SALEEMA Vs. STATE OF J AND K

JUDGEMENT

(1.) The question for consideration is that after recording conviction, whether trial court without considering the grant or denial of the benefit under Section 562 Code of Criminal Procedure could sentence the accused to any punishment.

(2.) According to learned Counsel for Appellant Section 562 Code of Criminal Procedure has an object of reformation. Non-consideration of grant of probation will defeat the object and the accused will loose the chance of reformation by being incarcerated in prison. Learned trial court has not considered the grant or denial of the benefit under Section 562 Code of Criminal Procedure, therefore, sentence of punishment awarded is liable to be set aside. In support of this contention, relied on the judgment Eliamma and Anr. v. State of Karnataka, 2009 1 Crimes(SC) 355.

(3.) Learned Counsel appearing for the complainant (Respondent) contended that the Appellant(accused) after having been convicted was required to file an application so as to seek benefit of Section 562 Code of Criminal Procedure, further added that the judgment as relied by the learned Counsel for the Appellant is of no help to the Appellant because Section 562 Code of Criminal Procedure (State Code) corresponds to Section 360 Code of Criminal Procedure (Central Code). In the Central Code there is one more provision i.e. Section 361 and the conjoint reading of Section 360 and 361 Code of Criminal Procedure enjoins upon recording of reasons for not according benefit under Section 360. The judgment as referred is based on conjoint reading of both Section 360 and 361 Code of Criminal Procedure (Central) so is not applicable to the present case.