Dori and Others Vs State

This criminal appeal has been preferred against the judgment and order dated 13.2.1985, passed by Ist Additional District and Sessions Judge, Budaun, in Sessions Trial No. 26 of 1984, cross case of S.T. No. 162 of 1983 convicting the said appellants to undergo rigorous imprisonment for six months under Section 147 IPC and also to undergo rigorous imprisonment for six months under Sections 323/149 IPC. Both the sentences were directed to run concurrently.

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Learned counsel for the accused-appellants submits that the accusedappellants have not been convicted previously for any offence and they are 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.

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In view of the aforesaid submission of the learned counsel for the accused-appellants, 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.

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Learned counsel for the accused-appellants further submits that in view of the aforesaid facts and circumstances, including the fact that the accusedappellants have 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).

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The trial court did neither invoke the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C., while sentencing the accusedappellants.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

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CRLA No. 520 of 1985

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2

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provisions of Section 360 Cr.P.C., or the provisions of the Act, 1958.

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Learned counsel for the accused-appellants 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.

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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.

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The accused-appellants have 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.

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Learned AGA, appearing for the State does not dispute the fact that the accused-appellants are 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-appellants 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.

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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-appellants. However, they are granted benefit of Section 4 of the Act. The accused-appellants are released on probation. The accused-appellant nos. 2 & 3, namely, Sheoraj and Bhoopal shall file personal bond to the tune of Rs. 20,000/ each and they shall keep peace in the society and shall not commit any such offence in future. The bond shall be for one year.

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In case of breach of any such condition, the accused-appellants will subject himself to undergo the sentences before the trial court as per law. The accused-appellants shall file the bond within a period of one month from today.

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Let a copy of this judgment as well as the record be transmitted to the concerned trial court forthwith for necessary compliance.

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February 19, 2026 M. Tarik

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(Abdul Shahid,J.)

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Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad

Dori and Others v. State

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Dori and Others v. State

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