H. Hombe Gowda Officiating C.J.
1. The legality and correctness of the order passed in C. C, No. 113/2/1962 by the First Class Magistrate, passed on 8-3-1963 applying the provisions of Section 4 of the Probation of Offenders Act, 1958 and releasing the respondents who were found guilty of an offence Under Section 326 IPC on probation of good conduct for keeping peace after executing a bond is challenged in this revision petition.
2. A charge sheet was placed by the police of Janwada against the respondents before the First Class Magistrate, Bidar for an offence punishable Under Section 326 IPC On perusing the documents filed Under Section 173 Cr, P. C. the learned Magistrate framed a charge against the respondents for an offence punishable Under Section 326 IPC on 6-10-62. When the said charge was read over and explained to the respondents and they were called upon to plead, they pleaded 'not guilty'. The prosecution then proceeded to lead evidence to establish the charge against the respondents. On 23-11-62 the complainant was examined in part and the case was posted for further evidence. When the case came up for trial on 8-3-63 it appears that the respondents filed two applications to the effect that they never intended to cause any injury to the complainant; that the injury was caused accidentally as stated by the complainant in the course of his evidence and that they felt extremely sorry that the complainant was injured and that they had no intention of causing any injury to the complainant and that they should, therefore, be pardoned. The learned Magistrate, who received these applications held that the above statements amounted to an unequivocal admission of guilt on the part of the respondents and found each of them guilty of the offence puni hable Under Section 326 of the Indian Penal Code and convicted them and proceeded to pass appropriate sentences and observed as follows:
Taking into consideration the circumstances of the case in which the offence is alleged to have taken place, I think the accused can be given benefit of the Section 4 of the First Offenders Act. There is no record to show that the accused are ex-cqnvicts. In view of this and their admen I convict the accused for the offence punishable Under Section 326 IPC But instead of sentencing them to any punishment I release them on entering into their Personal Bonds of Rs. 100/- each to appear and receive sentence whenever called upon within a period of 3 months and I further direct them in the meantime to be of good behaviour to keep the peace.
3. It is urged by Mr. Ashrit, the learned Government Pleader, that the order passed by the learned Magistrate Releasing the Respondents after finding them guilty of an offence punishable Under Section 326 of the Indian Penal Code, is icefall and is liable to be set aside. He contends that the provisions of Section 4 of the Probation of Offenders Act 1958 are not applicable to the case inasmuch as the maximum sentence prescribed for affined Under Section 326 IPC it imprisonment for life. The contention of Mr. Ashrit is well founded. Section 4 of the Probation of Offenders Act 1958 which was brought into and in this State or and from 1-10-1960 read as follows:
Section 4. Power of court to release offenders on probation of good conduct.
(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 eminent that. trig 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 any-thing 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 to keep the peace and be of good behaviour;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.(2) Before making any order under Sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation: to the case.
(Other Sub-sections are not material for our purpose).
4. It is clear that the provisions of Section 4 of the Act arc not applicable to a case where a person is accused of having committed an offence punishable Under Section 326 of the Indian Penal Code for which the maximum sentence prescribed is imprisonment for life. The learned Magistrate has failed to notice this fact when he applied the provisions of this Act and directed the respondents to be released on probation of good conduct.
5. The order of the learned Magistrate does not indicate whether he had applied his mind to the facts of; the case and found that there was an unequivocal admission of guilt by all or any of the respondents. The order also does not disclose the basis or which he came to the conclusion that the provisions of Section 4 of the Act should be applied and the respondents be released on probation. Moreover, in the absence of a report from the Probation Officer the Magistrate had no authority to release the respondents on probation. There is nothing on record to show that a report of the probation Officer concerning the activities of the respondents had been filed. As the provisions of Section 4 are not at all applicable to the facts of the case it is not necessary to go into other matter in the case The conviction of the respondents based on their alleged admissions made in the petitions during the trial and the order of the learned Magistrate releasing them on probation Under Section 14 of the Probation of Offenders Act 1958 are both illegal and should both be set aside and the case: remanded to the learned Magistrate to proceed with the trial of the case in accordance with law.
6. fn the result for the reasons stated above the order passed by the learned Magistrate convicting the respondents for an offence punishable Under Section 326 of the Indian Penal Code on their alleged admissions in some petitions filed during the middle of the trial without recording the evidence in the case and directing them to be released j on probation after obtaining bonds from each of hem for a sum of Rs. 100/- to appear before him to receive the sentence when called upon are set aside. The records of the case are ordered to be seat back to the learned Magistrate to proceed with the trial of the case in accordance with law.