The Lucknow Bench of the Allahabad High Court while allowing a petition said that when all the accused persons have been found guilty of committing the same offences, granting benefit of Section 4(1) of the Probation of Offenders Act, 1958 to one of them and denying the same benefit to the revisionists “keeping in view the nature of the offence” appears to be unreasonable.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Revision filed by Manbodh @ Manoj And 2 Others.
This is an application for condonation of delay in filing an application for recall of the order dated 29.03.2024 which has been filed by the opposite party No 2 – informant on the ground that the revision has been allowed without issuing notice to her and she was not aware about passing of the order dated 29.03.2024 due to which a delay has occurred in filing the application for recall of the order. Recall of the order dated 29.03.2024 has been prayed on the ground that this order has been passed without giving an opportunity to her to oppose the revision.
On 04.06.2024, the Counsel for the revisionists had prayed for and was granted three weeks’ time for filing objections against the applications but no objections have been filed till date, indicating that the revisionist does not dispute the averments made in the applications and the affidavits filed in support thereof.
By means of the criminal revision filed under Section 397/401 CrPC, the revisionists have assailed the validity of the order dated 18.03.2024 passed by the Additional Session Judge/FTCI, District Gonda in Criminal Appeal as well as the order dated 08.12.2022 passed by the Civil Judge (J.D)/FTC I Gonda in Case under Sections 498-A, 323, 504, 506 IPC and 3/4 of DP Act, PS Wazirganj, District Gonda, whereby the revisionists were convicted and sentenced to 1 year simple imprisonment and fine of Rs 5,000/- under Section 498- A, six months simple imprisonment under Section 323 IPC, six months of simple imprisonment under Section 504 IPC and six months simple imprisonment and fine of Rs 5,000/- under Section 4 of DP Act.
The counsel for the revisionists confined his submission to the extent that the trial Court has convicted and sentenced all the accused persons for offences under Sections 498-A, 323, 504 IPC and Section 4 of Dowry Prohibition Act. However, the benefit of Probation of Offenders Act, 1958 has been granted to co-accused Shiv Pyari but the same has been denied to the revisionists without assigning any cogent reason.
The counsel for the revisionists has further submitted that the revisionists are also first offenders, they have no criminal history and they have been implicated in the case because of a matrimonial dispute and proceedings for divorce are already pending.
The counsel for the opposite party No 2 has submitted that a Criminal Revision cannot be allowed without summoning the trial Court’s record as per the statutory provision contained in Section 397 CrPC.
He has further submitted that the record can only be summoned after admission of the revision and the revision has to be heard finally after receipt of the record.
The counsel for the opposite party No 2 has further submitted that the conduct of the revisionists did not warrant exercise of discretion by this Court in their favour by granting the benefit of Probation of Offenders Act, 1958 to them as the revisionists had illtreated the informant and had neither provided due respect to her nor has the informant been provided any financial support, although a suit for divorce between the informant and the revisionist No 1 is said to be pending.
The Court noted that,
Section 397 CrPC empowers the High Court to call for and examine the record of any proceeding before any inferior Criminal Court to arrive at a satisfaction as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court.
The plain and simple meaning of the words used in Section 397 CrPC indicates that the High Court has discretion to call for the record of any proceeding, if it is necessary to arrive at a satisfaction as to the correctness, legality or propriety of any finding, sentence or order.
Although the revisionists have challenged the order of conviction, the counsel for the revisionists had confined his submission to the extent that the trial Court had declined the benefit of the Probation of Offenders Act, 1958 to revisionists whereas the same benefit was granted to a co-accused Shiv Pyari.
Where the correctness, legality or propriety of any finding or sentence is not under challenge and the only challenge is to the differential treatment between co-accused persons in the matter of granting benefit of the Probation of Offenders Act without assigning any cogent reason, which is apparent from a bare perusal of the impugned order itself, there is no requirement of calling for the trial Court’s record, the Court said.
“Section 4(1) of the Probation of Offenders Act, 1958 comes into play only when a person has been held guilty of committing an offence. The fact that the revisionists have been found guilty of committing the offences under Sections 498-A, 323, 504 IPC and Section 4 of the Dowry Prohibition Act, has given rise to an occasion for claiming the benefit of Section 4(1) of the Probation of Offenders Act, 1958. This fact cannot be a ground for denying the benefit of Section 4(1) of the Probation of Offenders Act, 1958 to the revisionists.
The submission made by the counsel for the opposite party No 2 that the revisionists have not provided any maintenance or monetary support to the informant, is the subject matter of matrimonial proceedings between the revisionist No 1 and the opposite party No 2 and it does not make out a ground for denying the benefit of Section 4(1) of the Probation of Offenders Act, 1958 to the revisionists.
The trial Court has merely stated that the co-accused Shiv Pyari is granted the benefit of Section 4(1) of the Probation of Offenders Act, 1958 and keeping in view the nature of the offence, the revisionists are not entitled to the same benefit. When all the accused persons have been found guilty of committing the same offences, granting benefit of Section 4(1) of the Probation of Offenders Act, 1958 to one of them and denying the same benefit to the revisionists “keeping in view the nature of the offence” appears to be unreasonable.
As the aforesaid unreasonableness in the impugned order is apparent on the face of the impugned order itself, it does not need examination of the entire record of the trial Court.
In view of the aforesaid facts, the Court is of the considered view that the Trial Court’s order dated 08.12.2022 to the extent that it denies the benefit of Probation of Offenders Act, 1958 to the revisionists, is unsustainable in law”, the Court further observed while allowing the petition.
“The order dated 08.12.2022, passed by the Civil Judge (JD)/FTC – I Gonda in Case under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Wazirganj, District Gonda is modified to the extent it denies the benefit of Section 4(1) of Probation of Offenders Act, 1958 to the revisionists and it is provided that in case the revisionists appear before the trial Court and furnish personal bonds and two sureties for their appearance to receive sentence of one year as and when called upon and in the meantime to keep the peace and be of good behavior, the Court shall release them on probation of good conduct. The revisionists shall pay the amount of fine imposed by the trial Court.
In case the revisionists fail to observe the aforesaid condition of furnishing a personal bond and two sureties, the benefit of the order shall not be available to them,” the order reads.
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