# Daya Ram & Ors. Revisionists (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 882
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Criminal Revision No. 3516 of 2005
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-ors-revisionists-in-jail-v-state-of-u-p-45322
- **Pages:** 8

## Headnote

Law-Code
of
Criminal
Procedure,1973-Sections397/401,Section 360 & Indian Penal
Code,1860-Sections
147,
323/149,325/149
&
Probation
of
Offenders Act,1958-Section 3 & 4-lower
court didnot pay heed to the provisions
u/s 3 & 4 of Probation of Offenders Act
and Section 360 Cr.P.C. while passing
sentences in trivial issues occurred in fit
of anger between the parties-lower court
failed to determine who was aggressor
on technical ground in the instant casehowever, power is granted to court to
release certain offenders on probation of
good conduct but the aforesaid beneficial
provision has been lost sight of which is
provided u/s 3 & 4 Probation of Offenders
Act and section 360,361 of Cr.P.C.-if it is
a fit case in which the accused should be
released on probation by directing them
to execute bond of one year for good
behaviour-Held-instead of sending the
revisionists to jail, they shall get benefit
of Section 4 of Probation of Offenders
Act.(Para 5 to 18)

Criminal Revision disposed of.(E-6)

List of Cases Cited:-

## Text

882 INDIAN LAW REPORTS ALLAHABAD SERIES
education certificates have been kept at par
and school first attended comes first.
Hence, in the present case, which was of
year 2017 i.e. after enforcement of above
Rules, the school first attended was with
priority.
The
citations
discussed
by
Juvenile Justice Justice Board, Auraiya,
relates with prior situations, whereas, the
present case is to be governed by new Act
and Rules made therein, as above. The
school first attended is with date of birth
10.8.1997 and that is to be taken as a date
of birth, for consideration of juvenility of
accused Atul Singh Sengar. On the basis
of it, learned Appellate Court of Sessions
Judge, Auraiya, has passed impugned
order that on the date of occurrence,
present revisionist was not juvenile in
conflict with law. Rather, he was major.
This determination of learned Appellate
Court is on the basis of material placed on
record
and
in
other
attending
circumstances, like younger brother may
not be elder to elder brother and juvenile
may not get married against the age of
marriage under majority Act. Under all
above
facts
and
circumstances,
this
revision merits its dismissal.

6. Dismissed, as such.
----------
(2020)02ILR A882

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3516 of 2005

Daya Ram & Ors. ...Revisionists (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Revisioniss:
Sri S.K. Tiwari

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections397/401,Section 360 & Indian Penal
Code,1860-Sections
147,
323/149,325/149
&
Probation
of
Offenders Act,1958-Section 3 & 4-lower
court didnot pay heed to the provisions
u/s 3 & 4 of Probation of Offenders Act
and Section 360 Cr.P.C. while passing
sentences in trivial issues occurred in fit
of anger between the parties-lower court
failed to determine who was aggressor
on technical ground in the instant casehowever, power is granted to court to
release certain offenders on probation of
good conduct but the aforesaid beneficial
provision has been lost sight of which is
provided u/s 3 & 4 Probation of Offenders
Act and section 360,361 of Cr.P.C.-if it is
a fit case in which the accused should be
released on probation by directing them
to execute bond of one year for good
behaviour-Held-instead of sending the
revisionists to jail, they shall get benefit
of Section 4 of Probation of Offenders
Act.(Para 5 to 18)

Criminal Revision disposed of.(E-6)

List of Cases Cited:-

1. Subhash Chand & Ors. Vs. St. Of U.P. {2015
Law Suit (All) 1343}

2. St. Of Mah. Vs. Jagmohan Singh Kuldip
Singh Anand & Ors.,(2004) 7 SCC 659

3. Jagat Pal Singh & Ors. Vs. St. Of Haryana,
AIR (2000) SC 3622

4. Soney Lal Pasi Vs. St. Of U.P., Cr.Rev. No.
2820 of 2003

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J).)
2 All. Daya Ram & Ors. Vs. State of U.P.
883

1. Heard Shri S.K. Tiwari, learned
counsel for the revisionists, learned AGA
for the State and perused the record.

2.

Learned
counsel
for
the
revisionists without entering into the
merits of the case, has confined his
argument to the effect that the revisionist
have been convicted for the offence under
sections 147, 323/149 and 325/149 IPC
and the maximum sentence which has
been awarded to the revisionist is one year.

3. This revision pertains to the
judgement passed by Additional Sessions
Judge/Fast Track Court No. 1, Gorakhpur
in Criminal Appeal No. 26 of 2005 by
which the appeal of the revisionist has
been dismissed which was filed against the
conviction and sentence dated 23.02.2005
passed
by
Judicial
Magistrate
Ist,
Gorakhpur in Criminal Case No. 49/02/88
(State Vs. Sahdev and others), under
sections 147, 323/149, 325/149 IPC, P.S.
Nautanwa, District Gorakhpur by which
revisionists were convicted and sentenced
for the offence under section 147 for 3
months simple imprisonment, for the
offence under section 323/149 IPC for six
months simple imprisonment and for the
offence under section 325/149 for one year
simple imprisonment. It is pertinent to
mention that the conviction and sentence
was maintained by the judgement in
appeal and the appeal was dismissed.

