IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.677 of 2011 Krishna Kumar Yadav, son of Late Mahabir Yadav, resident of Mohalla-Polson Model Dairy Campus, Digha, P.S. Digha, Town & District Patna. ---Petitioner Versus 1. The State Of Bihar through the District Probation Officer, Patna. 2. District Probation Officer, Old Secretariat, Patna. 3. Ramji Rai, son of Bibhisan Rai, resident of Village Nakta Diara, P.S. Digha, District Patna. ---Respondents ----------- 3. 22.7.2011 Heard learned counsel for the petitioner and Mr Bibhakar Tiwary, Assistant Counsel to Standing Counsel no.21 for the State. On a complaint Case vide no.256(C)of 1999, T.R.No.294 of 2009, the petitioner was convicted under section 323 of the Penal Code and was sentenced to serve a simple imprisonment for six months by order dated 2.3.2009, as contained in Annexure 2, passed by the Judicial Magistrate, First Class, Patna. The petitioner assailed the aforesaid judgment/order dated 2.3.2009 in Cr. Appeal No.100/2009/11/2010, which was heard and disposed of by the Second Additional Sessions Judge, Patna, vide judgment and order dated 23rd of April, 2011, as contained in Annexure 3. On appeal, the conviction was maintained, however, the sentence was reduced from six months’ simple imprisonment to one month’s simple imprisonment. The grievance of the petitioner is that the courts below while passing the judgment and the order of sentence did not consider the provisions of sub-section (2) of section 4 of the Probation of Offenders Act, 1958 as per the general direction of this - 2 - Court in the case of Upendra Nath Chaudhary v. High Court of Judicature at Patna, reported in 2007(2) PLJR 554, whereby this Court directed all the trial courts to consider the relevant provisions of the Probation of Offenders Act and before passing the order, the report of the concerned Probation Officer be called for. The Court, however, may not agree with the report, but nonetheless calling for the report from the concerned Probation Officer is mandatory. That having not been done, the sentence passed against the petitioner is not correct and justified in law. It is further submitted that even though the issue was raised and pointed out by the State before the appellate court which although has taken note in paragraph 7 of the judgment, however, no report was called for from the Probation Officer before passing the order. Learned counsel submits that the petitioner is aged about 77 years and, as such, there is no efficacious remedy than to invoke the Writ jurisdiction of this Court for redressal of his grievances, as referred to above. Learned counsel appearing for the State, in the above facts and circumstances and also in the light of the decision of this Court, as referred to above, has no objection if the matter is remitted to the lower appellate court for consideration in the light of the aforesaid decision of this Court so as to pass order on consideration of the report of the Probation Officer. Considering the submissions of the parties, this Court is of the opinion that the court below ought to have considered the direction of this Court, as referred to above, before passing the order for serving the sentence. - 3 - In this view of the matter, the lower appellate court i.e., the Second Additional Sessions Judge, Patna is directed to act as per the direction of this Court in the case of Upendra Nath Chaudhary v. High Court of Judicature at Patna, reported in 2007(2) PLJR 554, and pass appropriate order in accordance with law. Till the disposal of the matter, no coercive steps shall be taken against the petitioner pursuant to the warrant of arrest, if any, issued against him in Criminal Appeal No.100/2009/11/2010. The writ application stands disposed of with the above observations/directions. It is made clear that this Court has not expressed any opinion on the merits of the matter either on conviction or sentence as aforesaid. The petitioner is directed to ensure appearance of his Advocate in the court of the Second Additional Sessions Judge, Patna on or before 5th of September, 2011 along with the certified copy of the present order, failing which this order shall stand vacated and the writ application shall stand dismissed. Let this order be communicated to the court of the Judicial Magistrate, First Class, Patna, in connection with Complaint Case No.256(C)of 1999, T.R.No.294 of 2009 and also to the court of Additional Sessions Judge-II, Patna in connection with Cr. Appeal No.100/2009/11/2010, through fax on the cost being deposited by the petitioner. PNM (Shailesh Kumar Sinha, J.)