# Urmila Devi Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-01
- **Case number:** Criminal Revision No. 1012 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/urmila-devi-revisionist-v-state-of-u-p-ors-51632
- **Pages:** 8

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Section 319 & 397 - Summoning
Additional Accused - Revision Against Rejection
of Application - Revisionist challenged trial
court's order (05.12.2022) rejecting application
under Section 319 Cr.P.C. to summon Mohit
Mandal, Krishna Mandal, and Sheela Devi in S.T.
No. 631/2018 (arising from Case Crime No.
301/2017, Sections 306, 506 IPC) for abetment
to suicide of revisionist's son, Manoj Kumar. FIR
alleged that co-accused Khudiram and proposed
accused extorted money, took free goods from
deceased's shop, and defamed him, leading to
his suicide by hanging on 22.10.2016. Trial
court, after evaluating depositions of P.W.1
(scribe), P.W.2 (doctor), P.W.3 (revisionistmother), and P.W.4 (father), found insufficient
evidence of instigation by proposed accused,
noting inconsistencies in claims of financial
demands and lack of positive assertion of
abetment. Supreme Court rulings in Hardeep
Singh Vs St. of Punj. (2014) 3 SCC 92, S.
Mohammad Ispahani Vs Yogendra Chandak
(2017) 16 SCC 226, Rajesh Vs St. of Har. (2019)
6 SCC 368, and Yashodhan Singh Vs St. of U.P.
(2023) 9 SCC 108 clarify that Section 319
Cr.P.C. requires evidence stronger than a prima
facie
case
but
short
of
conviction-level
satisfaction, and can be based on examinationin-chief or material collected before trial. Trial
court's reasoned order, finding no cogent
evidence against proposed accused, upheld as
no illegality or irregularity found. Revision
dismissed. (Paras 3-17)
Revision Dismissed.

Case Law Cited:

## Text

3 All. Urmila Devi Vs. State of U.P. & Ors.
71
touched upon merit of the claim of the
applicant/revisionist in any manner. The
C.W.C.
shall
decide
the
matter
uninfluenced by observations, if any, made
on facts, by this Court as regard his claim.

15. As the revisionist has been given
opportunity to move a fresh application
before the C.W.C. hence, there is no need
to set aside the earlier order passed by the
C.W.C., however, as far as order passed by
the appellate court is concerned, it is
patently against law, hence, it is set aside.

16. Accordingly, this revision is
finally disposed of.

17. The copy of this order be
transmitted to CWC concerned.

18. Let a copy of this order be
circulated for the benefit of District
Judiciary and also to C.W.C. for necessary
guidance.
----------
(2024) 3 ILRA 71
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2024
BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 1012 of 2023

Urmila Devi ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Ankit Agarval, Sri Dilip Kumar Patel

Counsel for the Opposite Parties:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Section 319 & 397 - Summoning
Additional Accused - Revision Against Rejection
of Application - Revisionist challenged trial
court's order (05.12.2022) rejecting application
under Section 319 Cr.P.C. to summon Mohit
Mandal, Krishna Mandal, and Sheela Devi in S.T.
No. 631/2018 (arising from Case Crime No.
301/2017, Sections 306, 506 IPC) for abetment
to suicide of revisionist's son, Manoj Kumar. FIR
alleged that co-accused Khudiram and proposed
accused extorted money, took free goods from
deceased's shop, and defamed him, leading to
his suicide by hanging on 22.10.2016. Trial
court, after evaluating depositions of P.W.1
(scribe), P.W.2 (doctor), P.W.3 (revisionistmother), and P.W.4 (father), found insufficient
evidence of instigation by proposed accused,
noting inconsistencies in claims of financial
demands and lack of positive assertion of
abetment. Supreme Court rulings in Hardeep
Singh Vs St. of Punj. (2014) 3 SCC 92, S.
Mohammad Ispahani Vs Yogendra Chandak
(2017) 16 SCC 226, Rajesh Vs St. of Har. (2019)
6 SCC 368, and Yashodhan Singh Vs St. of U.P.
(2023) 9 SCC 108 clarify that Section 319
Cr.P.C. requires evidence stronger than a prima
facie
case
but
short
of
conviction-level
satisfaction, and can be based on examinationin-chief or material collected before trial. Trial
court's reasoned order, finding no cogent
evidence against proposed accused, upheld as
no illegality or irregularity found. Revision
dismissed. (Paras 3-17)
Revision Dismissed.

