1. The present appeal has been preferred against the judgment and order dated 09.02.2000 passed by Special Judge, Anti Corruption (W) Lucknow convicting and sentencing the appellant under Section 120B IPC to undergo one year rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine, further rigorous imprisonment of 6 months; under Section 420 IPC to undergo one year rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine further rigorous imprisonment for a period of 6 months, under Section 5(2) r/w 5(i)(d) of the Prevention of Corruption Act to undergo one year rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine, further period of six months rigorous imprisonment. It was directed that all the sentences would run concurrently.
2. Learned counsel for the accused-appellant submits that accused-appellant has not been convicted previously for any offence and he is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.
3. In view of the aforesaid submission of learned counsel for the accused-appellant, the 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.
4. Learned counsel for accused-appellant 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 of Offenders Act, 1958 (hereinafter referred to as 'the Act').
5. 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 Act, 1958.
6. 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.
7. 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.
8. 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.
9. Learned AGA appearing for the State does not dispute the fact that accused-appellant is the first time offender and was not previously convicted in any other case. He also 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.
10. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellant. However, he is granted the benefit of Section 4 of the Act. The accused-appellant is released on probation. The accused-appellant shall file personal bonds to the tune of Rs.20,000/- and he shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year.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 bonds within a period of one month from today. Disposal of the appeal under the Probation of Offenders Act will not be treated to affect the service or the pensionary benefit of the accused-applicant as provided under Section 12 of the Act.
11. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 20.12.2019 prateek