In an appeal filed before the Supreme Court against a judgment and order by the Allahabad High Court dated 08-10-2025, whereby two appeals were partly allowed by affirming the judgment and order of conviction of the accused persons by the trial court and the benefit of Section 4 of the Probation of Offenders Act, 1958 (PoO Act), was also granted, a Bench comprising Justice J.B. Pardiwala and Justice K. Vinod Chandran set aside the impugned order and directed the accused persons to surrender within two weeks.
The petitioner contended that the High Court committed an error while giving benefit of Section 4 to the accused persons and it was submitted that the impugned order was in breach of sub-section (2) of Section 4, which would mandate the court to call for the report of the probation officer before giving benefit of probation.
The first accused had a shop and the informant also opened a similar shop nearby, which angered the accused. On the day of the incident, the victim, the brother of the informant, reached in front of accused 1’s shop while the informant and his wife were proceeding to their shop. Accused 1 and accused 2 suddenly attacked the brother mercilessly. Accused 1 held a cutting weapon whereas accused 2 had a gun, and both were used on the victim, who fainted due to the injuries. The victim was taken to the Bahraich Hospital immediately, and the informant reached the police station for a complaint to be filed. The Court noted that a charge was framed under Section 308 of IPC even though the same ought not to have been charged as the offence would clearly fall under Section 307.
The High Court noticed the grievous injuries and observed that the evidence of an injured witness should be given due weightage. The Court noted that to buttress the position that the presence of the victim could not be doubted unless there were major contradictions and discrepancies, the High Court took note of a host of decisions. Further, the Court noted that the High Court recorded that the appellants mentioned that the conviction was not challenged and that he only sought application of the PoO Act.
The Court opined that the Judge went overboard on an exposition of the law regarding the PoO Act and its application, as well as Sections 360 and 361 of the Code of Criminal Procedure, 1973. It was stated that the impugned order abruptly found the application of Section 4 on the finding that the incident occurred in 2003, that the appellants had suffered in the matter for 22 years, and that they had no criminal antecedents. While the conviction was affirmed, the sentence was modified applying Section 4 of the PoO Act directing personal bond of Rs. 20,000/- each along with an undertaking to maintain peace and good behaviour for a year.
The State pointed out that the High Court had not taken the probation officer’s report and also filed a counter-affidavit bringing out the criminal antecedents while mentioning that the accused persons were recommended to be detained as a preventive measure. The Court was informed that the accused had not undergone any sentence and that they were not in custody even for a single day. In a previous hearing, the Court had called for the probation officer’s report wherein all the criminal antecedents of both accused persons were mentioned. Further, the Court found the current status of the probation officer to be disturbing as was mentioned by the probation officer.
The Court stated that the incident had not only left scars on the victim but had left him ‘visibly weak, slow, sluggish, and drowsy’. The Court noted that the victim’s family had six daughters and that the victim’s treatment was continuing in Lucknow, which is why his brother was present before the Court seeking justice. It was said that the Trial Court and the High Court had considered the issue in a casual manner from the stage of taking cognizance till the release of the accused on application of the PoO Act.
It was stated that the accused had gone scot-free without suffering a single day of imprisonment due to misplaced sympathy based on grandiose expositions of law, which was totally unacceptable to the facts of the case. The Court said that Section 4 of the PoO Act did not permit its invocation when found that the accused is a first offender. It was unable to comprehend as to why the High Court observed that the accused were suffering for 22 years since the accused were on bail and merrily indulging in criminal activities.
The Court stated that the circumstances of the case including the nature of the offence and the character of the offender should be the reigning factor in deciding as to whether it is expedient to release the accused on the premise of good conduct; which in the facts of this case is lacking. It was said that the brutality of the crime and the grievous nature of the injuries ought to have persuaded the High Court to draw an adverse inference on the nature of the offence. The Court noted that the High Court, despite the overwhelming adverse report on the ‘character of offenders’ and giving short shrift to the ‘nature of the offence’, released the accused on good conduct.
Hence, the Court set aside the impugned order and directed the 2nd and 3rd respondents to surrender within two weeks, failing which the Additional Sessions Court, Bahraich, was to take immediate proceedings to apprehend them. The criminal appeals were directed to be restored, and the High Court was requested to take up the appeal only after ensuring that the accused were taken into custody.
