SUDHIR AGARWAL,J. - (1.) Heard Sri Shiv Pujan Bharti, learned counsel for revisionists and perused the material available on record.
(2.) After making enquiry, Chief Judicial Magistrate, Basti has submitted report dated 07.01.2016 showing that Revisionist-1, Bhaggoo has died about six years back, hence, this revision has abated so far as revisionist-1 is concerned.
(3.) So far as revisionists-2 and 3 are concerned, I find that judgment was passed in Criminal Revision No. 899 of 1991 on 16.09.2017 deciding two revisions but it appears that said order has not been transcribed in the present revision. The judgment passed in Criminal Revision No. 899 of 1991 on 16.09.2017, reads as under:- "The aforesaid two revisions arose out of the Criminal Case No. 3575 of 1987 (State Vs. Bhaggoo and others), under sections 323 and 324 IPC, P.S. Khalelabad, District- Basti. All the revisionists of these two criminal revisions were convicted by the trial Magistrate and sentenced under section 323 / 34 IPC to undergo imprisonment with two months rigorous imprisonment, under section 324 IPC revisionist Mohan Lal was further convicted and directed to undergo rigorous imprisonment for four months. By two separate revisions the four convicted accused questioned the correctness of the conviction and the sentence order dated 23rd March, 1990 by filing Criminal Appeal No. 19/1990 (Bhaggoo and 3 others Vs. State). This appeal was disposed of by the Sessions Judge, Basti vide judgment and order dated 12th June, 1991. The learned Sessions Judge upheld the conviction and sentences awarded to the accused appellants and dismissed the appeal. One revisionist Mohan Lal filed a separate revision and three accused Bhaggoo, Rajman and Mohan Lal filed separate revision questioning the correctness of judgment and order dated 12th June, 1991 passed by the Sessions Judge, Basti in Criminal Appeal No. 19 of 1990. Since both the revisions arising out of same controversy, these have been heard together and are disposed of by a common order. During pendency of the revisions revisionist Bhaggoo in Criminal Rivision No. 824 of 1991 has died vide office report dated 10th March, 2016. On his behalf no legal representative has appeared, hence his revision stands abated. Heard Sri C.P. Upadhayaya, Advocate, learned counsel appearing for the revisionists, Sri Sanjay Tripathi, learned A.G.A. for the State respondent and perused the record. Learned counsel for the revisionists, very briefly submits that in the impugned judgments both the Court's below have erred in law. The offences for which each revisionists were convicted and sentences are punishable with one year's rigorous imprisonment and three years' imprisonment of either description but inspite of the arguments raised during the appeal, both the courts below had failed to record any special reason for not giving benefit to the revisionists prescribed in section 360 sub section 1 of Cr.P.C. On behalf of the State learned A.G.A. submits that Mohan Lal was armed with (Ballam) he inflicted injury on injured Dal Singar who sustained overall 8 injuries therefore, nature of offences is such that the revisionists could not have been dealt with under sub section 1 of section 360 Cr.P.C. Since the arguments are confined only on the point of failure to exercise jurisdiction conferred by section 360 (1) Cr.P.C . by the Court's below hence, there is no need to burden the record by detailed examination of facts and evidence of the matter. Suffice is to say there appear no factual error in the findings recorded by the court below. In order to consider the arguments advanced before me it would be gainful to the reproduce section 360 (1) Cr.P.C . It is quoted as below:- "360. Order to release on probation of good conduct or after admonition. When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2)." How this power conferred shall be exercised, it is reflected from the provisions contained in section 361 Cr.P.C. which is quoted herein below. "361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,- (a)an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or (b)a youthful offender under the Children Act , 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so." As is clear from the language used hereinabove it was mandatory for the court to record special reasons for not giving benefit to the revisionists of release on probation. As it reflects from the provisions contained in section 360 (1) quantum of punishment is the only guiding principle to consider release on probation. It does not speak about other considerations such manner in which offence was committed or what the allegations were. Simply only quantum of punishment which in the present case is 7 years' imprisonment is parameter for its exercised. Thus, case of the revisionists squarely falls within the ambit of 360 (1) Cr.P.C . It was incumbent on the court's below to record special reasons for denying the revisionists benefit of sub section 1 of section 360 . It is clearly a case of failure of the court's below to exercise jurisdiction vested in them. Therefore, sentences are illegal. The question is, whether the matter should be remanded back to get the error rectified or this Court should itself rectify the error. Learned counsel for the revisionists submits that the matter is very old, incident related to the year 1987, therefore, in order to secure the ends of justice this Court should exercise its power conferred by section 397 Cr.P.C. and rectify the error itself. Though section 397 of the Cr.P.C. indicates the object for which power of revision could be exercised; to satisfy about the correctness of legality or propriety of any finding, sentence and order and thereafter it is silent. The provisions cannot only be confined to examine the erroneous finding etc. such examination has to be taken to it is logical ends. Therefore, it is necessary to infer that the revisional court possesses power to rectify the error finding place in the impugned order etc. hence, while correctness of the conviction, being unchallenged, is upheld the punishment order deserves to be set aside and modified. Revision is partly allowed, conviction orders dated 22nd March, 1990 and confirming order dated 12th June, 1991 are hereby affirmed but sentences awarded to the revisionists by the learned C.J.M. and order affirming that sentence passed by the appellate Court are hereby set aside. Considering the quantum of punishment statutorily provided, advance age of the revisionists and absence of any motive to indicate that it was a crime for money, I think the revisionists are entitled to be released on probation for one year hence, instead of sentencing them, they shall appear before the court below either its C.J.M. Basti or C.J.M. Sant Kabir Nagar (wherever, original records of the case is available) alongwith the certified copy of this order, on their appearance within the stipulated time to Court below would release the revisionists on probation for a period of one year on their furnishing personal bond and two sureties to the satisfaction of C.J.M. concerned that they would be of good conduct, keep peace and in case of any breach, during the period of one year, the offending revisionist shall appear before the court below to be sentenced for the offence for which he was convicted originally. Office is directed to send necessary information alongwith certified copy of this order to the Court below for information and compliance." ;