Case Law Cited:
1. Amit Kapoor Vs Ramesh Chander, (2012) 9
SCC 460 (Paras 8, 9)

2. Hardeep Singh Vs St. of Punj., (2014) 3 SCC
92 (Paras 10, 11, 12, 15)

3.
S.
Mohammad
Ispahani
Vs
Yogendra
Chandak, (2017) 16 SCC 226 (Para 13)

4. Rajesh Vs St. of Har., (2019) 6 SCC 368 (Para
14)

5. Yashodhan Singh Vs St. of U.P., (2023) 9 SCC
108 (Para 15)

(Delivered by Hon'ble Surendra Singh-I,
J.)
72 INDIAN LAW REPORTS ALLAHABAD SERIES

This criminal revision has been filed
for challenging the impugned judgement
and order dated 05.12.2022 passed by the
Sessions Judge, Gautam Buddh Nagar in
S.T. No.631 of 2018 (State vs. Khudiram)
arising out of Case Crime No. 301 of 2017,
under Sections 306 and 506 I.P.C., Police
Station-Sector-20, Noida, District-Gautam
Buddh Nagar.

2. By the impugned order, the trial
Court had rejected the application No.31
Ka filed by the revisionist under Section
319 Cr.P.C. for summoning Mohit Mandal,
Krishna Mandal, Arjun Mandal and Sheela
Devi in S.T. No.631 of 2018 arising out of
Case Crime No.301 of 2018, under
Sections 306 and 506 I.P.C., Police Station
Sector-20, District Noida.

3. It has been submitted by learned
counsel for the revisionist that learned
Sessions Judge vide order dated 05.12.2022
has illegally rejected the application filed
by the revisionist under Section 319 Cr.P.C.
without considering the evidence on record.
It has also been submitted that on the basis
of deposition of P.W.1-Sachin Kumar,
P.W.2-Dr. Sanjeev Kumar, P.W.-3 Smt.
Urmila Devi and P.W-4.-Kaleshwar there
was sufficient evidence to summon the
opposite party Nos.2 to 4, namely, Mohit
Mandal, Krishna Mandal and Sheela Devi
under Section 319 Cr.P.C. for trial with
charge-sheeted accused, namely, Khudiram.
It has also been submitted that impugned
order is based on surmises and conjectures
and is against the perverse and against the
evidence on record and same may be setaside.

4. Per contra, learned A.G.A. for the
State submitted that trial Court has passed
reasoned
order
after
discussing
the
deposition of P.W.1 to 4 and considering
the other documentary evidence. There is
no illegality or irregularity in the impugned
order, hence, no interference in the
impugned order is warranted.

5. Heard Sri Ankit Agarwal, learned
counsel for the revisionist and Sri Alok
Sharma, learned A.G.A. for the State.

6. The brief facts of the case is that
First Information Report was lodged on the
application of the revisionist, under Section
156 (3) Cr.P.C. with the averments that his
son, namely, Manoj Kumar, who is aged
about 24 years running a grocery shop. Coaccused, namely, Khudiram, who was of
criminal nature, used to extract money from
Manoj Kumar for running the shop in the
area and his relatives, who are brothers-inlaw and sister-in-law, namely, Mohit
Mandal, Krishna Mandal and Sheela used
to take free commodities from the shop of
deceased Manoj Kumar and on being asked
for payment of the commodities, they
threatened him to defame his reputation.
On 22.10.2016 at about 5:00 P.M., sister-inlaw of co-accused-Khudiram entered into
the shop of deceased Manoj Kumar and
closed the shutter and thereafter, son of the
revisionist was forced to drink intoxicating
substance administered by co-accused
Khudiram,
therefore,
he
became
unconscious.
Co-accused-
Khudiram
started shouting in front of his shop that
son of the revisionist has closed his sisterin-law in his shop and trying to outrage her
modesty. On being conscious, son of the
revisionist somehow came out through
drain from behind the shop. Meanwhile,
Khudiram, Mohit Mandal, Krishan Mandal
with common intention entered into the
house of revisionist/informant and made
false allegation that his son was making
indecent gesture with Sheela Kumari and
they started beating him. Upon hearing the
3 All. Urmila Devi Vs. State of U.P. & Ors.
73
noise, Manju, Geeta and some other person
of the locality reached there and saved
them, then accused persons ran away from
the place of occurrence after giving threat.
On the same day at about 7:00 P.M., son of
the revisionist committed suicide by
hanging due to anguish of being falsely
defamed by the accused persons. The
suicide note was recovered, in which,
accused persons were made responsible for
his abetment to commit suicide. In this
regard, revisionist had given application to
the concerned Police Station, but no action
was taken.