4 The submission of the learned
counsel is that the said criminal case in
respect of a criminal incident dated
28.10.1988 and it was in between related
parties through their ancestral and a
marpeet took place between the two and a
NCR was also lodged from the side of the
revisionists in which charge-sheet was
submitted. But prior to decision of this
Court, the same resulted in acquittal.
Further submission is that a reference of
that cross case finds mention in the
judgement of the lower court. It has been
further submitted by the learned counsel
that the case which was lodged from the
side of the revisionists resulted in acquittal
and the learned trial court failed to
determine who was aggressor on technical
ground. That the police papers which were
filed in this case from the side of the
revisionist were photostat and they were
not proved by the adducing evidence. He
has submitted that what ever was the
result, it was specifically requested from
the side of the revisionist all the accused
persons before the learned Magistrate for
giving benefit of probation in view of the
sentence passed by them, but the same was
not legally considered. Further submission
is that in the criminal incident the accused
persons were not assigned with any deadly
weapon and all the injuries were caused by
lathi and danda. It has been further
submitted that only two injured persons
sustained fracture and the fracture was not
on vital parts but on finger and elbow. The
further submission is that it is a case
pertaining to a criminal offence of the year
1998.

5. So far as conviction under
Sections 147, 323/149, 325/149 IPC are
concerned,
learned
counsel
to
the
revisionists requested that looking to the
fact that revision is pending since 2005
and awarded sentence is not more than one
year simple imprisonment, 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 360 of the
884 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

6. 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
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
2 All. Daya Ram & Ors. Vs. State of U.P.
885
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.

7. 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, 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
886 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

8. 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."

9. 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
2 All. Daya Ram & Ors. Vs. State of U.P.
887
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.

10. In this instant case, the court
below has not considered the probation
law, although, the revisionists were only
convicted for the offence under Sections
147, 323/149, 325/149 IPC for the
maximum period of one year. 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 1988 and this revision is pending
since 2005 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.

11. 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 appellate courts. The Registrar
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."
888 INDIAN LAW REPORTS ALLAHABAD SERIES

12. 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."

13. 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.

14. This Court vide order dated
28.11.2019 in case of Soney Lal Pasi Vs.
State of U.P. passed in Criminal Revision
No. 2820 of 2003 has also released the
accused persons convicted under sections
323, 324, 354 IPC on probation after
giving benefit of section 4 of the Probation
of Offenders Act.

15. 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
147,
323/149, 325/149 IPC and upheld by the
learned appellate court below is not
required to be disturbed. Consequently,
the impugned judgment of conviction
and sentence is upheld.

16. However, instead of sending
the revisionists namely Daya Ram, Sri
Ram and Bali Ram 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
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.

17. Accordingly, the revision is
disposed of finally.

18. Let a certified copy of this
order be sent alongwith lower court
record to the court concerned for
compliance.
----------
2 All. Vishwanath Vs. State of U.P. & Ors.
889
(2020)02ILR A889

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Criminal Revision No. 4629 of 2019

Vishwanath ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Harish Chandra Singh, Sri Anand Pal
Singh

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections
397/401Section 156(3),200 & Indian Penal
Code,1860-Section 376-challenge toapplication
u/s
156(3)-from
the
reading
of
application
cognizable
offence was made out-Court below
instead of issuing direction to lodge
FIR and investigate, illegally treated
as a complaint-application was filed
after two months-nothing could be
traced by medical examination etc.-
Concerned Court has not committed
procedural irregularity in exercise of
its discretionary jurisdiction under
section 156(3)-Hence, dismissed. (Para
61 to 65)

B. In its discretionary power,it is open
for the magistrate to direct the police
to register a criminal case u/s 154
Cr.P.C. and conduct investigation. At
the same time, it is open for the
Magistrate, where the facts of the
case and ends of justice so demand, to
take cognizance of the matter by
treating it as a complaint and proceed
for the "inquiry" u/s 200 and 202
Cr.P.C.(Para 55 to 60)
Criminal Revision dismissed.(E-6)

List of Cases Cited:

1. Lalita Kumari Vs. Govt. Of U.P. & Ors.,
(2014) 2 SCC 1

2. Mohammad Yousuf Vs. Smt. Afaq Jahan &
Anr.,(2006 ) 1 SCC 627

3. R.R. Chari Vs. St. Of U.P., (1951) SC 207

4. Narayandas Bhagwandas Madhavdas Vs. St.
Of W.B.,(1959) SC 1118

5. Gopal Das Sindhi & Ors. Vs. St. Of Assam &
Anr.,AIR (1961) SC 986

6. Superintendent and Remembrancer of Legal
Affairs,W.B.
Vs.Abani
Kumar
Banerjee,AIR
(1950) Calcutta,437

7. Suresh Chand Jain Vs. St. Of M.P. & Anr.,
(2001)2 SCC 628

8. Tula Ram Vs. Kishore Singh, (1977) 4 SCC
459

9. Ram Babu Gupta Vs. St. Of U.P. &
Ors.,(2001) 43 ACC 50

10. India Carat Pvt. Ltd. Vs. St. Of Karnataka
(1989)2 SCC 132

11. Sakiri Vasu Vs. St. Of U.P. & Ors., (2008) 2
SCC 409

12. Vinubhai Haribhai & Malaviya & Ors. Vs. St.
Of Guj.& Anr. (2019) SCC Online SC 1346

13. Devarapalli Laxminarayan Reddy & Ors.
Vs. V. Narayana Reddy & Ors.,(1976 ) 3
SCC 252

14. Vinay Tyagi Vs. Irshad Ali @ Deepak &
Ors.(2013) 5 SCC 762

15. Ramdev Food Products Pvt. Ltd. Vs. St.
Of Guj., (2015) 6 SCC 439

16. Anil Kumar Vs. M.K. Aiyappa, (2013) 10
SCC 705