# Manbodh @ Manoj & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-13
- **Case number:** Criminal Revision No. 318 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manbodh-manoj-ors-revisionists-v-state-of-u-p-anr-51069
- **Pages:** 5

## Headnote

Act,
1958
-
Impugned order-trial Court has convicted and
sentenced all the accused persons-the benefit of
Probation of Offenders Act, 1958 has been
granted to co-accused but the same has been
denied to the revisionists without assigning any
cogent reason- revisionists are also first
offenders- Trial Court's order to the extent that
it denies the benefit of Act, 1958 to the
revisionists, is unsustainable in law-set aside.

Revision partly allowed. (E-9)

## Text

444 INDIAN LAW REPORTS ALLAHABAD SERIES
1961] in Section III - "Duty to Opponent"
in para-34 states as under:-

"34. An Advocate shall not in any
way communicate or negotiate upon the
subject matter of controversy with any
party represented by an Advocate except
through that Advocate."

19. The action of learned counsel(s)
for the applicant of sending emails directly
to the Investigating Officer was not proper
and
cannot
be
appreciated.
The
investigating agency was duly represented
by its Counsel/Standing Counsel right from
the first day and were expected to comply
with any direction(s) given by the Court. If
the rival party needed to demonstrate that
the same has not been complied with, the
proper forum was to apprise the Court
when the matter was next placed. A
counsel cannot identify himself with his
client. He cannot interact directly with
agencies like Investigating Officer, etc.
unless and until ordered so by a court
particularly with regards to sub judice
proceedings.
Interacting
directly
with
agencies, Investigating Officers, etc., is not
the duty of a counsel appointed by an
accused. He is to represent him in Court
only. His work is to assist the Court. An
order passed by a Court is expected to be
followed and complied with by parties and
if any party has any grievance against the
other, the proper procedure is to apprise the
Court about it.

20.
Thus
this
Court
does
not
appreciate the said act/conduct of the
counsel(s) for the applicant to send emails
directly to the Investigating Officer in a
matter which was pending before the Court
and considers the objection of learned
counsel for the Enforcement Directorate to
be valid.

21. Pending application(s), if any,
shall stand disposed of.
----------
(2024) 11 ILRA 444
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.11.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 318 of 2024

Manbodh @ Manoj & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Ashutosh Shukla, Praveen Tripathi

Counsel for the Opposite Parties:
G.A., Vijay Kumar Tiwari

Probation
of
Offenders
Act,
1958
-
Impugned order-trial Court has convicted and
sentenced all the accused persons-the benefit of
Probation of Offenders Act, 1958 has been
granted to co-accused but the same has been
denied to the revisionists without assigning any
cogent reason- revisionists are also first
offenders- Trial Court's order to the extent that
it denies the benefit of Act, 1958 to the
revisionists, is unsustainable in law-set aside.

Revision partly allowed. (E-9)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

(I.A.
No.2
of
2024-
Delay
Condonation Application)

(I.A.
No.3
of
2024-
Recall
Application)

1.
This
is
an
application
for
condonation
of
delay
in
filing
an
application for recall of the order dated
29.03.2024 which has been filed by the
11 All. Manbodh @ Manoj & Ors. Vs. State of U.P. & Anr.
445
opposite party No. 2 - informant on the
ground that the revision has been allowed
without issuing notice to her and she was
not aware about passing of the order dated
29.03.2024 due to which a delay has
occurred in filing the application for recall
of the order. Recall of the order dated
29.03.2024 has been prayed on the ground
that this order has been passed without
giving an opportunity to her to oppose the
revision.

2. On 04.06.2024, the learned Counsel
for the revisionists had prayed for and was
granted three weeks' time for filing
objections against the applications but no
objections have been filed till date,
indicating that the revisionist does not
dispute
the
averments
made
in
the
applications and the affidavits filed in
support thereof.

3. Section 410(2) Cr.P.C. provides as
follows: -

"(2) No order under this section
shall be made to the prejudice of the accused
or other person unless he has had an
opportunity of being heard either personally
or by pleader in his own defence."

4. Apparently, it was mandatory for
this Court to have given an opportunity of
hearing to the informant and the order
dated 29.03.2024 whereby the revision has
been allowed without issuing notice to the
opposite party No. 2, is not sustainable in
law for this reason. Accordingly, both the
applications are allowed. The delay in
filing the recall application is condoned and
the order dated 29.03.2024 is recalled and
the revision is being decided afresh.

