IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.46 of 1998 Decided on : March 17, 2010 State of H.P. …Appellant. Versus Ashok Kumar and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 10th July, 1997, of the learned Sessions Judge, Hamirpur, whereby respondents, who had been convicted of offences, under Sections 457, 380 and 411 of the Indian Penal Code, and sentenced to undergo imprisonment for one year and to pay fine, for the said offences by the trial Court, have been ordered to be released on probation, under Section 4 of the Probation of Offenders Act. 2. Respondent Ashok Kumar was alleged to have committed trespass, by entering the house of one Vinay Kumar, with intent to commit theft and then to have committed theft of utensils from that house. Aslam Khan, the other respondent, was alleged to have received the Whether reporters of the local papers may be allowed to see the judgment? …2… stolen utensils from the first named respondent, knowing or having reason to know that the utensils were stolen. 3. Trial Court convicted respondent Ashok Kumar of offences, under Sections 457 and 380 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year, in respect of each of the aforesaid two offences and also to pay Rs.1,000/- as fine, on each count. The other respondent Aslam Khan was convicted of offence, under Section 411 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-. 4. Respondents appealed to the Sessions Court. Learned Sessions Judge has passed the impugned order for the release of the respondents on probation. It is against this order that the State has come in appeal to this Court. 5. We have heard the learned Assistant Advocate General as also the learned counsel representing the respondents. 6. A perusal of the record shows that respondent Aslam Khan was below 18 years of age at the relevant time and, hence, a juvenile, within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which has been given retrospective effect, per Explanation to Section 20 of the said Act. Since Aslam Khan was juvenile, he could not have been sentenced to …3… undergo imprisonment. In view of this position, no order need be passed for imposing sentence upon him. 7. As regards the other respondent (Ashok Kumar), we are of the considered view that the learned Sessions Judge has erred in extending the benefit of Section 4 of the Probation of Offenders Act. The offences of which the said respondent was punished are of serious nature. Facts and the circumstances of the case also do not justify the extension of the benefit of Section 4 of the Probation of Offenders Act, particularly when the respondent was more than 30 years old, at the time of the commission of the crime and the theft was committed by him, after house breaking in the night. However, we feel that at this belated stage it would be too harsh for the said respondent to be sent to jail. Offence was committed in the year 1991, when the respondent was 31 years of age. Now, he is supposed to be 50 years old. We feel that the ends of justice would be met in case, after setting aside the impugned order of the Sessions Judge, so far as this respondent is concerned, the respondent is sentenced to imprisonment for the period he has been in custody during the investigation of the case. From the record, we find that he remained in custody for four days. So, he is sentenced to imprisonment for the period of detention already undergone and to pay fine of Rs.1,000/-, in respect of each of the offences, he has been convicted of, i.e. offences, under Sections 457 and 380 of …4… the Indian Penal Code. In default of payment of fine he shall undergo imprisonment for a period of one month. 8. In case the fine is not deposited, within one month, from today, in the Court of the concerned Judicial Magistrate, the said Magistrate would take appropriate steps to recover the fine and shall also send the said respondent to jail to serve imprisonment awarded in default of payment of fine. Appeal stands disposed of. ( Surjit Singh ), J March 17, 2010(sd) ( Rajiv Sharma ), J