HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 1819 of 1987 Court No. - 53 HON'BLE ABDUL SHAHID, J. 1. Heard Ms. Nikki Verma, Advocate holding brief of Sri Bhaiya Ram, learned counsel for the appellants and the learned AGA for the State. 2. This criminal appeal has been preferred against the judgment and order dated 15.7.1987, passed by Special Judge (Anti Dacoity)/IVth Additional Sessions Judge, Mainpuri in Special Trial No. 25 of 1984 (State Vs. Kamta Prasad and 28 others). 3. The present Criminal Appeal has been filed by 12 appellants and 10 appellants had died during the pendency of the present criminal appeal. Hence, proceedings of present criminal appeal is dismissed as abated against them. 4. Now, there are only two appellants have been left, who are alive viz. Appellant No.2- Satya Dev son of Mata Din and appellant No.6- Rameshwar Dayal son of Sobha Ram. The appellant no. 6- Rameshwar Dayal has been convicted and sentenced for a period of one year and he was released on probation by the learned trial court itself on 15.7.1987 for a period of probation of two years. If he has successfully completed the period of probation since 15.7.1987, then he shall be released forthwith. 5. So far as appellant no.2- Satya Dev is concerned, he has been convicted and sentenced by the learned trial court for a period of two years and three months. 6. Learned counsel for the accused-appellant no.2 submits that the Versus Counsel for Appellant(s) : Bhaiya Ram, S.P. Tiwari Counsel for Respondent(s) : A.G.A. Kamata Prasad and others. .....Appellant(s) State of U.P. .....Respondent(s) accused-appellant has not been convicted previously for any offence and he is the first time offender. He at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the criminal appeal only with respect to the order of sentence. 7. In view of the aforesaid submission of the learned counsel for the accused-appellant, the criminal appeal is dismissed so far as it relates to the impugned judgment and order of conviction, passed by the learned trial court. The impugned judgment and order of conviction passed by the learned trial court is hereby, upheld. 8. Learned counsel for the accused-appellant further submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellant has not been convicted previously for any offence, the trial court ought to have invoked the provisions of the Probation Offenders Act, 1958 (hereinafter referred to as 'the Act' for the sake of brevity). 9. The trial court did neither invoke the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C., while sentencing the accused- appellant.The trial court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C., or the provisions of the Act, 1958. 10. Learned counsel for the accused-appellant submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of Section 361 Cr.P.C. and, therefore, it cannot be sustained. 11. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise, is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act. 12. The accused-appellant has statutory right for claiming the benefit of CRLA No. 1819 of 1987 2 beneficial legislation i.e. the provisions of the Act and the learned trial court was under a duty to consider the applicability of Section 360 Cr.P.C or Sections 3 or 4 of the Act as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C or provisions of the Act were not applied, then the learned trial court should have recorded reasons for the same. 13. Learned AGA, appearing for the State does not dispute the fact that the accused-appellant is the first time offender and were not previously convicted in any other case. He further submits that in view of the express provisions of Section 361 Cr.P.C, considering the facts and circumstances, nature of the offence, the character of the accused- appellant and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act can be granted in this case. 14. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this criminal appeal is, accordingly dismissed by upholding the conviction of the accused- appellant no.2. However, he is granted benefit of Section 4 of the Act. The accused-appellant no.2 is released on probation. The accused- appellant shall file personal bond to the tune of Rs. 20,000/ and he shall keep peace in the society and shall not commit any such offence in future. The bond shall be for one year. 15. In case of breach of any such condition, the accused-appellant will subject himself to undergo the sentences before the trial court as per law. The accused-appellant shall file the bond within a period of one month from today. 16. Let a copy of this judgment as well as the record be transmitted to the concerned trial court forthwith for necessary compliance. April 1, 2026 sfa/ CRLA No. 1819 of 1987 3 (Abdul Shahid,J.) Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad