# Ram Pratap @ Pratap Yadav Revisionist v. State of U.P

- **Citation:** (2023) 7 ILRA 492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-21
- **Case number:** Criminal Revision No. 79 of 2011
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-pratap-yadav-revisionist-v-state-of-u-p-50364
- **Pages:** 12

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,325 & 504 -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 -
examination of the investigating officer is
not necessary if no prejudice is caused to
the accused.(Para -15)

F.I.R. lodged - after finding fracture on right
hand of informant - N.C.R. converted into F.I.R.
- Section 325 added - Court ruled - nonexamination of I.O. not fatal for prosecution, as
oral,
documentary,
and
medical
evidence
supported each other - accused not prejudiced
by non-examination of I.O. - case of year 1998 -
more than 25 years passed - accused-revisionist
suffered matter for almost past two and half
decades - no other pre or post criminal
antecedent
of
accused
revisionist
-
not
appropriate to send revisionist in jail. (Para -
15,27)

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-28, 29)

Revision
partly
allowed
with
modifications. (E-7)

List of Cases cited:

## Text

_Characters 0–39,212 of 40,413. This is a partial read: ask again with offset=39212 for what follows._

492 INDIAN LAW REPORTS ALLAHABAD SERIES
"prima facie satisfaction" a word which can
be equated with the word "prima facie
case".

15. In my view, the judicial process
should not became a tool for oppression or
avoidable harassment. I am of the opinion
that there was not sufficient material to
proceed to take cognizance and summon
the accused persons, hence the impugned
order is hereby, set aside.
----------
(2023) 7 ILRA 492
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 79 of 2011

Ram Pratap @ Pratap Yadav ...Revisionist
Versus
State of U.P. ...Respondent

Counsel for the Revisionist:
Sunil Kumar Singh, Jitendra Bahadur Singh,
Seraj Ahmad Khan

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,325 & 504 -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 -
examination of the investigating officer is
not necessary if no prejudice is caused to
the accused.(Para -15)

F.I.R. lodged - after finding fracture on right
hand of informant - N.C.R. converted into F.I.R.
- Section 325 added - Court ruled - nonexamination of I.O. not fatal for prosecution, as
oral,
documentary,
and
medical
evidence
supported each other - accused not prejudiced
by non-examination of I.O. - case of year 1998 -
more than 25 years passed - accused-revisionist
suffered matter for almost past two and half
decades - no other pre or post criminal
antecedent
of
accused
revisionist
-
not
appropriate to send revisionist in jail. (Para -
15,27)

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-28, 29)

Revision
partly
allowed
with
modifications. (E-7)

List of Cases cited:

1. Bihari Prasad & ors. Vs St. of Bihar, 1996 (2)
SCC 317

2. Raj Kishor Jha Vs St. of Bihar, 2003, (47)
ACC, 1068

3. St. of Karn. Vs Muddappa, (1999) 5 SCC 732

4. Mohd. Monir Alam Vs St. of Bihar, (2010) 12
SCC 26

5. Krishna Deo & Ors. Vs St. of U.P., Criminal
Appeal No. 735 of 1982

6. St. of U.P. Vs Misri Lal & ors., 1982 CrLJ
1420
7 All. Ram Pratap @ Pratap Yadav Vs. State of U.P.
493
7. Sitaram Paswan & anr. Vs St. of Bihar, AIR
2005 SC 3534

8. 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
19.02.2010 passed by Additional Chief
Judicial
Magistrate-IV,
Faizabad,
in
Criminal Misc. Case No. 82 of 1998,
convicting the revisionist-accused under
Section 323 IP.C. for six months simple
imprisonment with fine of Rs. 500/- and
under Section 325 I.P.C. for three years
simple imprisonment with fine of Rs.
1,000/- with default stipulation as well as
the judgment and order dated 28.01.2011
passed by Additional Sessions Judge, Court
No.5. Faizabad in Criminal Appeal No. 33
of 2010 whereby the Appellate Court has
affirmed the judgment and order of learned
Trial Court.

