STATE Vs. SHEO SHANKER

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Ghazipur recommending that an order passed by a Judicial Officer be set aside and that the opposite party be awarded such sentence as this Court may consider proper.

(2.) There is no controversy about the facts which are that the opposite party Sheo Shankar Lal misappropriated an amount of Rs. 15/5/11 in his capacity as Sajawal. He pleaded guilty to the charge under Section 409, I. P. C., and also refunded the misappropriated amount. He has been convicted by the Judicial Officer under Section 409, I. P. C., but on account of his being a young man of 18 years of age he has been released on probation under Section 4, U. P. First Offenders' Probation Act. The learned Sessions Judge, on being moved by the District Magistrate, has referred the case to this Court with the recommendation that the order passed by the learned Magistrate under Section 4, U. P. First Offenders' Probation Act be set aside and that the opposite party be sentenced under Section 409, I. P. C.

(3.) Section 4 (1), U. P. First Offenders' Probation Act lays down that "when a person is convicted of an offence not punishable with death or transportation for life", he may be released on probation of good conduct in certain circumstances. The learned Magistrate interpreted the words "punishable with death or transportation for life" to mean "punishable with death or in the alternative with transportation for life". According to this interpretation a person convicted of an offence cannot be released on probation only if death and transportation for life are the two alternative punishments provided for it. In Other words he can be released on probation if the offence is punishable with,-