# Rajjan (On Interim Bail) v. State of U.P

- **Citation:** (2020) 1 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-02
- **Case number:** Criminal Appeal No. 816 of 2014
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajjan-on-interim-bail-v-state-of-u-p-45703
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code -
Sections
323,
504,
506
-
S.C./S.T.
Act,1961 -Section 3(1)X - Appeal against
conviction.

Section 3 and 4 of the Probation of Offender
Act and Sections 360, 361 of Cr.PC. are
discussed.

Considering the fact that the accused has been
convicted only under Section 323 IPC and for
remaining offence he has been acquitted by
the learned trial court. It is a fit case in which
the benefit of probation may be given. The
reason being that there is no criminal history
alleged against the appellant, he is a farmer
and belongs to a very humble and village
background, the probation of Offender Act and
Sections 360 and 361 Cr.P.C. makes it
mandatory. On the part of the trial Court to
state reason for not according to benefit of
1 All. Rajjan Vs. State of U.P.
83
probation in a case relating to an offence which
is
punishable
for
less
than
7
years
imprisonment.
Accordingly,
the
impugned
judgment of conviction and sentence recorded
by the court below under Section 323 I.P.C. is
upheld. (para 12)

However, instead of sending the appellant
namely Rajjan to jail, he shall get the benefit
of Section 4 of the Probation of Offenders Act.
Consequently, the appellant shall file two
sureties with personal bonds to the effect that
he 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, he will subject
himself to undergo sentence before the
Magistrate. (para 13)

The appeal is disposed of. (E-2)

List of cases cited: -

## Text

82 INDIAN LAW REPORTS ALLAHABAD SERIES
gravity of the offence. These are some of
the relevant factors which are required to
be kept in view while convicting and
sentencing the accused.

24. I am of the opinion that nature of
simple injury inflicted by the accused on
the part of the body on which it was
inflicted. The weapon used to inflict the
same and the circumstances in which the
injury was inflicted do not suggest that
appellant had any intention to kill the
deceased (real brother of appellant). All
that can be said is that the appellant had
the knowledge that injury inflicted by him
was sufficient to cause the death of the
deceased. The case would, therefore, more
appropriately fall under section 304 Part II
IPC. So the appellant is rightly convicted
under Section 304 Part II and 504 IPC.

25. As the appellant's family consists
of one minor daughter, two minor sons and
wife and all of whom dependent on him
and the appellant has no previous criminal
history.

26. So, considering the peculiar facts
and circumstances of the case. The appeal
is partly allowed and modifying the
sentence awarded to appellant.

27. The conviction provided under
section 304 Part II is confirmed. As the
appellant is in jail since 01.02.2015
(during trial as well as appeal). I think that
the ends of justice would be served by
sentencing the appellant to rigorous
imprisonment for 5 years, under section
304
IPC
Part-II
and
one
year
imprisonment under section 504 IPC and
both the sentence run concurrently. The
fine imposed by trial court with default
clause awarded to him shall remain
unaltered. It is made clear that the period
undergone in jail shall be adjusted in 5
years imprisonment.

28. The office is directed to transmit
back the record of the Lower Court with a
copy of judgment and order of this Court
for immediate compliance.
----------
(2020)1ILR A82

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 816 of 2014

Rajjan ...Appellant(On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Santosh Kumar Mishra

Counsel for the Opposite Party:
A.G.A.
Criminal Law - Indian Penal Code -
Sections
323,
504,
506
-
S.C./S.T.
Act,1961 -Section 3(1)X - Appeal against
conviction.

Section 3 and 4 of the Probation of Offender
Act and Sections 360, 361 of Cr.PC. are
discussed.

Considering the fact that the accused has been
convicted only under Section 323 IPC and for
remaining offence he has been acquitted by
the learned trial court. It is a fit case in which
the benefit of probation may be given. The
reason being that there is no criminal history
alleged against the appellant, he is a farmer
and belongs to a very humble and village
background, the probation of Offender Act and
Sections 360 and 361 Cr.P.C. makes it
mandatory. On the part of the trial Court to
state reason for not according to benefit of
1 All. Rajjan Vs. State of U.P.
83
probation in a case relating to an offence which
is
punishable
for
less
than
7
years
imprisonment.
Accordingly,
the
impugned
judgment of conviction and sentence recorded
by the court below under Section 323 I.P.C. is
upheld. (para 12)

However, instead of sending the appellant
namely Rajjan to jail, he shall get the benefit
of Section 4 of the Probation of Offenders Act.
Consequently, the appellant shall file two
sureties with personal bonds to the effect that
he 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, he will subject
himself to undergo sentence before the
Magistrate. (para 13)

The appeal is disposed of. (E-2)

List of cases cited: -

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

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

3. St. of Mah. Vs. Jagmohan Singh Kuldip Singh
Anand & ors. (2004) 7 SCC 659

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

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

1. Heard Sri Santosh Kumar Mishra,
learned counsel for the appellant and
learned A.G.A. for the State and perused
the record.

