Next it was contended that the learned Addl. Sessions Judge should have allowed costs and compensation to the petitioner as provided in Section 5 of the Act. Section 5 no doubt empowers the court to grant in appropriate cases compensation and costs but this also is in the discretion of the court. The court will allow compensation and costs only when it thinks fit in any case. It seems [hat no prayer was made before the appellate court for directing the opposite party to pay to the petitioner compensation and costs of the proceeding. It is purely a question of discretion. When no such prayer was made or when the court in its discretion did not allow costs and compensation, this court sitting in revision cannot interfere with the discretion of the court which does not appear to have been exercised capriciously and unreasonably. This grievance also has no foundation.1
2. Against that order the complainant has filed the present application in revision.
3. Learned counsel for the petitioner contended that it was not a fit case for release of the opposite party on probation of good conduct because it was not established beyond doubt that he was under twentyone years of age. In this connection he referred to the provision of Section 6 of the Probation of Offenders Act, 1958, which is in the following terms:
"6(1) When any person under twentyone years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender."
4. In order to appreciate the full implication of Section 6, it will be necessary to consider the scope and effect of the provision of Section 4 also of the said Act. Section 4 provides as follows:
"4(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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
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Patna High Court
Rajeshwari Prasad vs Ram Babu Gupta on 19 July, 1960
Equivalent citations: AIR 1961 Pat 19, 1961 CriLJ 144
1. Ram Babu Gupta, opposite party, was convicted by the magistrate under Section 406 of the I. P. C., and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, or, in default, to undergo rigorous imprisonment for a further period of three months. On the relevant date the opposite party was the Joint Secretary of the Patna City Hosiery Industrial Co-operative Society. The allegation against him was that while employed in the Society as Joint Secretary, he defalcated a sum of Rs. 3,300/-. On appeal the learned Addl. Sessions Judge acting under Section 4 of the Probation of Offenders Act, 1958, directed that the opposite party be released on probation subject to his executing a bond for being of good behabiour and to keep the peace for a period of three years and to revive the sentence when called upon during the said period. He further directed that during this period he would be under the supervision of Shree Rajendra Prasad, Probation Officer, Patna, and would execute a bond of Rs. 1000/- with two sureties of like amount and further that he would not be permitted to leave Patna and would work in the cooperative regularly as recommended, if permitted by the Society to do so. He further ordered that on the bond being executed, he would not have to undergo the sentence of imprisonment and also to pay the fine imposed upon him.2. Against that order the complainant has filed the present application in revision.
3. Learned counsel for the petitioner contended that it was not a fit case for release of the opposite party on probation of good conduct because it was not established beyond doubt that he was under twentyone years of age. In this connection he referred to the provision of Section 6 of the Probation of Offenders Act, 1958, which is in the following terms:
"6(1) When any person under twentyone years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender."
4. In order to appreciate the full implication of Section 6, it will be necessary to consider the scope and effect of the provision of Section 4 also of the said Act. Section 4 provides as follows:
"4(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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
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