- (1.) K. S. Rakhra, J. This is a revision against the judgment and order dated 29-11-2005, passed by Additional Sessions Judge/fast Tract Court IV, Court Room No. 13, Sultanpur, dismissing Criminal Appeal No. 40 of 2005, Mufees and Ors. v. State of U. P. , against the judgment and order dated 20-5-2005, passed by Chief Judicial Magistrate, Court Room No. 16, Sultanpur, in Criminal Case No. 2177 of 1992, State v. Mufees and Ors. , convicting the revisionists under various sections.
(2.) THEY have been sentenced to three years rigorous imprisonment and a fine of Rs. 1,000/-under Section 452 I. P. C. , to the term of one year rigorous imprisonment for the offence under Section 323/34 I. P. C. , six months rigorous imprisonment under Section 427 I. P. C. and one year imprisonment under Section 342 I. P. C. According to the prosecution story on 16-7-1992 the accused persons on a very petty matter entered into an altercation with the nephew of the first informant whereafter at about 6 p. m. they attacked the first informant and his family members with Lathi and Danda. The victims ran into their house and there too they were beaten. After the assault was over the culprits left the house of the victims by bolting the door from outside. Five persons in this incident received injuries, which have been discussed in the judgment of the trial Court on pages No. 8,9 and 10. All the injured received simple injuries and it is not necessary to reproduce them here in this judgment. Argument of the learned Counsel for the revisionists is that the two Courts below have committed illegality in convicting the revisionists under Section 452 I. P. C. and they also committed illegality in not granting advantage to the revisionists of being first offenders. Learned Counsel for the revisionists stated that for refusing the benefit of the first offenders to the revisionists the two Courts below have not given any reason also. His submission is that the incident took place about fourteen years ago and on petty quarrel this marpeet was done. There was no premeditated action. His submission is that in view of these facts and circumstances the revisionists are entitled to get benefit of being first offenders.
(3.) AFTER considering these submissions of the learned Counsel for the revisionists this Court is of the view that in the circumstances mentioned above, the two Courts below ought to have taken into consideration the facts mentioned by the learned Counsel for the revisionists and the revisionists should have been given benefit of Section 360 Cr. P. C. In Om Prakash v. State of Haryana, 2003 S. C. C. (Cri ). 799, it was held that if the Court decides not to exercise its jurisdiction under Section 360 Cr. P. C. then it must record its reasons. In view of the per- emptory nature of the language of the provisions of Section 361 Cr. P. C. , the Magistrate as well as Court of appeal or revision not having indicated as to why provisions of Section 360 Cr. P. C. have not been applied, there has been gross miscarriage of justice and violation of legislative mandate.;