P.D. Desai, C.J.
1. The learned Sessions Judge having found the respondent guilty of an offence punishable. under Section 304 Part-11 of the Penal Code, instead of passing an order of sentence, directed that he be released on his executing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount for maintaining peace and good behaviour for a period of three years and that he may appear and receive sentence if and when called upon during the said period. The order was passed in the purported exercise of powers conferred by Section 360 of the Criminal P.C. 1974 (hereinafter referred to as 'the Code'.
2. Section 360, Sub-section (1) and (10) read as follows:
(1) 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 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).
(2) to (9) XXX XXX XXX XXXXXX XXX XXX(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
Section 361 of the Code reads as under:
361. 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, or
(b) a youthful offender under the Children Act, 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.
3. Sections 4 and 6 of the Probation of Offenders. Act, 1958 (hereinafter referred to as 'the Act') empower the Court to release certain offenders on probation of good conduct and place restrictions on imprisonment of offenders under twenty-one years of age in certain cases. Before exercising powers under Section 4, the Court is, inter alia, required to have regard to the circumstances of the case including the nature of the offence and the character of the offender and to take into consideration the report, if any, of the Probation Officer concerned in relation to the case. If the Court is satisfied that it would not be desirable to deal with the offender under Section 4, it is, inter alia, under an obligation under Section 6 to call for a report from the Probation Officer and to consider such report, if any, and any other information available to it relating to the character and physical and mental condition of the offender and to record its reasons for passing any sentence of imprisonment on the offender. In Ram Singh v. State of Haryana, : (1971)3SCC914 , the provisions of Section 4 of the Act were sought to be invoked in an appeal by Special Leave preferred before the Supreme Court. The plea was rejected on the following ground:
Sections 4 and 6 of the Act indicate the procedure requiring the Court to call for a report from the Probation Officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act.
It is not in dispute that the Act applies to Himchal Pradesh.
4. In view of Sub-section (10) of Section 360 of the Code, which provides that nothing in the said Section shall affect the provisions of the Act, the provisions of Sections 4 and 6 would be attracted in the instant case. It is thus apparent that before releasing the respondent on probation of good conduct, the learned Sessions Judge was required to take into consideration the overall circumstantial of the case including the nature of the offence and the character and antecedents of the offender, as also the report, if any, of the Probation Officer. The impugned decision does not reveal that this legal position was present to the mind of the learned Sessions Judge. There is no reference in the relevant part of the judgment to the character, antecedents and family background of the respondent and no material on that aspect appears to be on record. If a Probation Officer is duly appointed for the District or Division, it was also essential for the learned Sessions Judge to have called for his report and to take such report into consideration. In view of the fact that this procedure, which is of primary importance before an order could be passed releasing an offender on probation, was not followed in the instant case, the impugned decision cannot be sustained and it is, therefore, quashed and set aside. The case is remanded to the learned Sessions Judge with a direction to deal with the question of release, if any, of the respondent on probation afresh in accordance with law and in light of the observations made in the course of this judgment and with a further direction that, meanwhile, the respondent be dealt with in accordance with law.
5. Rule is made absolute accordingly.