S. S. BYAS, J. - (1.) ACCUSED Pal Singh was convicted under sec. 25 (a) of the Arms Act, 1959 (hereinafter referred to as 'the Act') and was sentenced to two month's R. L. with a fine of Rs. 200/-, in default of payment of fine to further undergo one month's simple imprisonment by the learned Munsif and Judicial Magistrate, Padampur vide his judgment dated December 10, 1982. He went in appeal. But his appeal was dismissed and his conviction was maintained by the learned Sessions Judge, Shri Ganganagar vide his judgment dated August 2, 1983. He has now come in revision.
(2.) BRIEFLY stated the prosecution case is that the accused was found in possession of one country made pistol and some cartridges on 3. 4. 79 on the road side when he was coming from Gajsinghpur by the Station House Officer, P. S. Padampur. A case was registered against him and after investigation, a challan was submitted in the court of the learned Munsiff and Judicial Magistrate, Padampur. After trial, the accused was found guilty under section 25 (a) of the Act. He had no authority or licence to possess the fire-arm. The accused was, consequently, convicted and sentenced. In view of the overwhelming evidence and concurrent findings of the two courts-below, the learned counsel for the accused did not challenge his conviction. His contention before me is that the trial court failed to make a compliance of the provisions of Section 361, Cr. P. C. , inasmuch as, it did not record in its judgment the special reasons for not extending the benefit of probation to the accused. It was argued that the provisions of Secs. 360 and 361, Cr. P. C. are mandatory. It was further argued that there was no previous conviction at the discredit of the accused. There were no good reasons as to why the benefit of probation should not be extended to him. As such, the benefit of probation be given to the accused. In reply, the learned Public Prosecutor submitted that the offence of keeping fire-arm is grave and serious in nature and as such, the benefit of probation of good conduct should not be extended to the accused. I have taken the respective contentions into consideration. Section 360, Cr. P. C. makes it obligatory on the part of the court that whenever any person not under 21 years of age, is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, he is to be released on probation of good conduct, keeping his age, character etc. in view. Section 361, Cr. P. C. lays down in explicit terms that where the provisions of Sec. 360, Cr. P. C are applicable and the court wants to have a departure from those provisions, it shall record in its judgment, the special reasons for not doing so i. e. in not releasing the offenders on probation of good conduct. The provisions of Sec. 361, Cr. P. C. for recording the special reasons, are mandatory and admit no exception. It is of course open to a court not to have a resort to Sec. 360 but in doing so, the viz. law Sec. 361 casts a duty on him to record the reasons. I am fortified in my view by the observations made in Vishnu Dev v. State of West Bengal (1 ). It is apparent from a bare perusal of the judgment of the learned Magistrate that he has not recorded in his judgment the special reason for not releasing the accused on probation of good conduct under section 360, Cr. P. C. It is lamentable that this important provision of law also escaped the notice of the learned Sessions Judge. Any way, the matter may now be dealt with. The offence under section 25 (a) of the Act is punishable with imprisonment for a term, which may extend to three years or with fine or with both. Since the offence has been made punishable also with fine only, the intention of the legislature is that the accused should not generally be sent to jail. The learned Magistrate has of course observed at one place in his judgment that the offence was of serious nature because the accused was found in illegal possession of the fire-arm on a public place. As such, he was not entitled to be released on probation of good conduct. This hardly constitutes the special reasons within the meaning of Sec. 361, Cr. P. C. If the legislature took this offence as grave and serious, the offence would not have been made punishable with fine only in alternative. There is no previous conviction at the discredit of the accused. The offence was committed long back more than four years ago in 1979. Taking these factors into consideration, it would not be proper to send the accused to jail where he is likely to come in contact with the hardened criminals. In my opinion, it is a fit and proper case where the benefit of probation of good conduct under section 360 Cr. P. C. should be extended to the accused.
(3.) IN the result, the revision of accused Pal Singh is partly allowed. His conviction under section 25 (a) of the Act is maintained but the sentence of imprisonment and fine awarded to him is for the present set aside and it is ordered that the accused will be released, if he enters into a bond for Rs. 3000/-together with one surety in the like amount to the satisfaction of the learned Munsif and Judicial Magistrate, Padampur to appear and receive sentence when called upon during the period of two years & in the meantime to keep the peace and be of good behaviour. The learned Magistrate is directed to release the accused as soon as the bonds referred to above are furnished before him. .;