- (1.) THIS reference has been made by the learned II Additional Sessions Judge Pilibhit recommending that the order dated 18 -8 -1966 passed by a learned Judicial Magistrate releasing the opposite parties Under Section 4 of the U.P. First Offenders Probation Act be set aside and the opposite parties be punished and sentenced according to law. As against the order of the learned Magistrate an application in revision was filed by Shyam Singh and it was in pursuance of that application that the learned II Addl. Sessions Judge has made the reference under consideration. The reference was admitted by a learned single judge and it was directed to be listed for disposal before a Division Bench and it is hence that the reference has been listed before us.
(2.) SHYAM Singh the Applicant had lodged a report at Police Station Madho Tanda district Pilibhit against the opposite parties who were prosecuted and charges were framed against them Under Sections 147, 148 and Sections 323, 324 and 326 of IPC read with Section 149 of that Code. The opposite parties pleaded not guilty and claimed to be tried and the learned Magistrate recorded the statements of some of the prosecution witnesses. On the date fixed for the hearing of the remaining prosecution witnesses the opposite parties filed an application in court confessing their guilt. The learned Magistrate thereafter examined the opposite parties Under Section 342 of Code of Criminal Procedure and specifically invited the attention of each one of them to the fact that they had pleaded not guilty previously and that they were liable to be convicted on the basis of the confession which they had made and each one of them in reply confessed the guilt. Thereafter the learned Magistrate convicted the opposite parties of offences with which they were charged but released each one of them on probation Under Section 4 of the UP First Offenders Probation Act on execution of a personal bond in the sum of Rs. 500/ - and the furnishing of one surety each in the like amount to keep peace and to be of good behaviour and to be ready to undergo such sentence as the court may award in the event of non -compliance with the order of the court. As against the aforesaid order the Applicant filed an application in revision on the ground that one of the offences of which the opposite parties were found guilty was Under Section 326/149 of IPC which was punishable with imprisonment for life and as such the benefit of Section 4 of the U.P. First Offenders Probation Act could not have been extended to them. The learned Sessions Judge who heard the application in revision saw force in the aforesaid ground and accordingly made the reference under consideration. There was previously a conflict of judicial opinion in this Court on the question whether Section 4 of U.P. First Offenders Probation Act would be applicable to a case where the maximum punishment provided for the offence proved was life imprisonment but the controversy has been set at rest by a Full Bench decision of this Court in Bhodeo v. Jagdish Prasad, 1967 AWR 584 and it has been held that Section 4 referred to above would not apply to a case in which the offence proved is punishable with life imprisonment whether as a minimum or as a maximum penalty.
(3.) AN offence Under Section 326 of IPC is punishable with imprisonment for life and as such the benefit of Section 4 referred to above could not have been extended to the opposite parties so far as the offence Under Section 326/149 was concerned.;