5. By means of the instant criminal
revision filed under Section 397/401
Cr.P.C, the revisionists have assailed the
validity of the judgment and order dated
18.03.2024 passed by the Additional
Session Judge/F.T.C-I, District Gonda in
Criminal Appeal No. 07/2023 (Manbodh
alias Manoj and others Vs. State of U.P.
and another) as well as the order dated
08.12.2022 passed by the Civil Judge
(J.D.)/F.T.C I Gonda in Case No. 180560
of 2018, in Case Crime No. 45/2018 under
Sections 498-A, 323, 504, 506 I.P.C and
3/4 of D.P. Act, P.S Wazirganj, District
Gonda, whereby the revisionists were
convicted and sentenced to 1 year simple
imprisonment and fine of Rs. 5,000/- under
Section
498-A,
six
months
simple
imprisonment under Section 323 I.P.C, six
months of simple imprisonment under
Section 504 I.P.C and six months simple
imprisonment and fine of Rs. 5,000/- under
Section 4 of D.P. Act.

6. The learned counsel for the
revisionists confined his submission to the
extent that the trial Court has convicted and
sentenced all the accused persons for
offences under Sections 498-A, 323, 504
I.P.C and Section 4 of Dowry Prohibition
Act. However, the benefit of Probation of
Offenders Act, 1958 has been granted to
co-accused Shiv Pyari but the same has
been denied to the revisionists without
assigning any cogent reason. The learned
counsel for the revisionists has further
submitted that the revisionists are also first
offenders, they have no criminal history
and they have been implicated in the
present case because of a matrimonial
dispute and proceedings for divorce are
already pending.

7. The learned counsel for the opposite
party No. 2 has submitted that a Criminal
Revision
cannot
be
allowed
without
summoning the trial Court's record as per
446 INDIAN LAW REPORTS ALLAHABAD SERIES
the statutory provision contained in Section
397 Cr.P.C. He has further submitted that
the record can only be summoned after
admission of the revision and the revision
has to be heard finally after receipt of the
record.

8. The learned counsel for the opposite
party No.2 has further submitted that the
conduct of the revisionists did not warrant
exercise of discretion by this Court in their
favour by granting the benefit of Probation
of Offenders Act, 1958 to them as the
revisionists had ill-treated the informant
and had neither provided due respect to her
nor has the informant been provided any
financial support, although a suit for
divorce between the informant and the
revisionist No. 1 is said to be pending.

9. Section 397 Cr.P.C. provides as
follows: -

"397. Calling for records to
exercise of powers of revision.-(1) The
High Court or any Sessions Judge may
call for and examine the record of any
proceeding before any inferior Criminal
Court situate within its or his local
jurisdiction for the purpose of satisfying
itself or himself as to the correctness,
legality or propriety of any finding,
sentence or order, recorded or passed, and
as to the regularity of any proceedings of
such inferior Court, and may, when calling
for such record, direct that the execution of
any sentence or order be suspended, and if
the accused is in confinement, that he be
released on bail or on his own bond
pending the examination of the record.

Explanation.-All
Magistrates,
whether Executive or Judicial, and whether
exercising
original
or
appellate
jurisdiction, shall be deemed to be inferior
to the Sessions Judge for the purposes of
this sub-section and of Section 398.

(2) The powers of revision
conferred by sub-section (1) shall not be
exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial
or other proceeding.

(3) If an application under this
section has been made by any person either
to the High Court or to the Sessions Judge,
no further application by the same person
shall be entertained by the other of them."

(Emphasis added)

10. Section 397 Cr.P.C. empowers the
High Court to call for and examine the
record of any proceeding before any
inferior Criminal Court to arrive at a
satisfaction as to the correctness, legality or
propriety of any finding, sentence or order,
recorded or passed, and as to the regularity
of any proceedings of such inferior Court.

11. The plane and simple meaning of
the words used in Section 397 Cr.P.C.
indicates that the High Court has discretion
to call for the record of any proceeding, if it
is necessary to arrive at a satisfaction as to
the correctness, legality or propriety of any
finding, sentence or order.

12. Although the revisionists have
challenged the order of conviction, the
learned counsel for the revisionists had
confined his submission to the extent that
the trial Court had declined the benefit of
the Probation of Offenders Act, 1958 to
revisionists whereas the same benefit was
granted to a co-accused Shiv Pyari.

13. Where the correctness, legality or
propriety of any finding or sentence is not
under challenge and the only challenge is to
the differential treatment between coaccused persons in the matter of granting
11 All. Manbodh @ Manoj & Ors. Vs. State of U.P. & Anr.
447
benefit of the Probation of Offenders Act
without assigning any cogent reason, which
is apparent from a bare perusal of the
impugned
order
itself,
there
is
no
requirement of calling for the trial Court's
record.