7. Before examining the merits of the
present case, the ambit, scope and power of
the Sessions Court under Sections 397 as
well as 319 Cr.P.C. should be discussed and
ascertained.

8. The Hon'ble Apex Court in Amit
Kapoor Vs. Ramesh Chander and
Another, (2012) 9 SCC 460 in paragraph
nos.12 and 13 of its judgement has narrated
the scope of revision by the High Court u/s
397 Cr.P.C. which is as follows :

"12.Section 397 of the Code
vests the court with the power to call for
and examine the records of an inferior
court for the purposes of satisfying itself
as to the legality and regularity of any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well-founded error
and it may not be appropriate for the court
to scrutinise the orders, which upon the
face of it bears a token of careful
consideration and appear to be in
accordance with law. If one looks into the
various judgments of this Court, it
emerges that the revisional jurisdiction
can be invoked where the decisions under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.

13.Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
cannot be exercised in a routine manner.
One of the inbuilt restrictions is that it
should not be against an interim or
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether
the charge has been framed properly and
in accordance with law in a given case, it
may be reluctant to interfere in exercise of
its revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the CrPC."

9. In paragraph nos.17 and 19 of
the aforesaid judgement, the Hon'ble
Apex Court has narrated that before
framing a charge, what documents should
be considered by the trial court. It has also
provided about the extent of evidence
required for framing of a charge. In
paragraph
no.20
of
the
aforesaid
judgement, the Apex Court has compared
the power and extent of jurisdiction of the
High Court u/s 397 Cr.P.C. and Section
482 Cr.P.C. which is given hereunder :

"20.The jurisdiction of the court
under Section 397 can be exercised so as
to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
74 INDIAN LAW REPORTS ALLAHABAD SERIES
be.
Though
the
section
does
not
specifically use the expression "prevent
abuse of process of any court or otherwise
to secure the ends of justice", the
jurisdiction under Section 397 is a very
limited one. The legality, propriety or
correctness of an order passed by a court
is the very foundation of exercise of
jurisdiction
under
Section
397
but
ultimately it also requires justice to be
done. The jurisdiction could be exercised
where there is palpable error, noncompliance with the provisions of law, the
decision is completely erroneous or where
the
judicial
discretion
is
exercised
arbitrarily. On the other hand, Section 482
is based upon the maximquando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potesti.e.
when the law gives anything to anyone, it
also gives all those things without which
the thing itself would be unavoidable. The
section confers very wide power on the
Court to do justice and to ensure that the
process of the court is not permitted to be
abused."

10. The Hon'ble Apex Court in para
117.3 and 117.4 in the case of Hardeep
Singh vs. State of Punjab; (2014) 3 SCC 92
has explained the meaning of word
'evidence' as used under Section 319
Cr.P.C.. The relevant paragraphs of the
judgement reads as under:-

"117.3. In view of the above
position the word "evidence" in Section
319CrPC has to be broadly understood
and not literally i.e. as evidence brought
during a trial.

Question (ii)-Whether the word
"evidence" used in Section 319(1)CrPC
could only mean evidence tested by crossexamination or the court can exercise the
power under the said provision even on
the basis of the statement made in the
examination-in-chief
of
the
witness
concerned?Answer

117.4. Considering the fact that
under Section 319CrPC a person against
whom material is disclosed is only
summoned to face the trial and in such an
event under Section 319(4)CrPC the
proceeding against such person is to
commence from the stage of taking of
cognizance, the court need not wait for the
evidence against the accused proposed to
be summoned to be tested by crossexamination."

