Pradeep Kumar Srivastava, J.
1. Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record.
2. This revision has been preferred against the judgment and order dated 30.6.1999 passed by VIIth Additional Sessions Judge, Bijnor in Criminal Appeal No. 07 of 1999, confirming the conviction and sentence of one year and fine of Rs.500/- to each of the revisionist under Section 147 IPC and six months rigorous imprisonment and fine of Rs.500/- each under Section 323/149 IPC passed by IVth Addl. Chief Judicial Magistrate, Bijnor in Criminal Case No. 1175 of 1998: State Vs. Hargovind and others. The Appellate Court further awarded one year Rigorous Imprisonment and fine of Rs.500/- each under Section 148 IPC, six months Rigorous Imprisonment and fine of Rs.500/- each under Section 324/149 IPC, one year Rigorous Imprisonment and fine of Rs.500/- each under Section 325/149 IPC and six months rigorous imprisonment under Section 506 (2) IPC.
3. The revisionists have challenged the impugned judgment on the ground that learned court below has illegally convicted them despite that there is material controversy in the statements of witnesses regarding place of incident, hence conviction is against the evidence on record. The place of occurrence could not be ascertained as the Investigating Officer failed to produce blood stained earth recovered from the place of incident. Moreover, the learned appellate court illegally enhanced the conviction and sentence under Sections 148, 324/149, 506(2) IPC and 325/149 IPC without setting aside the order of acquittal of learned trial court and there was no appeal filed on behalf of the State. Further, since no charge is made out against the revisionists, there was no need to confirm the conviction and sentence after lapse of eight years and fine was sufficient to meet the ends of justice. Therefore, conviction and sentence is liable to be set aside and the revisionists are liable to be acquitted.
4. Brief facts of the case are that on 29.1.1990 at about 1.00 p.m. when complainant was harvesting paddy crops his younger sister Harvati rushed to the field and informed him that accused persons Chandra Pal, Kallu, Hargovind, Raju, Tejpal, Kalua, Babu, Karkesh and Shanker having in their hands lathi, knife, ballam and barchhi are doing marpeet with his pa
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rents. Thereafter, complainant and his brother rushed to the place of occurrence. The accused persons also committed marpeet with the complainant and his parents in presence of some of the villagers. In the said incident, complainant, his father Dhan Singh and his mother Smt. Chhajiya sustained injuries. The said incident was committed due to dispute with regard to house and land between the complainant and accused persons, and accused persons were with full preparation. When some more people from the village gathered there, accused persons went away threatening the complainant side with dire consequences.
5. Subsequently, first information report was lodged on the same day and injured persons were medically examined. After making investigation, the Investigating Officer submitted charge sheet against the accused persons of the offence under Sections 147, 148, 149, 323, 324, 325 and 506 IPC. The accused persons were charged of the said offence who denied the charge. During trial, the case was abated against accused Harkesh on account of his death.
6. The prosecution examined as many as seven witnesses. P.W. 1 Ramesh, P.W. 2 Dhan Singh, P.W. 3 Dhaniya and P.W. 5 Smt. Sushila have been examined as witnesses of fact. P.W. 4 Dr. A.K. Kots. P.W. 6 Dr. N.K. Tandon and P.W. 7 S.I. J.P. Sharma to prove medical report and charge sheet etc. respectively.
7. After hearing the prosecution and defence at great length, learned trial court found that charges against accused persons for the offences under Section 147, 323/149 were established and accordingly they were convicted and sentenced. The learned trial court, however, found that prosecution was not able to prove charges for the offences under Sections 324/149, 325/149 and 506 (2) IPC and, therefore, they were acquitted from these charges.
8. An appeal was preferred before the learned Sessions Judge against conviction and sentence but appeal was dismissed and judgment of trial court was upheld by judgment and order dated 30.6.1999.
9. The main and pertinent attack of learned counsel for the revisionists against the judgment of appellate court is that neither appeal was filed by the State against the judgment of acquittal under Sections 148, 324/149 325/149 and 506 (2) IPC, nor there is discussion in the judgment of appellate court on the said point, but learned appellate court awarded sentence under those sections also in which accused persons were already acquitted.
