Munshi and Others vs State of U.P.

D.P.S. Chauhan, J.—The applicants, Munshi, Man Singh, Jamuna and Sanwaliya, were convicted vide order dated 3-6-1985 passed by the Judicial Magistrate (Special Court No. 3) Rampur for offence Under Sections 323/34 and 324/34 IPC Under Sections 323/34 IPC, all the applicants were sentenced to a fine of Rs. 100/- each but Under Sections 324/34 IPC the applicant No. 1 (Munshi) and applicant No. 4 ( Sanwaliya) were convicted and sentenced to undergo rigorous imprisonment for a period of 6 months. The applicants were also required to undergo 15 days'' RI on default of the payment of tine fine. Against this order, the applicants preferred an appeal numbered as Criminal Appeal No. 83 of 1985, which was dismissed by the Sessions Judge Rampur on 14-1-1986 and the present revision is out-come of the aforesaid conviction and sentence.

The revision was admitted by this Court on 27-1-1986 only on the question of sentence, but the applicants were required to deposit the fine imposed on them. Accordingly the matter for consideration of question of sentence remains only in respect of the applicant No. 1 Munshi and applicant No. 4 Sanwaliya.

Since the revision is admitted only on the question of sentence, it is not necessary to go into details and merit of the case.

Heard learned Counsel for the applicants, Sri. Manzarul Islam and learned Counsel for the State. learned Counsel for the applicants submitted that the Courts below have not only acted illegally but have failed to discharge the statutory obligation by not allowing the applicants the benefit of beneficial legislation i.e. U.P. Probation of First Offenders Act, 1938 and the trial Court has not recorded any reasons for not granting benefit inspite of the entitlement of the applicants.

The argument of the learned Counsel for the applicants has got force. The trial'' Court has not recorded the special reasons as required under the law and has not said that the applicants were not required to be treated u/s 361 Code of Criminal Procedure.

The scheme under the Act relates to dealing with the offender in such a manner that he becomes non-offender. The provisions of Section 360 of the Code of Criminal Procedure 1973, were made inapplicable in the State of U.P. by the U.P. Amendment made by an U.P. Act No. 16 of 1976. The provisions of Section 361 Code of Criminal Procedure which are mandatory in nature, are applicable in the State of U.P. with the modification as made by the U.P. Act No. 1976 "that the reference of Central Act named therein" shall be substituted by references to the corresponding Acts in force in the State. The provisions of U.P. First Offenders Act 1938 have been made to continue in force in the State of U.P. until altered or rescinded. This Act has not been repealed and has got full application in the State of U.P. The Courts below were under a duty to find out the detailed material and to give the benefit of the beneficial legislation to the applicants to fulfil the object of providing opportunity to the offender for becoming non-offender.

The Supreme Court in Ved Prakash Vs. State of Haryana, observed as follows:

We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine, or mechanical prescription acting on hunch. The trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime door are very relevant although in practice criminal Courts have hardly paid attention to the social milieu, or the personal circumstances of the offender. Even if Section 360 Code of Criminal Procedure is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with the rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the Counsel. Indeed, members of the Bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislations which relate to emelioration in punishment have been regarded as ''Mino Acts,'' and therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of Offenders Act.

The scheme of the Act under the Code of Criminal Procedure is clear that the Court after establishment of the guilt beyond reasonable doubt has to hear the accused persons on the question of, sentence and after hearing on the question of sentence, it has been made obligatory on the Courts to treat the applicants in the State of U.P. u/s 361 Code of Criminal Procedure if the accused is entitled for being treated thereunder and to give the benefit of the beneficial social legislation such as U.P. Probation of First Offenders Act, 1938. In case the Court considers for not giving the benefit to the accused person then a statutory obligation is cast on the Court to record the special reasons for not doing so.

In the present case, the trial Court has not recorded any special reasons for not treating the applicants u/s 361 Code of Criminal Procedure and for not granting the benefit of the beneficial legislation. Of course, the special reasons cannot be catalogued but just few may be, as enumerated hereunder:

(a) the offender is not a youth having, no chances of reform.

(b) the offence is heinous.

(c) the offence is committed by professional or hardened criminal.

(d) the offence has been committed in a brutal manner.

(e) the offence is committed on a helpless child, or, woman, or like.

(f) the offence is committed by a public servant betraying the faith/trust of the people.

(g) the offender is a previous convict having ones entered the benefit of First Offenders Act 1930.

In the present case the trial Court and even the appellate Court failed to consider any such factor and did not record any special reason for not treating the applicants under the provisions of the U.P. Probation of First Offenders Act, 1938. There is nothing on record which disentitle the applicants for being granted the benefit of beneficial legislation.

Keeping in mind the facts and circumstances of the case and the object of punishment to achieve the objective of reformation, I am of the view that the ends of justice would better be served if the applicants instead of being sent to prison are directed to be released on execution of bond of good behaviour for a period of 1 year and furnishing two sureties of Rs. 500/-each and personal recognizance bond of the same amount. In case the applicants are found to commit some offence during this period, they will be directed to appear and receive the sentence which has been imposed on them. The applicants are directed to appear before the Chief Judicial Magistrate, Rampur along with the certified copy of this judgment to comply with the direction, which would be done within a period of 1 month from today and during this period they shall continue to remain on bail.

With the above direction, the revision is dismissed.