THE STATE Vs. PARAMA BEHERA ALIAS GOCHHAIT
HIGH COURT OF ORISSA
Parama Behera Alias Gochhait
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G.K. Misra, J. -
(1.) OPPOSITE party Parama Behera alias Gochhait was convicted under Section 454/380, Indian Penal Code for having committed lurking house trespass on 20th of December, 1971 by entering into the quarters of the Lady Health Visitor, Khamar, and committing theft of a Phillips radio with the licence belonging to the Lady Health Visitor from her quarters. Originally the accused did not plead guilty but subsequently he confessed his guilt voluntarily in Court before the trial Magistrate. The radio was recovered from his house. P.w. 1, a co -villager of his, was examined in support of the prosecution case. By accepting the confessional statement of the accused as voluntary and true the learned Magistrate convicted him under Section 454/380, Indian Penal Code and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 100/ - in default to undergo R.I. for a further period of one month on each count. He further directed that the substantive sentence of imprisonment shall run concurrently.
(2.) THE learned Magistrate further said that the accused is a first offender and he is a Harijan boy of tender age. Accordingly he released the accused on probation of good conduct for a period of one year from the date of conviction. Instead of executing the sentence at once he directed that the accused be released on probation of good conduct for a period of one year on his executing a bond with one surety for Rs. 500/ - and directed him to keep the peace and be of good behaviour during this period. The learned Magistrate 's order is in contravention of Section 4(1) of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act). Section 4(1) of the Act runs thus:
(3.) POWER of Court to release certain, offenders on probation of good conduct. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct and in the meantime to keep the peace and be of good behaviour;
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
It will appear from the sub -section that when the learned Magistrate directed the offender to be released on probation he should not have sentenced him at once to punishment. It is on account of this error that this Court exercised revisional power suo motu to issue notice to the opposite party as to why the order releasing him on probation should not be quashed.
4. The further question for consideration is whether the opposite party should be released on probation. Under Section 6(1) of the Act when any person under twenty -one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.;
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