3. In brief, facts of the case are that
the informant Smt. Ram Rati lodged an
F.I.R.
at
Police
Station
Haidarganj,
Faizabad, that when her grand daughter
namely Km. Kamlesh was grazing cattle
and they entered the field of accused Ram
Pratap, he beat up her grand daughter by
punches and slaps. When her grand
daughter narrated her, she went to the
house of accused to reprimand him, the
accused also beaten her with sticks. On her
hue and cry when villagers reached there,
the
accused
fled
away
abusing
the
informant. The informant received injury in
her right hand. The F.I.R. was lodged and
during the course of investigation, after
finding fracture at the lower part of her
right hand, the N.C.R. was converted into
F.I.R. and Section 325 I.P.C. was added and
the I.O. submitted charge-sheet under
Section 323, 325 and 504 I.P.C.

4. The concerned Magistrate framed
the charges under the aforesaid Sections.
The prosecution, in order to prove the guilt,
examined following witnesses.

P.W.-1
Km. Kamlesh
P.W.-2
Ram Rati
P.W.-3
S.I. K.P. Singh
P.W.-4
Constable Ram Saran Bharti
P.W.-5
Dr. A.K. Srivastava

5.

The
prosecution
produced
following documentary evidence:

Ex. Ka-1
Medical report
Ex. Ka-2
Carbon Copy N.C.R.
Ex. Ka-3
Carbon Copy Kayami G.D.
Ex. Ka-4
Carbon Copy Radiologist
report

6. The statement of the accused was
recorded under Section 313 Cr.P.C. wherein
he denied the allegations and charges and
stated that the witnesses have deposed due
to enmity. No defence evidence was
produced from the side of the accused.

7. Before the Trial Court, it has been
argued that since the copy of the N.C.R. is
not on record and G.D had not been
produced and no order under Section 155
(2) Cr.P.C. was on record, hence, the
494 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation is faulty and the accused is
entitled to the benefit of doubt.

8. This argument was answered by the
trial Court that the case was initially
registered as N.C.R. but on the basis of
fracture and radiologist's report, the case was
converted into Section 325, 323 and 504
I.P.C. and a crime no. 82 of 1998 was
allotted. It has been satisfactorily answered
that carbon copy of N.C.R. was available on
record which was admissible in evidence
under Section 65 of The Indian Evidence Act.

9. Another objection was raised by the
counsel for the accused that carbon copy of
the G.D. is not available on record. It is
proved that the G.D. are weeded out after five
years. Hence original G.D. was not available.
Carbon copy of the G.D. is prepared in the
same process, therefore, carbon copy of the
G.D. can be treated as original.

10. It was further argued before the
trial Court that the place of occurrence has
not been proved and there are serious
contradictions
about
the
place
of
occurrence in the statements of the
witnesses of facts.

There are only two witnesses of fact
namely P.W.1, Km. Kamlesh and P.W.2,
informant, Ram Rati. It has been written in the
N.C.R. that the informant was going to
reprimand the accused at his home when he
started beating her by sticks. P.W.1 has deposed
that accused had beaten at her hand, she further
deposed that after getting information from her
grand daughter, she had not gone to the house
of the accused. She denied that such statement
was given by her to the I.O. This witness
deposed that when she reached on the field, no
one was there. Km. Kamlesh, P.W.1, has
deposed that when her grand mother asked
about the beating from the accused, the accused
also beaten her before reaching the field. This
witness
has
clearly
deposed
that
her
grandmother had not gone to the house of the
accused. Thus, from the evidence of both the
witnesses it has been clearly established that
Ram Rati was beaten by the accused in between
his house and his field.

Thus the trial Court did not find any
discrepancy about the place of occurrence in
the evidence of both the witnesses of fact.

11. It was further argued before the
Court that as per the N.C.R., the occurrence
took place at about 3:00 P.M. whereas the
informant had stated under Section 161
Cr.P.C. that the occurrence had taken place at
about 4:00 P.M.

The learned trial Court has concluded
that the statement given in the Court would
prevail over the statement recorded under
Section 161 Cr.P.C.

According to this Court, P.W.-2 is an
illiterate, rustic villager, there is no evidence
that at the time of incident, she was wearing a
watch, hence, one hour variation in time of
incident is immaterial and on account of such
variation, it can not be said that time of
occurrence has been substantially changed.
According to this Court on account of such
variation, the prosecution case can not be said
to be suspicious or doubtful.

12. It was further argued before the
trial Court that the evidence of P.W.5, Dr.
A.K.Srivastava
is
not
admissible
in
evidence as there was difference in name of
the doctor.