11. The Hon'ble Apex Court in para
117.5 of the case of Hardeep Singh (supra)
has also explained the nature of satisfaction
required to invoke the power under Section
319 Cr.P.C. to arraign an accused. The
relevant paragraph of the judgement reads
as under:-

"117.5. Though under Section
319(4)(b)CrPC the accused subsequently
impleaded is to be treated as if he had
been an accused when the court initially
took cognizance of the offence, the degree
of satisfaction that will be required for
summoning a person under Section
319CrPC would be the same as for
framing a charge.The difference in the
degree of satisfaction for summoning the
original
accused
and
a
subsequent
accused is on account of the fact that the
trial may have already commenced against
the original accused and it is in the course
of such trial that materials are disclosed
against the newly summoned accused.
Fresh summoning of an accused will
result in delay of the trial therefore the
degree of satisfaction for summoning the
accused (original and subsequent) has to
be different."

12. The scope and ambit of Section
319 Cr.P.C. has been well-settled by the
3 All. Urmila Devi Vs. State of U.P. & Ors.
75
pronouncement of Constitution Bench of
the Hon'ble Apex Court in Hardeep Singh
Vs. State of Punjab and others, (2014) 3
SCC 92 and paras 105 and 106 which are
relevant for the purpose are reproduced
hereunder :

"105. Power under Section 319
Cr.P.C, 1973 is a discretionary and an
extraordinary power. It is to be exercised
sparingly and only in those cases where
the circumstances of the case so warrant.
It is not to be exercised because the
Magistrate or the Sessions Judge is of the
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs
against a person from the evidence led
before the court that such power should be
exercised and not in a casual and cavalier
manner.

106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction. In
the absence of such satisfaction, the court
should refrain from exercising power
under Section 319 Cr.P.C., 1973. In
Section 319 Cr.P.C., 1973, the purpose of
providing if "it appears from the evidence
that any person not being the accused has
committed any offence" is clear from the
words "for which such person could be
tried together with the accused". The
words used are not "for which such
person could be convicted". There is,
therefore, no scope for the court acting
under Section 319 Cr.P.C., 1973 to form
any opinion as to the guilt of the
accused."

13. In S. Mohammad Ispahani Vs.
Yogendra Chandak (2017) 16 SCC 226,
this Court has observed and held as under :

"35. It needs to be highlighted
that when a person is named in the FIR by
the
complainant,
but
police,
after
investigation, finds no role of that
particular person and files the chargesheet without implicating him, the Court is
not powerless, and at the stage of
summoning, if the trial court finds that a
particular person should be summoned as
accused, even though not named in the
charge-sheet, it can do so. At that stage,
chance is given to the complainant also to
file a protest petition urging upon the trial
court to summon other persons as well
who were named in the FIR but not
implicated in the charge sheet. Once that
stage has gone, the Court is still not
powerless by virtue of Section 319 of the
Cr.P.C.
However,
this
section
gets
triggered when during the trial some
evidence surfaces against the proposed
accused."

14. In the case of Rajesh Vs. State of
Haryana
(2019)
6
SCC
368,
after
considering the observations made by this
Court in Hardeep Singh (supra) referred to
hereinabove,
this
Court
has
further
observed and held that even in a case where
the stage of giving opportunity to the
complainant to file a protest petition urging
upon the trial court to summon other
persons as well who were named in F.I.R.
but not implicated in the charge-sheet has
gone, in that case also, the Court is still not
powerless by virtue of Section 319 Cr.P.c.
and even those persons named in the F.I.R.
76 INDIAN LAW REPORTS ALLAHABAD SERIES
but not implicated in charge-sheet can be
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.

