ATTAUR RAHMAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is a petition under Section 439, Criminal Procedure Code, directed against a judgement and order passed by the learned Sessions Judge, Cachar, affirming a conviction under Section 457, Indian Penal Code and a sentence of two months' rigorous imprisonment and a fine of Rs. 50/ - in default of rigorous imprisonment for 15 days, passed by the learned S.D.M. (J.), Hailakandi.

(2.) MR . Laskar, the learned counsel for the petitioner, submits that the conviction of the accused petitioner is legally untenable. He has taken me through the part of the evidence; I, however, find that the evidence given by Kamalai, P.W. 2, can be the foundation for a legal conviction. In an application under Section 439, Criminal Procedure Code, the revisional Court is not required, nor is it within its competence, to reappreciate the evidence on record. It can only, interfere, if there be a flagrant miscarriage of justice, in the sense that the conviction is against some law or that there is no evidence at all to support the same. In the instant case, I do not find any justification for interference with the conviction.

(3.) MR . Laskar however has made another submission, which has a good deal of force in it. He states and it is indeed supported by an affidavit sworn by the uncle of the accused petitioner, that the latter is about fifteen years of age. Mr. Laskar submits that having regard to the tender age of the accused petitioner and also the attendant circumstances, the learned Magistrate should not have sentenced the accused to rigorous imprisonment, but should have acted in accordance with Section 6 of the Probation of Offenders Act, 1958. I agree that there is considerable merit in this submission. However, the records do not clearly show the age of the accused petitioner. In fact, the examination under Section 342, Criminal Procedure Code, in course of which the age of the accused person should have been stated, does not indicate the age at all. The learned Public Prosecutor, when asked regarding the age of the accused petitioner, states that in the absence of any records, he is not in a position either to admit or deny that the accused is fifteen years of age, as contended by the petitioner. It also appears that the submission, which is being made now, that is to say, that the accused should have been dealt with under the Probation of Offenders Act, 1958 was not made either before the learned Magistrate or before the learned Sessions Judge, when the matter came to him on appeal. The attention of the Courts below does not appear to have been invited to the mandatory provisions of Section 6 of the aforesaid Act. Sub -Section (1) of Section 6 of the Probation of Offenders Act reads as under :