Decided on March 28,1984

ROSHAN LAL Appellant


KASLIWAL, J. - (1.)THIS criminal revision is directed against the conviction of the petitioner under sec. 26 of the Rajasthan Forest Act, 1953 and sentencing him to undergo one month's simple imprisonment. According to the prosecution case, the petitioner alongwith co-accused Prabhoo was caught on September 19 1982, while cutting stones by digging a pit of size 1/10'xl/10' in the mines at Moja Dolasia closure situated in Saheli-ki-Ghat District Bundi. The accused pleaded guilty to the charge and thereafter the learned Magistrate gave the above sentence. An appeal filed by the petitioner was also dismissed by the learned Sessions Judge, Bundi by his order dated March 26, 1984.
(2.)LEARNED counsel for the petitioner though initially challenged the conviction of the petitioner but he could not persist it any longer and he submitted that it was the first offence committed by the petitioner. The offence is punishable with a maximum imprisonment for a term extending to six months or with fine extending to Rs. 500/- or with both and in view of the nature of the case alleged against him, he was entitled to the benefit of probation.
Learned Public Prosecutor was unable to show as to why the benefit of probation may not be given to the petitioner in the facts and circumstances of this case.

Learned Sessions Judge dis-allowed the prayer of the petitioner for granting benefit of probation on the ground that the petitioner was of age more than 30 years and belonged to business community. It was further observed by the learned Sessions Judge that a person like the petitioner, who was conversant with law and belonged to a cultured society, should be given an examplary punishment for such act committed by the petitioner.

In the present case, it is not disputed that it was the first offence committed by the petitioner. The offence itself is punishable with a maximum sentence of six months' imprisonment or a fine extending to Rs 500/- or with both. Thus, legislature itself has provided the maximum sentence of such offence as six months. The charge against the petitioner is that he was found cutting stones by digging a pit of the size 1/10' x 1/10'. There is no distinction in law with the case of an accused belonging to business community. There is no reason as to why he should not be granted a benefit of probation, if he has committed an offence for the first time and is found punishable with an offence, whose punishment is maximum six months. The petitioner has also remained in Jail for three days and thus taking in view the entire facts and circumstances of the case, I am of the view that the petitioner is entitled to the benefit of probation in the present case.

The revision is thus allowed in part. The conviction of the petitioner is maintained and the petitioner is ordered to be released on probation provided he furnishes a personal bond in the sum of Rs. 1000/- with one surety in the like amount to the satisfaction of learned Judicial Magistrate No. 1, Bundi for maintaining peace and to remain of good behaviour for a period of one year. In case of breach of any provisions of bond, the petitioner would serve out the remaining part of the sentence awarded to him. .

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