- (1.)GANESBARAM has filed this application under Section 561-A, Criminal P. C. and it arises out of the following circumstances:
(2.)GANESHARAM petitioner, who was prosecuted in the Court of the Additional Munsif-Magistrate, Bikaner for an offence under Section 335, Penal Code, was acquitted by the learned Magistrate vide his judgment dated 28th March, 1966. An appeal was preferred by the State against the said judgment and this Court vide its judgment dated 18th January, 1968, set aside the acquittal and convicted the petitioner under Section 325, Penal Code and awarded him rigorous imprisonment for one year. Then an application under Section 561-A, Criminal P. C. was moved on behalf of the petitioner praying that the order of conviction passed by this Court be set aside and his counsel who could not attend the Court on the day when the appeal was decided be allowed to argue the appeal. By another application dated 18th February, 1968, it was further prayed that in the exercise of its inherent jurisdiction the Court may extend the benefit of Section 6 (1) of the Probation of Offenders Act (hereinafter called the Act) to the petitioner who was below 21 years of age when the judgment of the trial Court was pronounced.
(3.)MRS. Chatterji who represents the petitioner did not press the first application for setting aside the conviction, but she strenuously argued that it was the duty of the learned Deputy Government Advocate, who appeared on behalf of the State when the appeal was heard and decided ex parte by this Court, to have brought this fact to the notice of the Court that the petitioner was below 21 years of age and that he was entitled to the benefit of the provisions of Section 6 of the Act. If this fact had not escaped the notice of the Court at the time of the hearing of the appeal, then, according to Mrs. Chatterji, the Court had no alternative but to order for the release of the accused under the provisions of Sections 3 and 4 of the Act. It was further argued that this Court by Bending the petitioner to jail has pissed an order which was not within the competence of the Court as the provisions of Section 6 (1) of the Act are mandatory in nature and the Court was bound to comply with the requirements of those provisions.
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