High Court allowed revision partly, confirming conviction under Arms Act but directed release on probation for six months instead of immediate imprisonment.
Revisionist confirmed convicted but directed to be released on probation of good conduct on personal bond with sureties for six months.
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Court No. - 42 Case :- CRIMINAL REVISION No. - 202 of 1991 Revisionist :- Ashok Kuamr And Others Opposite Party :- State Counsel for Revisionist :- J.S. Kashyap,Anurag Dubey,Harishchandra,Rajiv Gupta Counsel for Opposite Party :- A.G.A.
Hon'ble Siddharth,J.
Heard Shri Rajiv Gupta, learned counsel for the revisionist and Shri Jai Narayan, learned A.G.A appearing for the State.
This criminal revision is directed against the order dated 20.7.1988 passed by the trial court and appellate order dated 30.1.1991 passed by the Sessions Judge, Mainpuri in Criminal Appeal no.44 of 1988. The revisionists have been convicted under section 5/7/25 of the Arms Act by the trial court for undergoing simple imprisonment for three years each and payment of fine of Rs. 200/- each.
The prosecution case in brief is that on 17.7.1985 police party of police station Shikohabad got information that case property of crime no. 277 under section 300 I.P.C. is kept in the house of revisionist no,2 and when the house was raided the revisionists were arrested. From the search in the house one electric rod was giving light and two persons were found manufacturing country made pistols. Some country made pistols manufactured by them and some half made Tamanchas and their barrels and other implements were lying there in possession of said two persons.The implements for manufacturing Tamachas were recovered. The revisionists were arrested and after completing the investigation, Investigating Officer submitted charge sheet before the court below.
The accused denied their involvement in the crime and thereafter they were subjected to trial.The witnesses in the trial were only police personnel and statements of the accused were recorded in defence.The trial court punished the revisionist with sentence of simple imprisonment for three years each and fine of Rs. 200/- each under section 5/27/25 Arms Act. In case of failure of depositing
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the fine,they were to undergo simple imprisonment for fifteen days. The Criminal Appeal no.44 of 1988 was preferred by the revisionists before the appellate court which dismissed with the modification that sentence of three years was reduced to two years simple imprisonment but the order regarding fine remained intact.
Shri Rajiv Gupta, learned counsel for the revisionists has argued that there is no public witness of the incident and police party who arrested the revisionists deposed before the court below and conviction of the revisionists were made on the basis of their testimony. He has further argued that there are no details of the items recovered by the police party and on the basis of vague allegations, which were not proved, revisionists have been convicted and sentenced.
Per contra learned A.G.A. has argued that revisionists have been arrested on the spot and manufactured and semi manufactured Tamachas and implements for manufacturing of the same have also been recovered. For such case no public witnesses could be found.He has supported the judgement of the trial court and has argued that sentence has already been reduced by one year by the appellate court.There exist no justification for granting any latitudes to the revisionists.
Learned counsel for the revisionists has further argued that police made out a case of chance recovery since police party raided the house of accused Santosh on the information of stolen property kept in his house.Thereafter recovery of Tamachas and manufacturing implements have been shown.
From the perusal of the judgements of both the courts below there is no criminal history of the revisionists prior to this incident.
This incident is of the year 1985 and much time has passed. Learned counsel for the revisionist has prayed that benefit of Section 360 Cr.P.C. may be granted to the revisionist.The mandatory provision
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of Sections 360 and 361 Cr.P.C., which is as follows :-
Section 360 in The Code Of Criminal Procedure, 1973
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, dishonest misappropriation, 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
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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 subsection (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 a 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.
Section 361 in The Code Of Criminal Procedure, 1973
361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-
(a) an accused person 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. The language employed in Section 360 Cr.P.C shows that stress is upon making an attempt at inflicting convict. To make it obligatory on the part of the Court to deal with the cases under Section 360 Cr.P.C it has been clearly mentioned in Section 361 Cr.P.C. if a case is not dealt with under Section 360 Cr.P.C the Court has to record special reasons for not doing so in its judgment. In the instant case there is no earlier offence alleged or reported against the revisionist.
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Learned AGA could also not bring to the notice of the Court any other depravity in the character of the revisionist which may show him to be a incorrigible nature which is required for declining the benefit of probation to these convicts.
In these circumstances considering the age, character and antecedents of the accused revisionist, the interest of justice would be served if he is extended the benefit of Section 360 Cr.P.C.
The criminal revision is partly allowed.
The conviction of the revisionist under Section 5/7/25 Arms Act is confirmed. Instead of immediately sentencing the revisionist to undergo imprisonment he is directed to be released on probation of good conduct on executing personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned for a period of six months to keep peace and be of good behaviour. The bonds be filed within six weeks from the date of judgement. In case of breach to appear and receive the sentence when called upon during the above period of keeping peace and good behaviour and in default to execute the bonds, as above, within the stipulated time, the revisionist would serve out the sentence under Section 5/7/25 Arms Act as imposed by the Court below.
Let a copy of this judgment be sent immediately to the Court concerned along with Lower Court record for ensuring necessary compliance which should be reported to the Court within eight weeks.
Order Date :- 7.7.2018
Atul kr. sri .
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1 issue framed by the court
Whether the benefit of Section 360 Cr.P.C. regarding probation of good conduct should be extended to the revisionist.
1 provisions across 1 enactments
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
