HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 457 of 2003 Decided on: 27.9.2010 Vijay @ Sanju ..............Appellant Versus State of H.P. ………Respondent Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. S.D Vasudeva, Advocate For respondent Mr. J.S Guleria, Assistant Advocate General V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 374 Cr.P.C against the judgment of the Court of Learned Special Judge, Una dated 26.9.2003 vide which the appellants were acquitted of the offence under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, but were convicted and sentenced as under: Under Section 427, Six months and fine of Rs.500/- read with section 149 IPC Under Section 147 IPC Three months and fine of Rs.500/- In default, of payment of fine, they were to undergo further imprisonment for one month. 2. Briefly stated, the facts of the case are that complainant Tarsem Singh filed a report with the police that he is Harijan by caste and was in possession of 14-15 kanals of Government land for the last 40 years. He had sown maize crop last year in the said land and has also sown cauliflower, carrot 1 Whether reporters of local papers may be allowed to see the judgment? Yes as well as patato. He had also stacked 40 quintals of the sheaf of maize crop to be used as fodder for domestic cattle. On 11.11.2001 at about 12.30 p.m., all the accused by forming an unlawful assembly with a view to dispossess the complainant from the land and put on fire Bajaj engine alongwith Chhapar and also called him by name. The mother of the complainant was also named by the said appellants for which an FIR was registered. After investigation the challan was filed against the appellants under Sections mentioned above. The appellants were tried by the learned Special Judge, who acquitted them as detailed above under Sections 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, but convicted and sentenced them under Section 427 read with section 149 IPC and under Section 147 IPC as detailed above. 3. I have heard the learned counsel for the parties and have gone the record of the case. 4. The first point taken by the learned counsel for the appellants was that before sentencing the appellants, the learned Sessions Judge has not considered the question as to whether the appellants deserve 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 has 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 Sessions Judge was required to record reasons as to why the benefit or Probation of Offenders Act was not being accorded in favour of the appellants and since that has not been done, the findings of the learned Sessions Judge sentencing the appellants are 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 here that no findings are being given in regard to the findings of the learned Trial Court holding the appellants guilty and that question is kept open which shall be considered in case an appeal is preferred by either of the parties. 6. The appeal 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 8.11.2010 and the learned Sessions Judge shall try to dispose of the case on or before 31.12.2010. The Registry is directed to send the records of the case alongwith a copy of this judgment to the learned Special Judge, forthwith. The appeal stands disposed of accordingly. September 27, 2010. (V.K. Ahuja), Judge. ( veena )