MENHADI Vs. STATE OF U P

JUDGEMENT

(1.) Sri S.K. Venna, Advocate, appears on behalf of Sri P.K. Bisaria learned counsel for the revisionists. Learned AddI. Govt. Advocate is present on behalf of the State in person. Heard learned counsel for the parties.

(2.) Menhadi, Safi, Udal, Murad, Mustaq, Bandu, Allah Mahar and Idris accused-revisionists were convicted by Sri. S.K. Srivastav Turd AddI. Munsif Magistrate Kasgang in Criminal Case No. 352 of 1982, State v. Menhadi and others, under Sections 147, 323 and 452 I.P.C. and sentenced to undergo R.I. for three months each under Section 147 I.P.C. to suffer R.I. for a period of six months each under Section 323 I.P.C. and R.I. for a period of one year and to pay a fine of Rs. 100/- each under Section 452 I.P.C. by his order dated 24-8-1982. In default of payment of fine the accused-revisionists were directed to undergo simple imprisonment for a period of one month each. All these sentences were ordered to run concurrently. By the aforesaid order accused Nathi was convicted of each offence but given the benefit of section 4 of the U.P. Probation of First Offenders Act. All the eight accused-revisionists and accused Nathi preferred Criminal Appeal No. 144 of 1982 against the judgment and order dated 28-4-1982 of the Turd AddI. Munsif Magistrate, Kasganj before the Sessions Judge, Etah. In that criminal appeal the merit of the convictions was not challenged but only the benefit of Section 4 of the U.P. Probation of First Offenders Act was sought in respect of all the remaining accused. In the appellate judgment, there is no mention about the benefit of provisions of U.P. Probation of First Offenders Act having been granted to one accused, namely Nathi in Para 1 where the sentences awarded by the trial court to the accused are enumerated. This fact of giving the benefit of Probation of First Offenders Act by the trial court to one accused Nathi has however been mentioned in third paragraph of the judgment and the benefit of the Probation of First Offenders Act has been extended to all other accused persons. However, while extending the benefit to them and suspending the sentences of each one of them a condition of furnishing one surety each in the amount of Rs. 2000/- for keeping the peace and being of good behaviour for a period of one year and also to execute a personal bond in the like amount has been imposed. The Sessions Judge, Etah by his judgment and order dated 19-1-1983 thus maintained the sentence of fine and did not suspend it. Aggrieved by the judgment and order of the Sessions Judge, Etah aforesaid the present accused revisionists have preferred the present revision.

(3.) In the present revision the only point that has been taken is that while granting the benefits of Section 4 of the U.P. Probation of First Offenders Act, the sentence of fine should also have been suspended and relief has been sought against this illegality committed by the Sessions Judge concerned in not suspending the sentence of fine also in his judgment. Here I may mention that while admitting the revision this Court had stayed the realisation of fine but the order regarding execution of probation bonds was not stayed. This order was passed by this Court on 28-1-1983. The judgment of the appellate court was dated 19-1-1983 which means that if the bonds have been furnished within 15 days from the date of the judgment of the lower appellate court dated 19- 11-983 the period of one year would have expired long ago.