2. This appeal has been preferred
against the judgment and order of
conviction dated 30.1.2014 passed by
Special Judge SC/ST (P.A.)/Act/Learned
Additional
Session
Judge,
Court
NO.94/2012 (State Vs. Rajjan), arising out
of Case Crime No. 321 of 2011, under
Sections 323, 504, 506,I.P.C. and Section
3(1)X of SC/ST (PA) Act, Police Station
Pahari, District Chitrakoot, whereby the
accused-appellant
was
convicted
and
sentenced for a period of six months
rigorous imprisonment for the offence
under Section 323 IPC along with fine of
Rs.1000/- and in default for one month.

3. Learned counsel for the appellant
has submitted that he is not inclined to
argue the case on merits and will seek the
benefit of probation as the appellant has
been convicted for the offence under
Section 323 IPC.

4. Learned counsel for the appellant
has relied upon the judgment in the case of
Subhash Chand & others Vs State of UP
(2015 Law Suit (All) 1343) and the
judgment passed 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,
84 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

5. 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
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."
1 All. Rajjan Vs. State of U.P.
85

6. 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
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
86 INDIAN LAW REPORTS ALLAHABAD SERIES
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-

(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."

7. 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.

8. In this instant case, the court
below has not considered the probation
1 All. Rajjan Vs. State of U.P.
87
law, although, the appellant was only
convicted for the offence under Section
323 I.P.C. for which the appellant was
convicted for the maximum period of six
months.
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 2011 and
this appeal is pending since 2014 and
therefore, no purpose of justice will be
served if the appellant is sent to jail to
undergo the terms of sentence after lapse
of such long time.

9. 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 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."

10. 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
88 INDIAN LAW REPORTS ALLAHABAD SERIES
to execute a bond of one year for good
behaviour."

11. 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.

12. Considering the fact that the
accused has been convicted only under
Section 323 IPC and for remaining offence
he has been acquitted by the learned trial
court. I find it to be a fit case in which the
benefit of probation may be given. The
reason being that there is no criminal
history alleged against the appellant, he is
a farmer and belongs to a very humble and
village background, the probation of
Offender Act and Sections 360 and 361
Cr.P.C. makes it mandatory. On the part of
the trial Court to state reason for not
according to benefit of probation in a case
relating to an offence which is punishable
for less than 7 years imprisonment.
Accordingly, the impugned judgment of
conviction and sentence recorded by the
court below under Section 323 I.P.C. is
upheld.

13. However, instead of sending the
appellant namely Rajjan to jail, he shall
get the benefit of Section 4 of the
Probation of Offenders Act. Consequently,
the appellant shall file two sureties with
personal bonds to the effect that he 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, he will
subject himself to undergo sentence before
the Magistrate. The bonds and sureties
aforesaid be filed by the accused person
within two months from the date of the
Judgment as per law and Rules.

14. With the above modification, the
appeal is accordingly disposed of finally.

15. Office is directed to send the
certified copy of this judgment along with
lower court record to the court concerned
for information and necessary action.
----------
(2020)1ILR A88

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 941 of 2010
connected with
Criminal Appeal No. 254 of 2010 & 886 of 2010

Kamlendra Dwivedi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Saurabh
Srivastava,
Maneesh
Kumar
Singh, Navita Sharma

Counsel for the Respondent:
Govt. Advocate, Firoz Ahmad Khan, Mohd.
Usman Gani Khan, S.H. Ibrahim

Criminal Law - Indian Penal Code - Sections
498-A, 304-B - Dowry Prohibition Act, 1961
- Section 3⁄4 - Appeal against conviction.

Therefore, what actually had happened in that
room could only be in the specific knowledge of
appellant and, therefore, by virtue of Section