STATE Vs. JAGDISH

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge, Pali.

(2.) THE accused non-petitioner was convicted by the Munsiff-Magistrate, Pali for offences under Sections 338, 429, 279 and 337, I. P. C. and sentenced to rigorous imprisonment for four months, six months, two months and two months respectively. All the sentences were made to run concurrently. Having convicted and sentenced the accused as mentioned above the learned Magistrate further gave benefit to the accused under Section 4 (1) of the Probation of Offenders Act and instead of sending him to jail he directed that the accused be released on bail on his entering into a bond in a sum of Rs. 1000 and a surety in the like amount to appear and receive the sentence when called upon during one year and in the meantime to keep the peace and be of good behaviour. Aggrieved by the order of the learned Magistrate the State filed a revision in the Court of Sessions Judge, pali, praying that, that part of the order of the learned Magistrate whereby he gave the benefit to the accused under the Probation of Offenders Act be set aside and the accused be sent to jail for serving out the sentence. The learned Sessions judge has recommended that the order of the learned Magistrate be set aside and he may be directed to convict the accused or either sentence him at once to any punishment or in the alternative direct the release of the accused under Section 4 (1) of the Probation of Offenders Act. According to the learned Sessions Judge the magistrate was not competent to sentence the accused and simultaneously give him the benefit of the Probation of Offenders Act.

(3.) SINCE nobody has put in appearance in this Court the case has been put up in chambers for orders. In the first place I think the order passed by the Magistrate giving the accused benefit under Section 4 (1) of the Probation of Offenders Act is appealable under Section 11 (2) of the said Act. It provides that,