FATEH SINGH ALIAS BANDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been preferred against the conviction of the petitioner by the Additional Judicial Magistrate No. 2, Alwar on 12 -11 -1984 and confirmed by the Additional Sessions Judge No. 1, Alwar, on 24 -4 -1986. He has been sentenced to undergo an imprisonment of six months and to pay a fine of Rs. 200/ -, for the offence under Section 54(a)(c)(d) of the Rajasthan Excise Act.

(2.) THE petitioner has not challenged the conviction awarded by both the courts but has contended that this is a fit case in which instead of sentencing the petitioner to a term of imprisonment, he should be released on probation. According to him, it is his first offence and his age is 38 years and if he is released on bail, he would be in a position to reform himself and not commit similar offence. The learned Magistrate while discussing the question of sentence has observed that the petitioner has committed this offence for the first time and has not been convicted previously. His age is also mentioned as 38 years. However, the benefit of releasing him on probation was not allowed because he was more than 21 years of age. The learned Counsel for the petitioner has contended that it is not necessary that only accused, who are below 21 years of age can be released on bail but under Section 4 of the Probation of Offenders Act or under Section 360 Cr. PC a person, above the age of 21 years can also be released on probation provided he is convicted for the first time and it is considered proper to do so. In support of his contention he has placed reliance on 1981 Cr.LR (Raj) 558 and 1982 Cr.LR (SC) 16. Thus, it can be said that the learned courts below have failed to exercise their jurisdiction in considering whether the petitioner could be released on probation or not. As such this position is being considered now.

(3.) LOOKING to the facts of the case, namely, that the petitioner has not been convicted before and is prepared to revert to his agricultural land, it would be proper to release him on probation. At the same time I may mention that his age being 38 years, which is neither young nor old, cannot be a factor for considering his release on bail. Accordingly, this revision is accepted to the extent of sentence only and it is directed that the petitioner be released on probation provided he executes a personal bond in the sum of Rs. 15, 000 with two sureties for Rs. 7,500/ - each for maintaining peace and be of good behaviour to the satisfaction of Addl. Sessions Judge No. 1, Alwar, failing which he shall appear before the court to receive sentence when called upon to do so.