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Mahesh & Another v. State - CRIMINAL REVISION No. 958 of 1989 [2007] RD-AH 6626 (11 April 2007)


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Court No.11

Criminal Revision No.958 of 1989

Mahesh and another...Vs...... State of U.P.


Hon'ble V.D.Chaturvedi,J.

This Criminal revision has been filed against the judgment and order dated 6.6.89 passed by the learned Sessions Judge Rampur in Criminal Appeal no. 1406/89.

The revisionists Mahesh and Gauri Sahai were convicted by the learned C.J.M. by his order dated 9.3.89 for the offences u/s 323/34 and 324/34 I.P.C.  They  were  sentenced to 6 months' R.I.  and  one years' R.I. respectively with the direction that the sentences shall run concurrently.  

The learned Sessions Judge (in Criminal appeal no. 1406/89)  upheld the conviction of the revisionist on both counts but set aside the sentence awarded to them. He directed that the appellants (revisionists) would be released on probation of good conduct u/s 4(1) of the Probation of Offender's Act, 1958 ( hereinafter referred to as the Act) on each of them executing  a bond of Rs. 1000/-  and furnishing one  surety of the like amount. The learned Sessions Judge further directed  that each of the appellants  would pay a sum of Rs. 750/- out of which the sum of Rs. 500/- would be  equally paid to each of the  injured persons and the rest (Rs.250/-) will be paid to the State Government  as costs  of the proceedings.

The "punishment " is defined u/s 53 I.P.C. It includes the 'fine'.

Section 4 of the Probation of Offenders Act 1958 provides that in the given  circumstance,

" 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."

It is obvious from perusal of  sub section (1) of Section 4 of  the Act that  where the court gives benefit  under sub section (1) of Section 4 of the Act to any accused, the court is not supposed to  sentence the accused at once to any punishment but direct his release on his executing the bond to keep the peace and be of good behaviour.

The order directing each of the accused to pay Rs.750/- ( to be paid to the injured or to the State Government) clearly indicates that these amount were to be paid as  a fine. The omission of the word 'fine' in the impugned order is immaterial. The direction to the accused to pay any  amount to the victims or to the State Government is nothing  but the imposition of fine. The giving of the benefit of Section 4(1) of the Act on one hand and simultaneously imposing of fine on other hand is against the spirit of Section 4(1) of the Act. The impugned order thus suffers from the above infirmity and deserves to be set aside.

The revision is, therefore, allowed. The judgment and order dated 6.6.89 (passed in criminal appeal 1406/89) is set aside. The learned Sessions Judge is desired to summon and hear both the parties and  to pass the order a fresh.




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