15. The Hon'ble Apex Court in the
case of Yashodhan Singh and others vs.
State of Uttar Pradesh and Another;
(2023) 9 SCC 108 has explained the law
purported by the Hon'ble Apex Court in the
case of Hardeep Singh (supra) regarding
the evidence required the satisfaction of the
Court for summoning a person under
Section 319 Cr.P.C. The paragraph Nos.
22.6, 22.7 and 22.8 which are relevant for
the purpose are reproduced hereunder :

"22.6. It was also observed by
this Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92
: (2014) 2 SCC (Cri) 86] that apart from
evidence in the strict legal sense recorded
during trial, any material that has been
received by the court after cognizance is
taken and before the trial commences, can
be utilised only for corroboration and to
support the evidence recorded by the court
to invoke the power under Section
319CrPC. Holding that the expression
"evidence" must be given a broad
meaning, it was observed that material
which is not exactly evidence recorded
before the court, but is a material
collected by the court, can be utilised to
corroborate evidence already recorded for
the purpose of summoning any other
person, other than the accused. Such
material would be supportive in nature to
facilitate the exposition of any other
accomplice whose complicity in the
offence may have been suppressed or had
escaped the notice of the court. Therefore,
any material brought before the court
even prior to the trial can be read within
the meaning of the expression "evidence"
for the purpose of Section 319CrPC.
While considering the evidence that
emanates during the trial, it was observed
by this Court that evidence recorded by
way of examination-in-chief and which is
untested
by
cross-examination
is
nevertheless evidence which can be
considered by the court for the exercise of
power under Section 319CrPC so long as,
it would appear to the court that some
other person who is not facing the trial,
may also have been involved in the
offence.

22.7. Further, Section 319CrPC
also uses the words "such person could be
tried", which means not to have a minitrial at the stage of Section 319CrPC by
having
examination
and
crossexamination and thereafter coming to a
prima facie conclusion on the overt act of
such person sought to be added. Such a
mini-trial will affect the right of the
person sought to be arraigned as an
accused rather than not having any crossexamination at all. As under Section
319(4)CrPC, such a person has the right
to
cross-examine
the
prosecution
witnesses
and
examine
the
defence
witnesses and advance his arguments. It
was further observed that the power under
Section 319CrPC can be exercised even
after completion of examination-in-chief
and the court does not have to wait till the
said
evidence
is
tested
on
crossexamination, for it is the satisfaction of
the court which can be gathered from the
reasons recorded by the court, in respect
of complicity of some other persons, not
facing the trial in the offence.

22.8. The test that has to be
applied is one which is more than prima
facie case as exercised at the time of
framing
of
charge,
but
short
of
satisfaction to an extent that the evidence,
if
goes
unrebutted,
would
lead
to
3 All. Urmila Devi Vs. State of U.P. & Ors.
77
conviction. Therefore, such satisfaction is
sine qua non for exercise of power under
Section 319CrPC. Ultimately, the exercise
of power is for the trial of such persons
summoned together with the accused
already on trial and not for conviction
with the accused. Therefore, at that stage,
the court need not form any definite
opinion as to the guilt of the accused."

16. The trial Court has discussed the
evidence on record and given reasons
arriving at the conclusion, which are as
follows:-

" The inquest of the dead body
was conducted on 22.10.2016 at 21:40 Hrs
in presence of Pawan Kumar, Kaleshwar,
Rambabu, Suneel Kumar and Satish
Kumar, wherein they have opined that the
death of Manoj Kumar was due to hanging
inside the room.

The
postmortem
reveals
Lacerated Mark 28 cm 4cm below right ear
and 7 cm below from chin and 7 cm below
from left ear; gap 11 cm. In the opinion, the
death was asphyxia due to antemortem
hanging.

In the present matter Sachin
Kumar the scribe of chik FIR has deposed
as P.W.1 that on the basis of order dated
09.03.2017 of Chief Judicial Magistrate on
application under Section 156 (3) Cr.P.C.
the FIR has been registered on 19.03.2017
on the basis of which the GD has been
entered.

P.W.2, Dr. Sanjeev Kumar has
stated
that
he
has
conducted
the
postmortem and found that the death has
been caused due to hanging. During his
cross-examination he has stated that while
conducting postmortem he did not found
any traces that the deceased was in
influence of any intoxicant.

P.W.3, Smt. Urmila Devi, mother
of the deceased has stated that Krishna
Mondal, Mohit Mondal brothers of Sheela
have accused her son of having illicit
relations with Sheela and called the police
when they found Sheela Devi in the shop
with shutter down. It is further stated that
the accused came and ask her son to marry
Sheela.