On the injury report, the name of the
doctor has been written to be Dr. A.K.
Srivastava whereas by slip of pen his name
7 All. Ram Pratap @ Pratap Yadav Vs. State of U.P.
495
has been written to be S.K.Srivastava on
the back of the charge-sheet. It has not been
established that there were two doctors,
therefore, only on account of slip of pen no
benefit can be given to the accused.

According to the prosecution when the
informant Ram Rati went to reprimand the
accused for beating her grand daughter, he
attacked with sticks on her right hand due
to which her hand was broken. It has also
been proved from the evidence of Dr. A.K.
Srivastava. Further injury report & x-ray
plate were also on record which have been
proved by the concerned witnesses.

According to the accused, the witnesses
were falsely deposing on account of enmity
but he could not disclose any prior enmity
between him and the informant which may be
a cause of false implication.

13. On the basis of above discussions,
the learned Trial Court convicted the
accused under Section 323 and 325 I.P.C.

14. Being aggrieved the accusedrevisionist filed Appeal No. 33 of 2010 (Ram
Pratap Vs. State of U.P.) which was decided
by Additional Sessions Judge Court No.5,
Faizabad by judgment and order dated
28.01.2011 affirming the order of conviction
and sentencing passed by the Trial Court.

15. During the appeal, a ground was
taken by the accused-revisionist-appellant
that since the investigating officer has not
been examined and the charge-sheet has not
been proved, hence, he is not liable to be
convicted and the appeal was liable to be
allowed.

In this regard, the Appellate Court
relied on the following judicial precedents:

(i) Bihari Prasad and Others Vs.
State of Bihar, 1996 (2) SCC 317.

(ii) Raj Kishor Jha Vs. State of
Bihar, 2003, (47) ACC, 1068.

In both the cases it has been held that
in each and every case, examination of the
investigating officer is not necessary if no
prejudice is caused to the accused.

According to this Court ,in the case in
hand, a prompt F.I.R. has been lodged and
after finding fracture on right hand of the
informant, the case was converted into
Section 325 I.P.C. This Court is of the view
that non-examination of the I.O. is not fatal
for the prosecution as in this case the oral,
documentary and medical evidence are in
support of each other. Hence, accused not
been prejudiced by non-examination of the
I.O.

16. On the basis of above discussion,
this Court is of the view that the judgment
and order of both the Courts below are
factually and legally correct and no other
opinion in favour of the revisionist can be
formed. Thus, the conviction awarded by
the learned Trial Court and upheld by the
Appellant Court, is affirmed.

17. At this juncture, learned counsel
for the revisionist argued that it is a case of
the year 1998 and 25 years have been
elapsed and the accused has become an old
(senior citizen). There is no previous or
past criminal history of the accused, the
occurrence had taken place in a fit of anger
due to wastage of crop of the accusedrevisionist on account of grazing by the
cattle of the informant, hence, a lenient
view should be adopted regarding sentence.
He further argued that no useful purpose
would be served by sending the accusedrevisionist in jail and he may be released on
probation of good conduct.
496 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In this regard learned counsel for
the accused-revisionist has placed reliance
on the following judgments:

(a)
State
of
Karnataka
Vs.
Muddappa, (1999) 5 SCC 732,

In this case, the offence under Section
302 I.P.C. was converted into Section 304
Part II I.P.C. Relevant portion is being
quoted hereinbelow:

"2. The learned Counsel for the
appellant is not in a position to assail the
acquittal of the accused under Section 302
I.P.C., but he vehemently contends that the
Court did not bear in mind germane
considerations for releasing the accused on
probation after convicting him under Section
304 Part II I.P.C. Whether the benefit of the
Probation of Offenders Act could be extended
in any particular case depends upon the
circumstances of that case. Admittedly, there
is no statutory bar for application of the Act
to an offence under Section 304 Part II where
the maximum punishment is neither death nor
imprisonment for life. In that view of the
matter and on examining the impugned
judgment of the High Court, we find that the
Court did consider the relevant material and
then came to the conclusion that the accused
should be released on probation by applying
the provisions of Section 4 of the Probation of
Offenders Act. We see no infirmity with that
order to be interfered with by this Court after
this length of time, more so when nothing has
been pointed out as to whether the accused
has, in any way, violated the terms and
conditions of allowing him on probation."

