IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.187 of 2011 Tijendra Kumar Singh @ Tijendra Singh @ Tiju Singh @ Tijendr Versus The State Of Bihar & Ors ----------- 4/ 7.7.2011 Heard. The appellant is the informant of Masaurhi (Punpun) P.S. Case no. 3 of 2000 from which S.T. No. 502 of 2001 arose and the same was taken up for hearing after its commitment. Appellant‘s grievance is on many points but, the central grievance is that while directing the release of the respondents under the provision of Probation of Offenders Act, 1958 (hereinafter referred to as the ‗Act‘), the court was bound to have a report from the Probation Officer in the light of the provision of section 4 of the Act and he was obliged to consider that report if it had been submitted and then only he could have jurisdiction of passing an order of the import as was passed on 1.10.2010. Section 4 of the Act reads thus: ― 4. Power of Court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then notwithstanding anything contained in any other law for the time being in force, the court may, in stead of sentencing him at once to any punishment direct 2 that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) …………..‖ It is mandatory for the court to consider the report. If the legislature has made the consideration of the report of the Probation Officer, then it flows from the very provision that the court is obliged to ask a report from the Probation Officer. In the present case, the learned judge before proposing to release the respondents in the light of the provision of the Act did not only forgot to seek a report from the Probation Officer but also could not refer to that very provision as to why he should not do it. There is a division bench decision of this Court in Upendra Nath Choudhary Vs. High Court of Judicature at Patna & Anr. reported in 2007(2) PLJR which has laid down that seeking a report from the Probation Officer and considering the same before passing an order in order to giving benefit of the provision of the Act is a mandate of law and that could not be overlooked by any 3 court. I have held in the light of the above division bench decision in Cr. Appeal (SJ) No. 105 of 2011 that the mandate of law has to be complied with but if it is found that the Probation Officer is dilly dallying with the submission of report or undue time is being consumed, then the court may not wait further for the report and after giving sufficient opportunity for furnishing the report, may go on to pass an order which could be justified in the facts and circumstances of the case if he is satisfied from the materials available on record that the benefit is to be extended to the accused even in absence of the report. Coming to the present judgment, the learned Additional Sessions Judge – X, Patna while passing the order on 1.10.2010 by which he was extending the benefit of the Act appears not only not seeking a report from the Probation Officer but not even referring to that mandate of law and went on to passing the impugned order. This is the fallacy which is reflected from the impugned order and that part of the judgment by which the respondents were given the benefit under the Act is hereby set aside even without hearing the respondents because the mandatory provision of law has not been complied with and the order on the very face of non compliance of the provision of section 4 of the Act appears passed without jurisdiction. The matter is remitted back to the court below for passing a fresh order which shall be passed after obtaining a report from the 4 Probation Officer. The court below should give sufficient time to the Probation Officer for furnishing a report and in case he finds that the Probation Officer is not prompt enough in submitting the report, he could be proceeding further. As soon as the trial court receives the present order, he shall issue notice to the respondents and simultaneously he shall send for a report from the Probation Officer and thereafter proceed to dispose of the case in the light of the observations made above. Anil/ ( Dharnidhar Jha, J.)