IMPORTANT POINT
The denial of probation benefits to first offenders without cogent reasons is unreasonable, and the right to be heard is fundamental in criminal proceedings.

JUDGMENT :

(Subhash Vidyarthi J.)

(I.A. No.2 of 2024- Delay Condonation Application)

(I.A. No.3 of 2024- Recall Application)

1. This is an application for condonation of delay in filing an application for recall of the order dated 29.03.2024 which has been filed by the opposite party No. 2 - informant on the ground that the revision has been allowed without issuing notice to her and she was not aware about passing of the order dated 29.03.2024 due to which a delay has occurred in filing the application for recall of the order. Recall of the order dated 29.03.2024 has been prayed on the ground that this order has been passed without giving an opportunity to her to oppose the revision.

2. On 04.06.2024, the learned Counsel for the revisionists had prayed for and was granted three weeks’ time for filing objections against the applications but no objections have been filed till date, indicating that the revisionist does not dispute the averments made in the applications and the affidavits filed in support thereof.

3. Section 410(2) Cr.P.C. provides as follows: -

“(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”

4. Apparently, it was mandatory for this Court to have given an opportunity of hearing to the informant and the order dated 29.03.2024 whereby the revision has been allowed without issuing notice to the opposite party No. 2, is not sustainable in law for this reason. Accordingly, both the applications are allowed. The delay in filing the recall application is condoned and the order dated 29.03.2024 is recalled and the revision is being decided afresh.

5. By means of the instant criminal revision filed under Section 397/401 Cr.P.C, the revisionists have assailed the validity of the judgment and order dated 18.03.2024 passed by the Additional Session Judge/F.T.C-I, District Gonda in Criminal Appeal No. 07/2023 (Manbodh alias Manoj and others Vs. State of U.P. and another) as well as the order dated 08.12.2022 passed by the Civil Judge (J.D.)/F.T.C I Gonda in Case No. 180560 of 2018, in Case Crime No. 45/2018 under Sections 498-A, 323, 504, 506 I.P.C and 3/4 of D.P. Act, P.S Wazirganj, District Gonda, whereby the revisionists were convicted and sentenced to 1 year simple imprisonment and fine of Rs. 5,000/- under Section 498-A, six months simple imprisonment under Section 323 I.P.C, six months of simple imprisonment under Section 504 I.P.C and six months simple imprisonment and fine of Rs. 5,000/- under Section 4 of D.P. Act.

6. The learned counsel for the revisionists confined his submission to the extent that the trial Court has convicted and sentenced all the accused persons for offences under Sections 498-A, 323, 504 I.P.C and Section 4 of Dowry Prohibition Act. However, the benefit of Probation of Offenders Act, 1958 has been granted to co-accused Shiv Pyari but the same has been denied to the revisionists without assigning any cogent reason. The learned counsel for the revisionists has further submitted that the revisionists are also first offenders, they have no criminal history and they have been implicated in the present case because of a matrimonial dispute and proceedings for divorce are already pending.

7. The learned counsel for the opposite party No. 2 has submitted that a Criminal Revision cannot be allowed without summoning the trial Court’s record as per the statutory provision contained in Section 397 Cr.P.C. He has further submitted that the record can only be summoned after admission of the revision and the revision has to be heard finally after receipt of the record.

8. The learned counsel for the opposite party No.2 has further submitted that the conduct of the revisionists did not warrant exercise of discretion by this Court in their favour by granting the benefit of Probation of Offenders Act, 1958 to them as the revisionists had ill-treated the informant and had neither