P.W.4, Kaleshwar, father of the
deceased has stated that he was not at the
place of incident and went to AIIMS for his
medicine. He further stated that the
constable has asked him to call his son
otherwise they will register the FIR against
him.

P.W.5 Pawan Kumar, brother of
the deceased has stated that the accused
have falsely targeted the deceased in the
garb of free grocery.

The witnesses of fact have not
deposed in regard to the positive assertion
on
instigation
against
the
proposed
accused but have only stated that the
accused have asked the deceased to marry
Sheela for having found from the shop of
deceased, who was already married. So far
as taking of free grocery is concerned , the
same is stated differently, as P.W.3 stated it
as of Rs.80,000/- and according to P.W.5, it
was Rs.20,000/-"

17. From the perusal of the aforesaid
reasons given by the trial Court in the
impugned
order,
the
statements
of
prosecution witnesses on record as well as
law laid down by the Hon'ble Apex Court
in the aforesaid decisions, it appears that
trial Court has not committed any illegality
or irregularity in arising at the conclusion
that there is no sufficient ground to
summon the opposite party Nos.2 to 4 for
trial with the co-accused Khudiram. Hence,
I do not find any merit in the revision
78 INDIAN LAW REPORTS ALLAHABAD SERIES
which is liable to be dismissed and is
hereby dismissed accordingly.
----------
(2024) 3 ILRA 78
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 1021 of 2023

Rasheed Ahmed ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Amit Chaudhary, Mahendra Kumar Yadav

Counsel for the Opposite Party:
G.A.

Criminal Law - Public Gambling Act, 1867
- Section 13 - Code of Criminal Procedure,
1973 - Sections 397, 401 & 360 -
Probation
of
Offenders
Act,
1958
-
Sections 4 & 12 - Criminal Revision - Rasheed
Ahmed Vs St. of U.P., Criminal Revision No.
1021 of 2023 - Revisionist challenged conviction
under Section 13 for gambling, sentenced to
Rs.100 fine and custody till court rising, alleging
denial of probation benefits and improper
conviction. Court held: (1) FIR alleged gambling
inside a private hut, not a public place as
required under Section 13, rendering offence
not made out. (2) Conviction based solely on
confession invalid, as it was made due to
poverty and inability to contest, not voluntary
understanding of charges. (3) Trial court failed
to assess if prosecution allegations constituted
offence, mechanically taking cognizance on
proforma. (4) Sentence of both fine and
imprisonment illegal under Section 13 (U.P.
amendment), which allows either fine (Rs.50250) or imprisonment (up to one month) for
first offence. (5) Denial of probation under
Section 4 of the 1958 Act without reasons
violated Section 361 Cr.P.C. Revision allowed;
conviction and sentence set aside; revisionist
acquitted. (Paras 16-24)
Revision Allowed.

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

1. By means of the instant criminal
revision filed under Section 397/401
Cr.P.C. the revisionist has challenged the
validity of the judgment and order dated
05.11.2020, passed by the learned Chief
Judicial Magistrate, Faizabad in Criminal
Case No.11109 of 2018 arising out of Case
Crime No.52 of 2018, under Section 13 of
the Gambling Act, Police Station Kotwali
Rudauli, District Faizabad, whereby the
revisionist has been convicted for the
aforesaid offence on the basis of his
confession and has been sentenced to pay a
fine of Rs.100/- and to remain in custody
till the rising of the Court, only to the
extent that it denies the benefit of Probation
of Offenders Act, 1958 to the revisionist.

2. Sri. Amit Chaudhry, the learned
counsel for the revisionist has submitted
that the revisionist has no criminal history
and, therefore, he was entitled to be granted
benefit of provisions of Section 4 of the
Probation
of
Offenders
Act,
1958
(hereinafter referred to as the 'Act of
1958'). In that case the revisionist would be
entitled to the benefit of Section 12 of the
Act, 1958, which provides that a person
found guilty of the offence and dealt with
under the provisions of Section 3/4 of the
Act, 1958 shall not suffer disqualification,
if any, attaching to a conviction of an
offence under such law.

3. The learned counsel for the
revisionist has submitted that Section 361
Cr.P.C. provides that whether a court could
have dealt with an accused person under
the provisions of Section 360 Cr.P.C. or
provisions of Act, 1958, but it has not done