# Kapil Dev Pandey Revisionist v. State of U.P. 510 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 7 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-10
- **Case number:** Criminal Revision No. 432 of 2009
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-dev-pandey-revisionist-v-state-of-u-p-510-indian-law-reports-allahabad-50367
- **Pages:** 9

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 360 - Order to release
on probation of good conduct or after
admonition, Section 361 - Special reasons
to be recorded in certain cases - Where in
any case the Court could have dealt with,
Probation
of
Offenders
Act,
1958
-
Sections 3 - Power of court to release
certain
offenders
after
admonition,
Section 4 - Power of court to release
certain offenders on probation of good
conduct, Uttar Pradesh First Offenders'
Probation Act, 1938 - Sections 3 - Power
of court to release certain offenders after
admonition, Section 4 - Power of court to
release certain offenders on probation of
good
conduct
-
Railway
Property
(Unlawful Possession) Act, 1966 - Section
3
-
Penalty
for
theft,
dishonest
misappropriation or unlawful possession
of railway property.

Two individuals arrested - carrying heavy
articles - FIR lodged under Section 3 of Railway
Property Act - case of year 1996 - more than 26
years passed - accused-revisionist suffered
matter for past three decades - no other pre or
post criminal antecedent of accused revisionist -
not appropriate to send revisionist in jail. (Para
-3,15)

HELD:- Court finds no illegality, perversity, or
infirmity in conviction part of order passed by
courts. Sentence inflicted on accused-revisionist
requires
modification.
Revisionist-accused's
conviction upheld. Sentence modified to include
Section 4 of the UP Probation of Offenders Act.
Released on probation with condition
of
maintaining peace and good conduct for one
year. If breached, revisionist will face same
sentence as directed by courts. (Para - 16,17)

Revision
partly
allowed
with
modifications. (E-7)

List of Cases cited:

## Text

7 All. Kapil Dev Pandey Vs. State of U.P.
509
any explosive substance, intending to
cause, or knowing it to be likely that he will
thereby cause, the destruction of any
building which is ordinarily used as a place
of worship or as a human dwelling or as a
place for the custody of property, shall be
punished with imprisonment for life, or
with imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine."

28. From perusal of both the sections
it is quite clear that if any damage is caused
to any property to the amount of Rs.100/-
or upwards the accused shall be punished
under Section 435 IPC and if the
destruction by fire or any explosive
substance has been caused to any building
which is ordinarily used as a place of
worship or as a human dwelling or as a
place for the custody of property, the
accused shall be punished under Section
436 IPC.

29. In this case the informant PW-1
has accepted that she used to tie cattle in
the alleged hut, hence according to this
Court even if for the sake of argument it is
accepted that the offence had been caused
by the accused persons, it would not be an
offence punishable under Section 436 IPC.
More so, if accused persons had permitted
to save the cattle and if some materials
would also have been kept there, the same
would also have been taken out by the
informant. It has already been said that no
material had been produced during the trial
to prove that some grains, bran and money
etc. were there.

30. In Jashmero Vs. State of Punjab,
1980 CrLJ (NOC) 46 (P&H) it has been
held that a structure made straw and not of
bricks and mortar may be considered a
building if it has got the necessary furnishings
needed for a building such as door bars etc.
An ordinary thatched shed resting on
bamboos or wooden or brick pillars having
no doors etc. cannot be treated as a building
within the meaning of the terms used in
Section 436 IPC but as the bullocks therein
died in consequence of the fire, the accused
could be convicted under Section 435 IPC.
Here no harm was being caused to any of the
cattle to the informant and it has not been
proved that any material of the informant had
been burnt in the alleged arsoning.

31. On the basis of above discussion,
this Court is of the view that the prosecution
has not able to prove the case and charge
against the accused persons beyond the
reasonable doubt. The revisionists are entitled
to benefit of doubt and the order of
conviction and sentencing passed by the trial
court and the appellate court as well are liable
to be quashed.

32. Accordingly, this revision succeeds
and is allowed. The impugned judgments and
orders of conviction and sentencing dated
29.10.1992 and 27.03.1993 passed by the
trial court as well as by the appellate court,
respectively are quashed.

