IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.105 of 2011 Shri Ram Yadav Versus The State Of Bihar & Ors. ----------- 8. 23.6.2011 This appeal has been filed under Section 372 of the Code of Criminal Procedure, 1973 by Srhi Ram Yadav, who was the informant of Amnaur P.S. Case No. 25 of 2008 which was tried as Sessions Trial No. 209 of 2009 arising out of G.R. case No. 1216 of 2008, by Shri Gangotri Ram Tripathi, XI Additional Sessions Judge, Saran at Chapra which ended in acquittal of the respondents 2 to 7 of the charges under section 308/149 of the Indian Penal Code and instead into their conviction under Section 324 of the Penal Code by the said learned court. After having heard on the point of sentence, the learned trial Judge directed the release of respondents 2 to 7 on execution of probation bonds of Rs. 1,000/- each with one surety of the like amount each for keeping peace for one year, else, to receive the substantive sentence. After having heard learned counsel for the parties, the Court finds that the acquittal of the respondents 2 to 7 for charge under Section 308/149 I.P.C. could not be faulted inasmuch as the oral evidence which was led during trial by the prosecution was completely in conflict with the medical evidence which has been discussed in paragraph 11 of the impugned judgment. It is true that there was a wound on the frontal part of the head measuring 1 ½” X1/8” but that was 2 found simple and the allegation was that the informant and his family members were assaulted with lathi, bhala and garansa. The Doctor found two incised wounds which were 3”X 1/6” and 2 ½” X 1/6” and those injuries appeared too superficial to be dangerous to life or endangering life. Besides the above, the evidence and allegations were generally made against all the respondents making it very difficult to specify as to who could have caused which of the injuries and in such a situation of uncertainty as regards the evidence, the Court fully upholds the finding recorded by the learned trial Judge as regards the proof of the charge under Section 308/149 of the Penal Code. In the above light, the appeal against acquittal on that account is not maintainable and the same is dismissed. After I had concluded the above order, Shri Vindhyachal Singh, learned counsel appearing on behalf of the appellant resisted the release of the respondents 2 to 7 on ground of Section 4 of the Probation of Offenders Act( for short ‘the Act’) by submitting that Section 4 of the said Act indicated that it was mandatory for the court to seek a report from the Probation Officer and then to pass an order under Section 4(1) of the Act. It has been held by a Division Bench of this Court in Upendra Nath Chaudhary Vs. High Court of Judicature at Patna & Anr. Reported in 2007(2) P.L.J.R. that if the order releasing an accused on probation is passed under Section 4 of the Act without seeking a report from the Probation Officer, the same is 3 against the mandate of sub-section(2) of the Act and, as such, could be failing short of the requirement of the law. After having gone through the decision cited by the appellant what appears is that it is no bar for a Judge or the court to release a convict under Section 4 of the Probation of Offenders Act without seeking a report from the Probation Officer under Section 4(2) of the Act but that shall be only when he has sought a report and the report has not been submitted. The ratio laid down by Upendra Nath Chaudhary(Supra) indicates, as may appear from paragraph 18 of the report at page 560 which is the extracted part of the judgment of the Supreme Court in MCD Vs. State of Delhi and Another reported in 2005 Supreme Court Cases(Cri) 1322 that the court could do it if in spite of seeking a report the same has not been received by it or submitted to it. Here, in the present case, the situation appears quite different. The learned Judge who was proceeding to direct the release of respondents 2 to 7 on execution of the bonds as per the provision of Section 4 of the Act by the impugned judgment, had not sought a report in the light of the provision of Section 4(2) of the Act which has been held to be mandatory and after recording his reasons one had to pass the order of release in the terms as contained in that paragraph of the judgment. The order passed by the learned trial Judge, as such, appears contrary to the requirement of law and that is hereby set aside and for that 4 reason, the case is remanded back to the Additional Sessions Judge for proceeding properly in accordance with law. It may be pointed out to the learned trial Judge that he is not required to hear any one while passing the order directing the Probation Officer to submit a report and there could be a specific direction to the Probation Officer to submit the report within a particular period of time and if no report is received then the learned trial Judge should proceed to pass a proper order in the light of the decision in Upendra Nath Chaudhary(Supra). In the result, this appeal is disposed of by allowing it partly in terms as indicated above. Kanth ( Dharnidhar Jha, J.)