Courts mandatorily consider probation for eligible offences under three years' imprisonment, recording reasons for denial; long pendency, no antecedents justify reformatory release over punishment.

JUDGMENT :

NAND PRABHA SHUKLA, J.

1. Heard learned counsel for the surviving appellant No. 4 Ram Singh, Mr. Ratan Singh, learned A.G.A.-I for the State and perused the record.

2. This appeal under Section 374 Cr.P.C. has been preferred against the judgment and order dated 17.07.1987 passed by Special Judge (E.C. Act) Etah in S.T. No. 157 of 1986 convicting and sentencing the appellant Nos. 1 to 6 under Section 147 IPC to undergo for 6 months R.I. and accused Todi Singh and Bhopal to undergo R.I. for one year u/s 323 and Nannu Singh, Yad Ram, Ram Singh and Kundan Singh to undergo for a period of 1 year R.I. under Section 323/149 accused Yad Ram, to undergo for 3 years R.I. under Section 325 and accused Nannu Singh, Todi Singh, Ram Singh, Bhopal and Kundan Singh to undergo for a period of three years R.I. under read with Section 149 and accused Nanu Singh to undergo for a period of 5 years R.I. under Section 304 .

3. Today, the present Criminal Appeal is listed under the category of oldest pending cases in this High Court for priority basis.

4. The appeal against the appellant No. 1 Nannu Singh, appellant No. 2 Yadram, appellant No. 3 Todi, appellant No. 5 Bhopal alias Pappu and appellant No. 6 Kundan Singh is already abated on 10.12.2025.

5. With the assistance of the learned State Counsel and from the perusal of records, it transpires that the appellant No. 4 Ram Singh is surviving and has been convicted for the offences under Section 325 read with Section 149 IPC sentenced for three years' R.I.

6. In the case of Subhash Chand & others Vs. State of U.P. (2015 Law Suit (All) 1343) and the judgment passed in Criminal Revision No. 1319 of 1999 (Hargovind & Others vs. State of U.P.) passed by this Court on 11.01.2019.

Section 3 of the Probation of Offenders Act reads as follows:

"3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

7. Thus, this was the bounden duty of the learned Trial Court and also the appellate court to consider why they did not proceed to grant the benefit of Probation of Offenders Act.

Section 4 of the Probation of Offenders Act reads as follows:

"4. Power of court to release certain offenders on probation of good conduct.-(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 of