juvenile) Vs. St. of U.P. &
ors., 2018 (7) ADJ 864,

(Delivered by Hon'ble J.J.Munir, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A. appearing
on behalf of the State.

2. This revision is directed against an
order of Ms. Renu Rao, learned Additional
Sessions Judge, Hapur dated 29.04.2019
dismissing Criminal Appeal No. 26 of 2019,
under Section 102 of the Juvenile Justice (Care
and Protection of Children) Act, 2015
(hereinafter referred to as 'the Act') preferred
by the revisionist from an order of the Juvenile
Justice Board, Hapur rejecting the revisionist's
bail plea in Case Crime No. 283 of 2018,
under Sections 307, 323, 504, 506 I.P.C.

3. The FIR giving rise to the crime
briefly says that the informant's son was
weighing goods at his shop in the
evening hours at 8.00 o'clock when
Shiva,
Kamal,
Anand
and
Golu
(revisionist) all sons of Suraj alighted
there and battered Vishal. Amongst them
Shiva assaulted Vishal with a knife blow
to his abdomen, injuring him. The report
shows that the victim had been rushed to
the hospital for medical aid. The bail plea
of the revisionists that came up before
the Juvenile Justice Board was rejected
going by the Social Investigation Report
which shows that there was lack of
discipline and control in the family. The
revisionist preferred an appeal to the
learned Sessions Judge which too has
been dismissed by the order impugned.

4. Aggrieved, this revision has been filed.

5. The submission of the learned
counsel for the revisionist is that of all