14. The learned Counsel for the
opposite party No. 2 did not dispute the
facts that the revisionists are first offenders
having no criminal history and that all the
accused persons have been held guilty of
the same set of offences. He merely
submitted that while considering the
request for grant of benefit of the Probation
of Offenders Act, this Court has to keep in
mind the conduct of the revisionists, who
had ill-treated the opposite party No.2 in
her matrimonial home and they are not
providing any monetary support to her.

15.
Before
dealing
with
this
submission, it would be appropriate to have
a look at Section 4(1) of the Probation of
Offenders Act, 1958 which provides 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."

16. Section 4(1) of the Probation of
Offenders Act, 1958 comes into play only
when a person has been held guilty of
committing an offence. The fact that the
revisionists have been found guilty of
committing the offences under Sections
498-A, 323, 504 I.P.C. and Section 4 of the
Dowry Prohibition Act, has given rise to an
occasion for claiming the benefit of Section
4(1) of the Probation of Offenders Act,
1958. This fact cannot be a ground for
denying the benefit of Section 4(1) of the
Probation of Offenders Act, 1958 to the
revisionists.

17. The submission made by the
learned counsel for the opposite party No. 2
that the revisionists have not provided any
maintenance or monetary support to the
informant,
is
the
subject
matter
of
matrimonial
proceedings
between
the
revisionist No. 1 and the opposite party No.
2 and it does not make out a ground for
denying the benefit of Section 4(1) of the
Probation of Offenders Act, 1958 to the
revisionists.

18. The trial Court has merely stated
that the co-accused Shiv Pyari is granted
the benefit of Section 4(1) of the Probation
of Offenders Act, 1958 and keeping in
view the nature of the offence, the
revisionists are not entitled to the same
448 INDIAN LAW REPORTS ALLAHABAD SERIES
benefit. When all the accused persons have
been found guilty of committing the same
offences, granting benefit of Section 4(1) of
the Probation of Offenders Act, 1958 to
one of them and denying the same benefit
to the revisionists "keeping in view the
nature of the offence" appears to be
unreasonable.

19. As the aforesaid unreasonableness
in the impugned order is apparent on the
face of the impugned order itself, it does
not need examination of the entire record of
the trial Court. Therefore, this revision is
being decided without calling for the record
of the trial Court.

20. In view of the aforesaid facts, this
Court is of the considered view that the
Trial Court's order dated 08.12.2022 to the
extent that it denies the benefit of Probation
of Offenders Act, 1958 to the revisionists,
is unsustainable in law. The other findings
recorded in the impugned order have not
been challenged.

21. Accordingly, the revision is
allowed in part. The judgment and order
dated 08.12.2022, passed by the learned
Civil Judge (J.D.)/F.T.C. - I Gonda in Case
No.180560 of 2018 arising out of Case
Crime No.45 of 2018 under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 of
Dowry Prohibition Act, Police Station
Wazirganj, District Gonda is modified to
the extent it denies the benefit of Section
4(1) of Probation of Offenders Act, 1958 to
the revisionists and it is provided that in
case the revisionists appear before the trial
Court and furnish personal bonds and two
sureties for their appearance to receive
sentence of one year as and when called
upon and in the meantime to keep the peace
and be of good behavior, the Court shall
release them on probation of good conduct.
The revisionists shall pay the amount of
fine imposed by the trial Court.

22. In case the revisionists fail to
observe
the
aforesaid
condition
of
furnishing a personal bond and two
sureties, the benefit of this order shall not
be available to them.
----------
(2024) 11 ILRA 448
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2024

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal From Order No. 1596 of 2022

Seema Devi ...Appellant
Versus
Vimal Jain & Anr. ...Respondents

Counsel for the Appellant:
Shekhar Srivastava

Counsel for the Respondents:
Ravindra Prakash Srivastava, Yogesh Kumar
Mishra

Civil law-- first appeal from order has
been filed on behalf of claimant-appellant-
Section
30(1)(a)
of
Employees
Compensation Act, 1923- Sections 2(dd) &
3 - Definition of 'employee' - Casual
labour
-
Death
during
course
of
employment
-
Worker
engaged
in
painting work on third floor -person
engaged in repair/painting of multi-storey
building
falls
under
Schedule
II
-
Rejection of claim on ground of lack of
employee-employer
relationship
erroneous -painting work is included
within meaning of 'repair' - Appeal
allowed, matter remanded. (Paras 10 to
15)
HELD:
It is admitted fact that the deceased had
received grievous injuries on fateful day
31.03.2015 while working as a painter at the