(b) Mohd. Monir Alam Vs. State of
Bihar, (2010) 12 SCC 26.

In this case the offence under Section
302 I.P.C was converted into Section 304
part II and the Apex Court found it fit to
enlarge the appellant on probation instead
of sending him to jail for serving the
sentence. Relevant part of this judgment is
reproduced hereinbelow:

"8. We have considered Mr. Suri's
submissions very carefully. We see from the
documents that the appellant has secured a
Doctorate and is presently employed as a
Senior
Assistant
Professor
in
the
Department of Strategic and Regional
Studies, University of Jammu and that he
had secured this appointment in the year
1997. His profession qualifications have
also been provided to us which show his
expertise in his speciality and also portray
his
association
with
prestigious
organisations worldwide in the field of
strategic studies. We are, therefore, of the
opinion that his conduct that his conduct
and attainments after his involvement in
this matter justify his release on probation.
We, accordingly, dismiss the appeal but
direct that he shall be released on
probation under Section 4 of the Probation
of Offenders Act, 1958 on terms to be
settled by the trial court."

(c) Krishna Deo and Others Vs.
State of U.P., judgment dated 11.08.2017,
passed in Criminal Appeal No. 735 of
1982, passed by Division Bench of this
Court. Relevant portion of this judgment is
reproduced as follows:

"23. We are also not interfering with
the conviction of appellants- Smt. Jaikali
and Smt. Bhagwandei under Section 147 &
323/149 of the IPC. As discussed above,
considering the facts and circumstances of
the case, instead of sentencing the
appellant no. 1 for the offence under
Section 304 Part-II r/w Section 34, 147,
323/149 of the IPC., we think it proper in
the interest of justice to release the
7 All. Ram Pratap @ Pratap Yadav Vs. State of U.P.
497
appellant- Krishnadeo, after giving him the
benefit of Section 4 of the Probation of
Offenders Act. We are not inclined to
interfere with the sentence passed against
the
appellant-
Smt.
Jaikali,
Smt.
Bhagwandei, who were only directed to pay
fine. Appellant-Krishna Deo is directed to
surrender in the court below. The learned
court below is directed to release him as
per the provisions of Section 4 of the
Probation of Offenders Act. The learned
court below shall take all coercive steps for
realizing the fine from appellants-Jaikali
and Bhagwandei, if the same has not been
deposited by them."

19. From the aforesaid discussions, it
is very much clear that the High Court and
Hon'ble the Supreme Court have enlarged
the accused on probation instead of sending
them in jail even in case of culpable
homicide not amounting to murder which
had fallen under Section 304 part II I.P.C.
In the present case the accused has been
held guilty only under Section 323 and 325
I.P.C. therefore, the case of the accusedrevisionist is at better footing.

20. 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
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
498 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

21. 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
7 All. Ram Pratap @ Pratap Yadav Vs. State of U.P.
499
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
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."

22. There is one more legislation on
the subject namely "Uttar Pradesh First
Offenders' Probation Act, 1938". Sections 3
500 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
7 All. Ram Pratap @ Pratap Yadav Vs. State of U.P.
501
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."

23. 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
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."

24. 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
502 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

25. 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 Hon'ble 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."

26. In Mohd. Hashim Vs. State of
U.P and others, AIR 2017 SC 660,
Hon'ble Supreme Court opined as under:-

"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."

27. This is a case of the year 1998 and
more than 25 years have passed. The
incident took place way back in the year
1998. The accused-revisionist has suffered
7 All. Rakesh & Ors. Vs. State of U.P.
503
in the matter for almost past two and half
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.

28. As 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 accusedrevisionist requires modification.

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

29.1. 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.10,000/-
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,
Ayodhya, UP under the intimation to the
concerned court.

30. A certified copy of the order be
also sent to the court concerned and District
Probation
Officer,
Ayodhya, UP
for
compliance.
----------
(2023) 7 ILRA 503
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 423 of 1993

Rakesh & Ors. ...Revisionists
Versus
State of U.P. ...Respondent

Counsel for the Revisionists:
Sri V.K. Sharma, Sri Surendra Kumar Tripathi, Sri
Sushil Kumar Chaturvedi

Counsel for the Respondent:
A.G.A.