IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 259 of 2003 Date of Decision : October _28_ , 2011 State of H.P. Appellant Versus Kishan Chand Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General. For the respondent : Mr. G. R. Palsra, Advocate for the respondent alongwith respondent in person. Justice Deepak Gupta, J. (Oral) By means of this appeal State has laid challenge to the sentence imposed by the learned Addl. Sessions Judge, Mandi, H.P. upon the respondent/accused. The learned Addl. Sessions Judge dismissed the appeal of the accused and upheld the judgment of the trial Court holding the accused guilty of having committed offences punishable under Sections 409, 468 and 471 IPC. The learned trial Court had directed the accused to undergo various sentences of imprisonment but the lower appellate Court ordered the release of the appellant under Section 4 of the Probation of Offenders Act on his executing a Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 personal bond in the sum of `5000/- with one surety in the like amount for a period of two years and in the meantime to keep peace and be of good behaviour. The learned lower appellate Court did not sentence the accused to undergo imprisonment and directly granted him probation. 2. The State has laid challenge to this order. Firstly, it is contended that the learned lower appellate Court erred in extending the benefit of Section 4 of the Probation of Offenders Act. Secondly, it is contended that without calling for the report of the Probation Officer, no benefit under the Probation of Offenders Act could have been granted to the accused. On going through the aforesaid portion of the order, we find that the same is wholly illegal and shows total lack of application of mind by the learned lower appellate Court. 3. Under Section 409 IPC the sentence provided is imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 4. From the perusal of the above provision it is obvious that if an offence of criminal breach of trust is committed and falls within the ambit of Section 409 IPC then the sentence which can be imposed can extend up to life imprisonment. Section 4 of the Probation of Offenders Act clearly lays down that when 3 any person is found guilty of having committed an offence not punishable with death or imprisonment for life, his case should be considered for grant of probation. Since the accused was convicted of having committed an offence which is punishable with life imprisonment, the learned trial Court could not have invoked the provisions of Section 4 of the Probation of Offenders Act. 5. Though, keeping in view the gravity of the offence and the punishment provided, Section 4 of the Probation of Offenders Act is not attracted, even if for the sake of arguments we were to hold that such provision was applicable then also the manner in which the benefit of Section 4 has been granted is totally illegal. Before passing any order granting probation to a convict, the Court is duty bound to call for the report of the Probation Officer concerned and no Court can release a convict on probation without obtaining his report. In this behalf, reference may be made to Section 4(2) of the Probation of Offenders Act which reads as follows:- “(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.” 6. A bare reading of this Section clearly shows that no Court can pass any order under sub Section (1) of Section 4 without 4 considering the report of the Probation Officer. We are therefore, constrained to observe that the learned lower appellate Court totally misread and misapplied the provisions of Section 4 of the Probation of Offenders Act. 7. In view of the aforesaid discussion we are of the considered view that some sentence of imprisonment had to be imposed upon the accused and he could not have been given the benefit of the Probation of Offenders Act. In this case the amount which was embezzled was only ` 812/-. The occurrence took place in the year 1992. The accused has been facing criminal proceedings for almost two decades. He is now 56 years old and has a wife and two unemployed children to support. Fine has already been deposited by him. Keeping in view the aforesaid factors we feel that he should not be sent to jail at this stage and therefore impose sentence of till rising of the Court on the accused who is present in Court. The appeal is disposed of in the aforesaid terms. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. October _28_, 2011 (PK)