IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.848 of 2007 SHARDINDU VERMA, SON OF LATE HARI MOHAN GHOSH, RESIDENT OF BIHPUR, P.S.- BIHPUR, DIST.-BHAGALPUR. Versus 1. THE STATE OF BIHAR 2. BISHWAJEET KR. VERMA, S/O- BIMALENDU VERMA, RESIDENT OF BIHPUR, P.S.- BIHPUR, DIST. BHAGALPUR. For the petitioner : Mr. Dineshwar Mishra, Advocate. For the O.P. no. 2 : Mr. Manoj Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 5 28.07.2010 Heard both sides. Petitioner is aggrieved by that part of the order whereby O.P. no. 2 herein was released under Section 3 of the Probation of Offenders Act after due admonition. It is contended that going by the narration in the F.I.R. which has been accepted in part(s) by the learned trial court, it would appear that the O.P. no. 2 herein does not carry clean antecedent. His character is in serious doubts. This is what petitioner has stated in paragraph 9 of the grounds: “For that it is well settled law of the land that before giving benefit u/s 3 of the Act, the learned court is duty bound to consider the nature of the offence and character of the offender and the Opp. party no. 2 is a notorious criminal and various case were lodged against him, as such his case was not fit for consideration u/s 3 of the Act.“ Learned counsel for O.P. no. 2 on the other hand submits that he may be facing criminal charge(s) in different cases but he has not been convicted till today. It is next submitted that the prosecution case would itself indicate that it is an outcome of family feud. It is thus submitted that learned court 2 below has also taken into account the aforesaid aspect of the matter. The pleadings made in paragraph 9 have, however, not been controverted by filing any counter affidavit. Section 3 of the Probation of Offenders Act does allow discretion to the trial court to grant the privilege thereof to an accused who has been found guilty and convicted having regard to the circumstances of the case, nature of the offence, character of the offender as also the previous convictions, if any. From the order passed by learned Magistrate under Section 235(2), this Court is satisfied that all relevant considerations have not been taken into account. In that view of the matter, that part of the impugned order dated 5.4.2007 passed in Tr. No. 1269 of 2007 (State of Bihar through Shardendu Verma versus Biswajeet Kr. Verma) is set aside. The matter is remanded back to the learned trial court to pass fresh order in terms with Section 235(2) of the Cr.P.C. This Court clarifies that any observation made in the present order shall not prejudice the trial court either way while passing a fresh order in accordance with law. The application is accordingly disposed of. pkj ( Kishore K. Mandal, J. )