MRITYUNJOY SADHUKHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this application the petitioner has prayed for his release on probation under Secti )n 4 of the Probation of Offenders Act, 1958.

(2.) The petitioner was convicted under Section 7(1) (a) (ii) of Act X/55 for violation of the provisions of para 3(1) of the West Bengal Pulses, Edible Oilseeds and Edible Oils (Dealer's Licensing) Order, 1978 and para 3 (2) of the West Bengal Dec aration of Stocks and Prices of Essential Commodities Order, 1977 and sentent ed to suffer R. I. for one year and to pay fine of Rs. 1,000/- i.d. to R. I. for three months, by the learned Judge, Special Court (E. C. Act), Nadia on 17.05.88. In appeal being C. R. A. No. 229 of 1988 this Court upheld the order of convictioin on 22.03.2006, but on the submission of the learned Counsel for the appellant that it is his first offence and considering the age, reduced the sentence of substantive imprisonment to the minimum of R. I. for three months, sentence of fine being unaltered.

(3.) Mr. Sanyal, learned Counsel for the petitioner, on referring the provisions of Sections 235 (2), 248 (2) and 255 (2) as also Sections 360 and 361 Cr. P. C. contended that dealing with an offender under Section 360 Cr. P. C. has been specifically provided in all the aforesaid three sections, the object being to avoid sending the first offender to prison for an offence which is not of a serious character. For not dealing with an accused under Section 360, special reasons are to be assigned under Section 361, and when this Court, Mr. Sanyal argued, like the trial Court failed to comply with the said provisions as it could do under sub-sections (4) and (5) of Section 360, it can now deal with it and such order of this Court will not amountunt to alteration or review of the judgment. Mr. Roy, learned Counsel for the State, on the other hand, relying upon the case of Hah Singh Mann v. Harbhajan Singh Bajwa, reported in 2001 SCC (Cr.) 113 submitted that had the matter been urged on behalf of the appellant at the proper stage, this Court could either deal with it under sub-section (4) or sub-section (5) of Section 360 or remit the case to the Court below for considering the said provision but after disposal of the appeal, it is functus officio and cannot pass any order as it will amount to alteration or review of the judgment which is barred under Section 362 Cr P. C.