10. It appears that there was no appeal against the acquittal, nor there is any discussion on this point in the judgment of the appellate court why the acquittal so recorded by the learned trial court was to be interfered with. Moreover, the judgment of acquittal was not set aside and the learned appellate court dealt with the matter as if it was a trial before it. No opportunity appears to have been given to the accused persons to advance his arguments on this point nor they were given opportunity of hearing on sentence. Even Section 386 of the Code of Criminal Procedure which defiance the scope of the powers of the appellate courts, does not contemplate such power vested in the appellate courts. This court is of the firm view that the learned appellate court should have restricted itself to the challenge before it and to the fact that it was an appeal preferred by the appellants against a judgment of the trial court convicting them. Therefore, it is held that the part of the judgment of appellate court convicting and sentencing the appellants under Sections 148, 324/149 325/149 and 506 (2) IPC was totally unwarranted, illegal and is beyond jurisdiction and the learned appellate court has failed to exercise the jurisdiction so vested in it by law. Consequently, conviction and sentence passed by learned appellate court for the offences under Sections 148, 324/149, 325/149 and 506 (2) IPC is liable to be set aside.
11. So far as conviction under Section 147, 323/149 IPC is concerned, learned counsel to the revisionists requested that looking to the fact that revision is pending since 1999 and awarded sentence is not more than one year, appellants/revisionists may be released on probation for maintaining peace and good behavior for specified period. Learned counsel for the revisionist has further argued that the effect of Sections 3 and 4 of the Probation of Offenders Act, 1958, in the background of what is stated in Section 360 of the Code of Criminal Procedure, 1973, has not been kept in view. Learned counsel for the revisionists has also relied upon a judgment in the case of Subhash Chand & others Vs State of UP( 2015 Law Suit (All) 1343.) 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, 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."
12. 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 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.
13. 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, dishonestmisappropriation cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4)An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5)When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6)The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought 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."
14. 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.
15. In this instant case, neither the trial court nor the appellate court has considered the probation law, although, the revisionists were only convicted for the offence under Sections 147 & 323/149 IPC for which the appellants were sentenced for one year and six months respectively. The maximum punishment under section 147 IPC is two years and for the offence under section 323 IPC is one year. 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. Both the courts 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 for both the courts below to do so under the provisions of Section 361 Cr.P.C. It is also pertinent to mention here that some of the accused persons, Harkesh and Shanker are relatives of the complainant side and the incident took place because of the dispute of property between the parties. Moreover, the occurrence relates to the year 1990 and this revision is pending since 1999 and therefore, no purpose of justice will be served if the appellants are sent to jail to undergo the terms of sentence after lapse of such long time.
16. 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 appellant courts. The Registrar General of this Court is directed to circulate copy of this Judgment 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."
17. 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 to execute a bond of one year for good behaviour."
18. 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.
19. In the light of above discussion, I find no illegality, irregularity or impropriety in the impugned Judgments and I feel that the conviction recorded by the trial court under section 147 & 323/149 IPC and upheld by the learned appellate court should be maintained but the sentence should be modified. Consequently, conviction and sentence passed by learned appellate court for the offences under Sections 148, 324/149, 325/149 and 506 (2) IPC is set aside and conviction of revisionists is upheld for the offence under section 147 & 323/149 IPC . The revision is partly allowed with the following modification.
20. Instead of sentencing them to jail, the revisionist shall get the benefit of Section 4 of the Probation of Offenders Act. Further, instead of sentencing him to undergo one year rigorous imprisonment under Section 147 I.P.C., six month rigorous imprisonment under Section 323 I.P.C., the revisionists shall file two sureties to the tune of Rs.25,000/- coupled with personal bonds to the effect that he shall not commit any offence and shall be of 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 as per Rules. The bonds aforesaid be filed by the accused persons within two months from the date of the Judgment.
21. Accordingly, revision is partly allowed.
22. Let a certified copy of this order be sent to the court concerned for compliance.