S. N. BHARGAVA, J. - (1.) THIS is a revision petition directed against the order of the learned Addl. Sessions Judge No. 2, Kota dated 22-2-1983, confirming the sentence passed by the Chief Judicial Magistrate, Kota, convicting the accused-petitioner under Section 4/25 of the Arms Act. An F. I. R. was registered under Sections 367 and 392, IPC at the police station, Gumanpura Kota on 8-11-1977, on the basis of a report given by one Shri Laxman Das, wherein it was alleged that at about 3 p. m. three persons hired his scooter-rickshaw for going to the aerodrome circle, and after reaching the aerodrome circle they asked him to go further. On his refusal one of them forced him to go J. K. Factory and back and did not pay the money when he cried for help-near police station Gumanpura, three-four police constables came and appre-hended the accused persons. A challan was submitted after investigation in the court of Addl. Munsiff & Judicial Magistrate No. 2, South, Kota City who committed the case to the Court of Sessions Judge, Kota. The learned Addl. Sessions Judge No. 2, Kota framed charge under Section 347 and 393, IPC and remanded the case back to the Chief Judicial Magistrate. The learned Chief Judicial Magistrate after holding the trial acquitted the accused petitioner of the charges under Section 347 and 393, IPC, but held the accused-petitioner guilty under Section 25 read with Section 4 of the Arms Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-and in default of payment of fine to further undergo rigorous imprisonment for one month. On appeal, the learned Addl. Sessions Judge, Kota reduced the sentence of imprisonment from 6 months to 3 months, but increased the fine from Rs. 100/- to Rs. 300/- and in default of payment of fine to further undergo one month's rigorous imprisonment. It is against this order the present revision petition has been filed.
(2.) THE learned counsel for the accused-petitioner has submitted that the judgement of the two courts below are perverse and there is no independent evidence to support the conviction of the accused-petitioner. I have carefully gone through the judgements of the two courts below. It is a pure finding of fact based on appreciation of evidence. This Court sitting in revision cannot interfere with the pure finding of fact. Therefore, I am unable to accept the contention of the learned counsel for the petitioner and hereby confirm the conviction passed by the two courts below under Section 4/25 of the Arms Act. The learned counsel for the accused-petitioner then submitted that the petitioner should have been granted the benefit of Sec. 360, Cr. P. C. and should not have been sent to jail, but released on probation. The two courts below have not thought it proper to grant the benefit of probation because it will not be in the interest of justice and in keeping in mind the fact that in Kota city there are a number of incidents of knife stabbing. It will not be proper to grant probation. The learned counsel for the accused petitioner has also argued that no opportunity was granted to the petitioner to produce evidence on the circumstances which may lead the Court to pass a lesser sentence and, therefore, it amounts to violation of Section 235 (2), Cr. P. C. He has relied on Karam Ali vs. State of U. P. (1 ). The Supreme Court has observed that recording in the order sheet that he has heard the accused on the sentence and then proceed to pass the sentence is no compliance of Section 235 (2), Cr. P. C. The learned Sessions Judge should have postponed the proceedings after passing the order of conviction and given an opportunity to the accused to produce evidence and the circumstances which may lead the court to pass a lesser sentence. The learned Sessions Judge has also not recorded the statement of the accused after recording the order of conviction. He has further relied on Muniappan Vs. State T. N. (2), in which it has been observed that the obligation to hear the accused on the question of sentence which is imposed by Sec. 235 (2), Cr. P. C. is not discharged by putting formal questions to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicite from the accused all information which will eventually have bearing on the question of sentence. The Court should consider the question of sentence on a broad sociological point of view. In the present case also, there is only a formality which has been observed by recording in the judgement that the accused was heard on the question of sentence. It is high time when the lower Courts should observe the law as interpreted and laid down by the Supreme Court. We have been noticing that the lower Courts do not grant proper opportunity to lead evidence to show the circumstances why a lesser sentence should not be passed. The nature of circumstances cannot be defined and it depends from case to case. In the present case, there is an empty formality. I am of the view that both the courts below have failed to discharge their obligation enjoined by Sec. 235 (2), Cr. P. C. But no useful purpose will be served in remanding the case for compliance of Sec. 235 (2 ). The petitioner has already remained in jail for a week. Moreover, in the present case the accused has already been acquitted of the main offence under Section 347 and 393, I. P. C. and has only been found guilty under Section 4/25 of the Arms Act for carrying a knife without licence in my view, deserve to be given the benefit of Section 360, I. P. C. The revision petition is, therefore, partly allowed. Conviction of the accused-petitioner under Section 4/25 of the Arms Act is maintained, but the accused-petitioner is granted the benefit of Section 360, Cr. P. C. He should execute a bond for a sum of Rs. 5000/- with two sureties of Rs. 2,500/- each in the Court of CJM Kota to appear and receive sentence whenever called upon during three years and in the meantime to keep the peace and be of good behaviour and not to repeat such offence. . ;