HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 712 of 2002 Court No. - 29 HON'BLE ABDUL SHAHID, J. 1. Heard learned counsel for the accused-appellants and the learned AGA for the State. 2. This criminal appeal has been preferred against the judgment and order dated 14.5.2002, passed by Additional Sessions Judge/Special Judge, SC/ST (P.A.) Act, Sultanpur in Session Trial No. 218/1996 (State Vs. Jagat Pal and others, convicting and sentencing the appellants under Section 323 IPC read with Section 34 IPC for six month RI and fine of Rs. 1000/. 3. Learned counsel for the appellant has informed to this Court that the appellant no. 1Jagat Pal and appellant no. 2/ Santosh Kumar have died and report in this regard has also been submitted by the concerned Chief Judicial Magistrate dated 7.10.2021. Therefore, appeal against them be abated. 4. In view of above, the appeal against the said appellant nos. 1 and 2 Jagat Pal and Santosh Kumar, respectively is dismissed as abated. 5. Learned counsel for the accused-appellant no.3-Vindhya Din submits that the 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. 6. 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. 7. 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 Versus Counsel for Appellant(s) : Bajrang Bahadur Singh, Manoj Kumar Singh Counsel for Respondent(s) : Govt.Advocate Jagat Pal And Ors.2 .....Appellant(s) State of U.P. .....Respondent(s) 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). 8. 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. 9. 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. 10. 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. 11. The accused-appellant has statutory right for claiming the benefit of 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. 12. Learned AGA, appearing for the State does not dispute the fact that the accused- appellant is the first time offender and was 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. 13. 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. 3. However, he is granted benefit of Section 4 of the Act. The accused-appellant no. 3-Vindhya Din 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. 14. 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. CRLA No. 712 of 2002 2 15. Let a copy of this judgment as well as the record be transmitted to the concerned trial court forthwith for necessary compliance. November 14, 2025 sfa/Mt. CRLA No. 712 of 2002 3 (Abdul Shahid,J.) Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad, Lucknow Bench