IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.508 of 2011 Ram Narayan Yadav Versus The State Of Bihar & Anr. ---------------------------------- 7. 13.9.2011 Heard both sides. The grievance of the appellant- informant is that the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-III, Saharsa, was directing respondent no.2, namely, Tarni Yadav to execute a bond of Rs. 5,000/-( five thousand) with two sureties of the like amount each under Section 4 of the Probation of Offenders Act after setting aside his conviction under Section 307 of the Indian Penal Code which was recorded by the learned trial court, i.e., Ist Assistant Sessions Judge, Saharsa, in Sessions Case No. 70 of 1988. The learned lower appellate court was convicting respondent no.2 under Section 324 of the Indian Penal Code and, thereafter, was passing order on his release on execution of a bond as noted above. The contention is that before the lower appellate court could have proceeded to pass the order it must have complied with some mandatory parts of that particular Section 4 of the Probation of Offenders Act regarding being satisfied about the permanent place of abode of the offender as also the sureties who were to furnish the bonds as directed by the court. The next grievance was that before the above 2 noted lower appellate could have proceeded under Section 4 of the Probation of Offenders Act, it had to seek a report from the Probation Officer about good conduct of the offender and other circumstances, like, the place of living of the offender and then it could have proceeded to pass the order because Section 4(3) of the Probation of Offenders Act was requiring the order to be passed only if it was in the interest of the offender as also in the interest of public and further that during the probation period the offender was to remain under the supervision of the Probation Officer. After having perused the provisions of Section 4 of the Probation of Offenders act, I find that the expediency to release the offender on good conduct has to be judged taking into consideration the circumstances of the case including the nature of offence and those circumstances could be considered only when a report had been sought for from the Probation Officer before the court had decided to proceed under section 4 of the Probation of Offenders Act. It is too well known to be pointed out that the provisions of Section 4(1), (2) and (3) are mandatory in nature and unless the court had sought a report and had considered the same, it could not proceed to direct release of an offender on executing a bond in terms of the provision. ( Please see 2007(2) P.L.J.R. 555). Above is the fallacy the sentencing order passed by the Presiding Officer, Fast Track Court- III,Saharsa suffers 3 from and in that light, I set aside that part of the order passed by the lower appellate court in Cr. Appeal No.46 of 2002 which was passed by order dated 21.1.2011. I remit back the matter for that particular purpose to the learned appellate court, i.e., Fast Track Court-III, Saharsa for considering afresh in the light of the provisions of Section 4 of the Probation of Offenders Act, the desirability of directing release of the solitary respondent under the Probation of Offenders Act and for that purpose the lower court records which have been received in connection with the present appeal shall be remitted back by the office of the court with a copy of he present order. As soon as the lower appellate court receives a copy of the present order along with its records, it shall proceed in the light of Section 4 of the Probation of Offenders Act. In the result, the appeal is allowed in the above terms at the admission stage itself. Kanth ( Dharnidhar Jha, J.)