33. A copy of this order be sent to the
court below for necessary compliance, if any.
----------
(2023) 7 ILRA 509
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 10.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 432 of 2009

Kapil Dev Pandey ...Revisionist
Versus
State of U.P. ...Respondent
510 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Naveen Kumar Pandey, Dinesh Kr. Chaudhary

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 360 - Order to release
on probation of good conduct or after
admonition, Section 361 - Special reasons
to be recorded in certain cases - Where in
any case the Court could have dealt with,
Probation
of
Offenders
Act,
1958
-
Sections 3 - Power of court to release
certain
offenders
after
admonition,
Section 4 - Power of court to release
certain offenders on probation of good
conduct, Uttar Pradesh First Offenders'
Probation Act, 1938 - Sections 3 - Power
of court to release certain offenders after
admonition, Section 4 - Power of court to
release certain offenders on probation of
good
conduct
-
Railway
Property
(Unlawful Possession) Act, 1966 - Section
3
-
Penalty
for
theft,
dishonest
misappropriation or unlawful possession
of railway property.

Two individuals arrested - carrying heavy
articles - FIR lodged under Section 3 of Railway
Property Act - case of year 1996 - more than 26
years passed - accused-revisionist suffered
matter for past three decades - no other pre or
post criminal antecedent of accused revisionist -
not appropriate to send revisionist in jail. (Para
-3,15)

HELD:- Court finds no illegality, perversity, or
infirmity in conviction part of order passed by
courts. Sentence inflicted on accused-revisionist
requires
modification.
Revisionist-accused's
conviction upheld. Sentence modified to include
Section 4 of the UP Probation of Offenders Act.
Released on probation with condition
of
maintaining peace and good conduct for one
year. If breached, revisionist will face same
sentence as directed by courts. (Para - 16,17)

Revision
partly
allowed
with
modifications. (E-7)

List of Cases cited:
1. St. of U.P. Vs Misri Lal & ors. ,1982 CrLJ 1420

2. Sitaram Paswan & anr. Vs St. of Bihar, AIR
2005 SC 3534

3. Mohd. Hashim Vs St. of U.P & ors. , AIR 2017
SC 660

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard learned counsel for the
revisionist, learned AGA and perused the
records.

2. This criminal revision has been
filed against the judgment and order dated
24.04.2009 passed by the ACM (Northern
Railway), Gonda in Criminal Case No.371
of 1997 (State Vs. Kapil Dev Pandey and
another) as well as the judgment and order
dated 07.08.2009 passed by the Additional
Sessions Judge, Court No.6, Gonda in
Criminal Appeal No.14 of 2009 (Kapil Dev
Pandey Vs. State of UP).

3. The brief facts of the case are that
on 03.10.1996 the informant, Kailash
Prasad, deployed as gangman gang no.13
as gateman at gate no.113-C, at about 19:30
hour saw two persons in suspicious
condition bringing some heavy article
towards the gate. Upon some doubt, when
he asked them to stop, both of them tried to
run away but were caught by him with the
help of Harishchandra - gangman, gang
no.13 and Baijnath, gateman gate no.113-C.
Upon being inquired, they both told their
names as Kapil Dev Pandey and Ramesh
Kumar Shukla and from the possession of
Kapil Dev Pandey IRS(T)5OR written one
bearing plate and from the other accused
one simple bearing plate was recovered.
The accused persons informed that the
recovered articles were stolen from railway
line near the bridge which was confirmed
7 All. Kapil Dev Pandey Vs. State of U.P.
511
by the informant. Thereafter FIR was
lodged at Crime No.05 of 1996, under
Section 3 Railway Property (Unlawful
Possession) Act, 1966 (for short 'the Act,
1966'), Police Station Tulsipur, District
Gonda (Balrampur). After investigation
charge sheet was submitted, charge was
framed under Section 3 of the Act, 1966
against the accused which was denied by
them and they sought for trial.

4. During the trial prosecution
adduced oral and documentary evidence
and
after
closure
of
evidence
their
statement under Section 313 CrPC was
recorded and after hearing the argument,
the accuseds were convicted and sentenced
on 24.04.2009 with simple imprisonment of
one year each and fine of Rs.1,500/- each
for committing an offence under Section 3
of the Act, 1966.

5. The order dated 24.04.2009 was
challenged by the revisionist, Kapil Dev
Pandey before Additional Sessions Judge,
Court
No.6,
Gonda
(Balrampur)
in
Criminal Appeal No.14 of 2009 which was
dismissed and the judgment and order
dated 24.04.2009 was confirmed. Hence,
this criminal revision has been preferred.

