COURT ON ITS OWN MOTION Vs. AMAR NATH

JUDGEMENT

(1.) The Chief Judicial Magistrate, Hamirpur, vide her judgment dated August 28, 1982 convicted the respondent Shri Amar Nath under Section 326/324 Indian Penal Code. Subsequently vide her order of even date the learned Magistrate in stead of imposing any substantive sentence on the respondent for this conviction directed that the respondent be allowed the benefit of Section 360 Criminal Procedure Code and released on probation of good conduct for a period of one year on his executing a personal bond in the sum of Rs. 7,000/-with two sureties in the like amount each. She also directed the respondent to pay compensation of Rs. 1,000/-to the complainant to whom the respondent was found to have caused injuries.

(2.) During his inspection visit to Hamirpur. the then Honble Chief Justice happened to inspect the records of this case. Finding that the respondent had not been dealt with adequately for his conviction under Section 326/324 Indian Penal Code his Lordship took suo moto notice and issued notice to the respondent of enhancement of sentence to him. This is how this matter has come up before this court.

(3.) The order of the Chief Judicial Magistrate allowing respondent the benefit of Section 360 Criminal Procedure Code is prima facie bad in law. Section 360:1) which is the relevant provision reads thus: 360. Order to release on probation of good conduct or after admonition.T1(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.' It is thus apparent from a plain reading of the language of this provision that the case of a person not under twenty-one years of age, he can be considered for allowing the benefit of this provision only if the offence of which he is convicted is punishable with fine only or with imprisonment for a term of seven years or less and no previous conviction is proved against him. In the case of a person under twenty-one years of age, he can be considered for allowing the benefit of this provision only if the offence of which be is convicted is not punishable with death or imprisonment for life and no previous conviction is proved against him. The case of a female, however, falls in the category of a person under 21. years of age. In the instant case the respondent was convicted of an offence punishable with imprisonment of life or with imprisonment for a term which may extend to ten years and his age was also above 21 years. He was, therefore, certainly not entitled to be considered for release on probation under Section 360 Criminal Procedure Code muchless for being released under this provision. Looking from this angle the order of sentence is patently Illegal.