1 IN THE HIGH COURT OF JUDICTURE FOR RAJASTHAN AT JODHPUR. O R D E R Bherulal alias Bheriya. Versus State of Rajasathan. S.B. Criminal Revision Petition No.690/2007 ... Date of Order: August 16, 2007 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.J.R. Beniwal, for the petitioner. Mr. V.R. Mehta, Public Prosecutor for the State. BY THE COURT: This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the judgment and order dated 3-7-2007 passed by the Additional Sessions Judge (Fast Track), Rajsamand (for short, “the Appellate Court” hereinafter) in Criminal Appeal No. 66/2006, whereby the appeal filed by the petitioner against the judgment and order dated 18- 10-2006 passed by the Chief Judicial Magistrate, Rajsamand (for short, “the trial Court” hereinafter) in Criminal Case No.06/2006, was dismissed. I have heard learned counsel for the parties. Carefully gone through the judgments and orders passed by both 2 the Courts below, as also the record of the trial Court. At the out-set, learned counsel for the petitioner submits that the petitioner does not want to challenge his conviction for the offence under Section 379 IPC, however the learned counsel has confined his arguments only on the question of quantum of sentence and contended that both the courts below failed to record special reasons, as envisaged under Section 361 of the Code while denying the benefit of Section 360 of the Code or the Probation of Offenders Act, 1958 (for short, “the Act, 1958” hereinafter. Learned Public Prosecutor submits that the sentence of six months' imprisonment awarded by the trial Court and affirmed by the Appellate Court for the offence under Section 379 IPC cannot be said to be excessive. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. The trial Court, as also the Appellate Court, have not at all recorded any reason, much less the special reasons, for denial of the benefit of Section 360 of the Code or the Act 1958. Section 360 of the Code deals with the order to release on probation of good conduct or after admonition. Section 361 of the Code pertains to special reason to be recorded in certain cases and provides that where in any case, the Court could have dealt with (a) an accused person under Section 360 or under the 3 provisions of the Act 1958, or (b) a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders; but has not done so, it shall record in its judgment the special reason for not having done so. Thus, it is clear from the plain reading of Section 361 of the Code that it is mandatory duty cast on the Court to record in its judgment the special reason for not granting the benefit of Section 360 of the Code where it could have dealt with the accused under that Section. In Chandreshwar Sharma Vs. State of Bihar, (2000) 9 SCC 245, the Hon'ble Supreme Court held that a mandatory duty is cast on the Court to record in its judgment specific reasons for not granting benefit of Section 360 where it could have dealt with the accused under that Section. In the instant case, on careful perusal of the judgments and orders of both the Courts below, it no where appears that the petitioner was earlier charge-sheeted, convicted or sentenced; on the contrary, it is his first offence. From the statements of the witnesses, it has come in evidence that the petitioner himself was assaulted by causing numerous injuries, for which a criminal complaint was instituted against complainant Ganpat Ram and witnesses Manak Ram and Veni Ram and this fact has been admitted by all these witnesses in their statements. In my view, keeping in view the facts and 4 circumstances of the case and the fact that no adverse antecedents of the petitioner has been pointed out by the prosecution and there had been no previous conviction to his credit and this being the first offence of the petitioner, the ends of justice would be met if the petitioner is released on probation of good conduct. In the instant case, the petitioner has already suffered imprisonment for 1 ½ months out of the sentence of 6 months' imprisonment. In the result, the revision petition is partly allowed. While maintaining the conviction of the petitioner for the offence under Section 379 IPC, instead of sentencing him at once to any imprisonment, it is directed that he be released on probation under Section 4 (1) of the Act 1958, provided he furnishes a person bond in the sum of Rs.10,000/- with one surety of like amount to the satisfaction of the trial Court to maintain the peace and tranquility and be of good behaviour and shall not repeat the offence during the period of two years and shall receive the sentence when called upon to do so. The petitioner is in custody and he be released forthwith on depositing the amount of fine, if not required in any other case. Since the revision petition itself has been decided, the application for suspension of sentence stands disposed of. (H.R. PANWAR), J. 5 mcs