6. Learned counsel for revisionist
submitted that the impugned judgement and
order dated 24.04.2009 passed by trial
court and the order dated 07.08.2009
passed by the appellate court are illegal,
perverse and against the facts and evidence
on record. The courts below have failed to
appreciate the defence evidence which was
more probable than that of prosecution
evidence.
The
appellate
court
has
committed illegality in maintaining the
order of conviction passed by the trial
court. It is also submitted that the appellate
court as well as the trial court both have
committed manifest error of law in refusing
the benefit of Probation of Offenders Act to
the revisionist without recording any reason
for the same. Learned counsel for the
revisionist further submitted that the
revisionist was on bail during trial and
never misused the liberty of bail. However,
after arguing at some length, learned
counsel for the revisionist submits that the
revisionist may be extended the benefit of
UP Probation of Offenders Act. He has
further submitted that during the pendency
of revision, there is no criminal antecedents
and the revisionist is living as a law abiding
citizen.

7. Learned AGA opposed the revision
and submitted that there is no material
irregularity or illegality in the impugned
judgments and orders of the courts below
and keeping in view the evidence on
record,
the
revisionist
was
rightly
convicted.

8. Section 360 and 361 of the Code of
Criminal Procedure are relevant for the
purpose of probation to first offenders.
Both these sections are reproduced as
under:-

"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
512 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
7 All. Kapil Dev Pandey Vs. State of U.P.
513
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 a 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.

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, 135 but
has not done so, it shall record in its
judgment the special reasons for not having
done so."

9. There is one central Legislation on
the subject in the name of "Probation of
Offenders Act, 1958", relevant Sections 3
and 4 thereof are extracted hereunder:-

"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.

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
514 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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. There is one more legislation on
the subject namely "Uttar Pradesh First
Offenders' Probation Act, 1938". Sections 3
and 4 of the Act are reproduced herein
below:-

"3. Power of court to release certain
offenders after admonition.-In any case in
which a person is found guilty of the offences
of theft, dishonesty, misappropriation or
cheating, punishable under the Indian Penal
Code, or of any offence punishable with not
more than two years imprisonment and no
previous conviction is proved against him, the
court by which he is found guilty 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. Power of court to release certain
offenders on probation of good conduct.-
(1) When any person 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, antecedents or physical or mental
condition 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 the court shall not direct
the release of an offender under this section
unless it is satisfied that the offender, or his
surety, has a fixed place of abode and
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 :

Provided also that if a person under
twenty-one years of age is convicted of any
offence under the Indian Penal Code, or
any other enactments prescribed in this
7 All. Kapil Dev Pandey Vs. State of U.P.
515
behalf under rules made by the State
Government, which is punishable with
imprisonment not exceeding six months, the
court shall take action under this section
unless, for special reasons to be recorded
in writing, it does not consider it proper to
do so.

(2) Where the offender ordered to be
released under sub-section (1) is under
twenty-four years of age, the court may
make a supervision order directing that
such
offender
shall
be
under
the
supervision of such probation officer as
may be named in the order during the
period specified therein and imposing such
other
conditions
for
securing
such
supervision as may be specified in the
order:

Provided that the period so specified
shall not extend beyond the date on which,
in the opinion of the court, the offender will
attain the age of twenty-five years.

(3) A court making an order under
sub-section (2) shall require the offender,
before he is released to enter into a bond,
with or without sureties, to observe the
condition
with
respect
to
residence,
abstention from intoxicants and any other
matters as the court may, having regard to
the particular circumstances of the case,
consider fit to impose for preventing a
repetition of the same offence or a
commission of other offences by the
offender.

(4) A court making an order under
sub-section (2) shall furnish to the offender
and the sureties, if any, a notice in writing
stating in simple terms the conditions of the
bond.

A perusal of these legislations will
leave a student of Law in a confused state
of mind. All these legislations are dealing
with the same subject and on first sight
looks encroaching each other. Looking
closely, one may get that Section 360 of the
Code relates only to persons not under
twenty one years of age is convicted for an
offence punishable with fine 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 for
an offence not punishable with death or
imprisonment for life, and no previous
conviction is proved, may be released on
probation, taking into consideration the
facts and circumstances of the case,
character of the offender and the gravity of
the offence committed by him. Section 4 of
the Probation of Offenders Act is having a
much wider scope as it applies to any
person found guilty of having committed an
offence not punishable with death or
imprisonment for life. If I look further deep
into Section 360 CrPC we will find that in
sub-section (10) it has been provided that
nothing in this section shall affect the
provisions of the Probation of Offenders
Act."

