The main legal point established is the application of the Probation of Offenders Act to modify the sentence based on the circumstances of the case.

JUDGMENT :

1. Heard learned counsel for the revisionist and learned A.G.A. for the State.

2. This criminal revision has been preferred against the judgment and order dated 22.4.2011 passed by the Additional Sessions Judge, Court No.3, Hardoi in Criminal Appeal No.42 of 2010 and the judgment and order dated 3.3.2010 passed by the S.D.M., Bilgram, Hardoi in Case No.39/4104 of 2002, Case Crime No.263/2002 thereby convicting the sentencing the revisionist under Section 198-A(2) of U.P.Z.A. & L.R. Act for three months imprisonment and fine of Rs.1,500/-.

3. Learned counsel for the revisionist has submitted that the finding recorded by learned trial Court regarding the conviction of revisionist, under Section 198A(2) U.P.Z.A. & L.R. Act is against the weight of evidence, which is illegal and not sustainable in the eye of law because there was a civil dispute pending between the parties. Therefore, the impugned order of conviction is liable to be set aside.

4. Per contra, learned A.G.A. has submitted that the finding of conviction by learned trial Court has been recorded on the basis of proper analysis and appreciation of evidence. Therefore, the same cannot be termed illegal or perverse and no interference by this Court in exercise of its revisional jurisdiction is warranted.

5. Having heard learned counsel for the parties and upon perusal of the record, it transpires that the learned trial Court as well as appellate Court has clearly recorded a finding of fact that Plot No.458/0.253 hectare was initially allotted to Harishankar, who was handed over the possession of the same. Thereafter, Harishankar, allottee was dispossessed by the present revisionist, Ram Prakash Pandey. The finding of the said fact is duly supported by the evidence of PW-2, Mahendra Kumar, Lekhpal of the area concerned. As such no illegality or perversity is decipherable from order of Additional Sessions Judge, Court No.3, Hardoi dated 22.04.2011 and order dated 3.3.2010 passed by the S.D.M., Bilgram, Hardoi. Therefore, there is no ground to interfere with the finding of conviction under Section 198A(2) U.P.Z.A & L.R. Act.

6. Section 198A(2) U.P.Z.A & L.R. Act provides as under:-

"198-A.....................…

1..............…

(2) Where any person, after being evicted under this section, re-occupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees:

Provided that the court convicting the accused may, while passing the sentence, direct that the whole or such portion of the fine that may be recovered as the court considers proper be paid to the allottee or lessee, as the case may be, as damages for use and occupation."

7. Having regard to the aforesaid provision and also keeping in view the fact that there is noting on record to show that the revisionist has been a previous convict or a person who has criminal antecedents. It is useful to quote Sections 4 of Probation of Offenders Act, 1958:-

"4. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 the court shall not direct such release of an offender unless it is satisfied that the offender or his sur