HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No. : 181 of 2003 Decided on: 10.9.2010 Subodh Kumar. ……… Petitioner. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Dushyant Dadwal, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is a revision petition filed by the petitioner under Sections 397 and 401 of the Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kangra at Dharamshala, dated 1.9.2003, vide which the conviction imposed upon the petitioner by the learned Judicial Magistrate Ist Class, Court No.II, Dharamshala, to undergo rigorous imprisonment for six months and to pay a fine for a sum of Rs.500/- under Section 452 of the IPC and simple imprisonment for three months under Sections 323 and 506 of the IPC, was affirmed. 2. Briefly stated, the facts of the case are that a report was lodged with the police that on 5.6.19098, at about 4.45 p.m., at a place known as Upper Barol, the respondent committed house trespass into the house of one Om Parkash and caused hurt to Sharda Sharma and also threatened the complainant Om Parkash and Sharda Sharma to kill them. The petitioner also allegedly broke the telephone instruments and the wires in the house of the complainant Om Parkash. On - 2 - this report lodged by the complainant Om Parkash Sharma, a case was register and after investigation, the challan was filed before the learned trial Court. The learned trial Court tried the petitioner under the Sections mentioned above and on conclusion of the trial, the petitioner was held guilty and convicted and sentence as detailed above. On appeal by the petitioner, the findings of the learned trial Court were affirmed by the learned Sessions Judge, Dharamshala. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The first point taken by the learned counsel for the petitioner was that before confirming the sentence upon the petitioner, the Magistrate or the learned Sessions Judge has not considered the question as to whether the petitioner deserves to be released on probation. It is not mandatory for the court to grant the benefit of Probation of Offenders Act, but it must record reasons for not granting the benefit of Probation of Offenders Act to the persons convicted. I am supported by a decision of this Court in State of Himachal Pradesh versus Shakti Prashad, 1984 ILR (Himachal) 168, as well as by a decision of the Apex Court in Chandershwar Sharma versus State of Bihar, 2001(3) Crimes 45 (Supreme Court), wherein it was held that a mandatory duty is cast upon a Magistrate to consider the question of applicability of Section 360 of the Code of Criminal Procedure and that recording of reasons is mandatory in nature. 5. In view of the above discussion, it is clear that the learned Magistrate or the learned Sessions Judge was - 3 - required to record reasons as to why the benefit of Probation of Offenders Act was not being accorded in favour of the petitioner and since that has not been done, the findings of the learned Sessions Judge affirming the sentence imposed upon the petitioner is set aside. The learned Sessions Judge shall consider the question of granting the benefit of Probation of Offenders Act or of Section 360 of the Cr.P.C., as the case may be. However, it is not mandatory to grant the benefit under this provision but the Court has to give reasons for not granting the benefit in view of the above decisions. I may mention herewith that no findings are being given in regard to the findings of the learned trial Court holding the petitioner guilty and that question is kept open which shall be considered in case an appeal is preferred by either of the parties. 6. The petition is accepted to the above extent and the case is remanded to the learned Sessions Judge, who shall hear the parties in view of the above observations. The parties, through their counsel, are directed to appear before the learned Sessions Judge on 19.10.2010 and the learned Sessions Judge shall try to dispose of the case within a period of three months from the date fixed. The Registry is directed to send the records of the case alongwith a copy of this judgment to the learned Sessions Judge, Dharamshala, forthwith. The appeal stands disposed of accordingly. September 10, 2010. (V.K. Ahuja), (TILAK) Judge