11. A Division Bench of this Court in
State of Uttar Pradesh Vs. Misri Lal and
others, 1982 CrLJ 1420 held as under:-

"26. ...The application of Section 360
in Utter Pradesh was taken away by an
Ordinance of the year 1975. The Ordinance
was repealed and replaced by the Criminal
P.C. (Uttar Pradesh Amendment) Act, No.
16 of 1976. This Act received the assent of
the President on 30-4-1975 and published
in the Utter Pradesh Extraordinary Gazette
dated 1-5-1976. Section 12 of this Act
repealed the Ordinance and laid down that
notwithstanding such repeal, anything done
or any action taken under the Ordinance
shall be deemed to have been done or taken
under the provisions of this Act as if this
Act had come into force on November, 28,
1975. The learned trial judge decided the
case on 2-2-1976. Section 10 of the
516 INDIAN LAW REPORTS ALLAHABAD SERIES
Amending Act No. 16 of 1976 amended
S.484 of the Code and inserted the
following clause (e) after clause (d) :-

"(e) ...the United Provinces First
Offenders' Probation Act 1938......shall
continue in force in the State of Uttar
Pradesh .... and accordingly the provisions
of Section 360 of this Code shall not apply
to that State and the provisions of Section
361 shall apply with the substitution or
reference to the Central Acts named therein
by references to the corresponding Act in
force in that State".

Section 361 of the CrPC lays down
that where in any case the Court could
have dealt with an accused person under
Section 360 or under the provisions of the
Probation of Offenders Act, 1958, or a
youthful offender under the Children Act,
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
judgement the special reasons for not
having done so.

It follows from this provision read with
clause (e) of S.484 mentioned above, the
Court is required to record special reasons
for not extending the benefit of the
provisions of the Utter Pradesh First
Offenders' Probation Act, 1938."

12. Thus, provisions of UP Probation
of First Offenders' Act shall be followed, in
the geographical area where that has been
made applicable and not Section 360 of the
CrPC.
In
this
way
enforcement
of
Probation Act in some particular area, thus
excludes the applicability of the provisions
of Section 360 of the Code in that
particular area,however it will be the
bounden duty of the Court to consider as to
why not to proceed to grant the benefit of
Probation of Offenders Act, as provided
under Section 361 of the CrPC.

13. Coming to the point of desirability
of extending the benefit of Probation Act to
the accused/revisionist in Sitaram Paswan
and another Vs. 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. Thebenefit
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."

14. In Mohd. Hashim Vs. State of
U.P and others, AIR 2017 SC 660
Supreme
Court
opined
as
under:-
7 All. Rohit Yadav @ Ravi & Ors. Vs. State of U.P. & Anr.
517

"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."

15. This is a case of the year 1996 and
more than 26 years have passed. The incident
took place way back in the year 1996. The
accused-revisionist has suffered in matter for
past three decades and there is no other pre or
post criminal antecedent of the accused
revisionist. Therefore, it would not be
appropriate to send the revisionist in jail.

16. So far as the conviction part is
concerned, this Court does not find any
illegality, perversity or infirmity in the order
passed by the courts below but keeping in view
the discussion made above, the sentence
inflicted on the accused-revisionist requires
modification.

17. The revision is partly allowed with
following modifications:-

17.1. The conviction of the accusedrevisionist by courts below is upheld. The
sentence of revisionist-accused is modified to
the tune that he is provided benefit of Section 4
of the UP Probation of Offenders Act and is
released on probation on the condition that he
will keep peace and good conduct for one year
from today and shall file two sureties to the tune
of Rs.30,000/- each along with his personal
bond before the court below and also an
undertaking to the effect that he shall maintain
peace and good behaviour during the period of
one year from today. In case of breach of any of
the conditions mentioned above, the revisionist
will be subjected to undergo the sentence as
directed by the courts below. The bonds
aforesaid will be filed by the revisionist-accused
within one month from today, before the
District Probation Officer, Balrampur, UP under
the intimation to the concerned court.

18. A certified copy of the order be also
sent to the court concerned and District
Probation
Officer,
Balrampur,
UP
for
compliance.
----------
(2023) 7 ILRA 517
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 731 of 2023

Rohit Yadav @ Ravi & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists: