MOTILAL BAIRWA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE only submission of the learned counsel for the petitioner is that at the time of the alleged offence, the accused was 18 years of age and section 295 IPC is only punishable with imprisonment of either description for a term which may extend to two years, or with fine or with both. He also submits that it is a case which could have been dealt with under sec. 4 of the Probation of Offenders Act as well as section 360 of the Code of Criminal Procedure. THEre was no previous conviction on record against the accused-petitioner and in a case where the accused is less than 21 years of age and is found guilty and convicted for an offence which is not punishable with imprisonment for life, it is the mandate of law that the case of the accused should be dealt with under the provisions contained in the Probation of Offenders Act as well as section 360 Cr. P. C. If the court is of the opinion that the benefit should not be so extended, it is incumbent upon the court to call for the report of the Probation Officer and consider his opinion and thereafter it may refuse to extend the benefit of the provisions of the Probation of Offenders Act for the reasons to be recorded.

(2.) THE accused petitioner has been found guilty for an offence under section 295 IPC. THE proved facts against him are that he damaged the deity of Shankerji by throwing a stone at it stating that the deity is only stone and he will see as to what happens to him in case he damages it. He damaged and defiled the place of worship with intention of thereby to insult the religion of a class of persons or with the knowledge that a class of persons is likely to consider such destruction, damage or defilement as an insult to their religion. Thus the accused has been rightly been convicted and the learned counsel for the petitioner has not challenged the conviction of the accused under section 295 IPC. As already stated earlier, the offence under section 295 IPC. is punishable with imprisonment of either description which may extend to two years or with fine or with both. THE offence is therefore such that could have been dealt with under sec. 4 of the Probation of Offenders Act or sec. 360 Cr. P. C. Under sec. 6 of the Probation of Offenders Act when any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under sec. 3 or sec. 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. Sub-section (2) of section 6 of the said Act provides that for the purpose of satisfying itself whether it would not be desirable to deal under section 3 or 4 with an offender referred to in sub-section (1) of section 6, the court shall call for a report from the Probation Officer and consider the report if any and any other information available to it relating to the character and physical and mental condition of the offender. It will, therefore, be clear that in case the accused is 21 years of age and is found guilty of having committed an offence punishable with imprisonment, but not for imprisonment for life, it is the mandate of the legislature contained in section 6 (2) of the Probation of Offenders Act that in case the court feels that the benefit of section 4 of the Probation of Offenders Act should not be extended to the accused, it must call for a report from the Probation Officer, consider the report for the purpose of satisfying itself whether it would be desirable to deal with the accused under section 3 or section 4 of that Act or not THE courts in the instant case do not appear to have considered this legal aspect of the matter. In a case under section 295 IPC where the accused-petitioner is less than 21 years of age without calling for the report of the Probation Officer and without considering the same, the accused-petitioner has been sentenced to imprisonment and thereby the courts below have committed illegality. In the facts and circumstances, looking to the age of the accused and nature of the offence, I am of opinion that it is not a case in which the benefit of section 4 of the Probation of Offenders Act should have been denied.