IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.68 of 2009 MD.MATIN S/O-Yusuf, R/O-Vill-Kahara, P.S.-Fulwaria, Distt.-Begusarai. …………………………………………..Appellant. Versus 1.THE STATE OF BIHAR 2.MD. MUNNA, S/O-Md. Hamid 3.HARE RAJ SHARMA, S/O-Darogi 4.MD. JAMAL, S/O-Md. Salim 5.MD. RAHTAWA, S/O-Kalim 6.MD. BALA, S/O-Sulman 7.YOGENDRA PRASAD 8.SHYAMA DEVI, W/O-Yogendra Prasad 9.MOST. MARIYAM, W/O-Late Marhum Kalam Mian …………………………………………..Respondents. ----------- 6/ 10.08.2009 Heard learned Counsel for the appellant and the State. This application has been filed for grant of special leave to appeal against the judgment dated 18th April, 2009 passed by Sri Dipak Kumar, Judicial Magistrate, Ist Class, Begusarai in Trial No.- 32 of 2009/Complaint Case No.-318C of 2001 whereby O.P. No. 2 to 9 were put on trial under Sections 380, 456/34 of the Indian Penal Code and were convicted only under Section 380 of the Indian Penal Code but they were granted benefit of Section 3 of Probation of Offenders Act. 2 Submission is that one of the acquitted person was earlier convicted by the Railway Court, so he should not have been granted benefit of Section 3 of Probation of Offenders Act. It is for the complainant/prosecution to prove that earlier the accused was convicted. Nothing has been brought on the record because according to the submission of the petitioner the sentence was only for fine. So, the court was justified in passing the order. Accordingly, this application is dismissed without merit. kksinha/ (Shyam Kishore Sharma, J.)