NETAI ADHIKARY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE defacto complainant has taken out this application under Article 227 of the Constitution being aggrieved by an order passed by the learned Sessions Judge, Alipore at a trial under section 307 read with section 34 of the Indian Penal Code. THE learned trial court passed the order relying upon the report submitted by the Probation Officer that both the offenders convicted in that case be released on probation under section 4(1) of the Probation of Offenders Act, 1956, Being aggrieved by such order, the present application has been taken out. THE learned lawyer appearing on behalf of the petitioner submitted that, inasmuch as, in a charge under sections 307/34 I.P.C. the maximum punishment that can be awarded is imprisonment for life, under the circumstances t he learned trial court has committed an error by passing an order u/s section 4(1) of the Probation of Offenders Act, 1958. Section 4(1) provides that 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, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond 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. Under these circumstances, when the accused were found charged with an offence, which is punishable with the maximum punishment of imprisonment for life, it was not open to the trial court to pass such an order. THE learned lawyer appearing on behalf of the State submitted that this application is not maintainable, inasmuch as, the provision for appeal has been made in sub-Section (2) of section II. Under those circumstances the petitioner's application is not maintainable. He further submitted that the petitioner has indirectly invoked the jurisdiction of this court under Article 227 of the Constitution only to circumvent the period of limitation that has intervened in the, matter. THE order was passed on 22nd July 1986 and the de facto complainant applied for certified copy of the order on 5/11/1986 and thereafter the present application has been filed on 17/11/1986. Under those circumstances, he prayed that no order be passed in this application. From the order it indicated that the trial court had no jurisdiction to pass such order. In a case reported in State of Mysore v. Sahib Gunda it was held that the provisions of section 4 are not applicable to a case where a person is found guilty under section 326, I.P.C., inasmuch as, the maximum sentence prescribed for the offence is imprisonment for life. In that view of the matter the learned trial Court had no jurisdiction to pass such order under section 4.

(2.) IN the facts and circumstances of the case, this Court sets aside the order dated 22/7/1986 and remits the case before the trial Court for passing necessary orders in accordance with law. The application is accordingly disposed of Let this order be communicated immediately.