BHARGAVA, J. - (1.) THIS is an application in revision by Krishnanand against the order of the learned Sessions Judge, Jaipur District, Jaipur dated 27th October, 1964 by which he upheld the conviction of the non-petitioner Harbans Singh under secs. 457 and 354 of the Indian Penal Code, but without passing any sentence on him released him on probation of good conduct under sec. 4 of the Probation of Offenders Act, (hereinafter called the Act ).
(2.) THE case of the prosecution was that the non petitioner who was Agricultural Extension Officer of Panchayat Samiti, Bairath, during the absence of the petitioner who was Block Development Officer in the same Panchayat Samiti on the night between 16th and 17th June, 1962 at about 2 a. m. entered his quarter by seal-ling over the compound wall and attempted to commit rape upon his wife Krishna Kumari who was sleeping in the court-yard of the quarter all alone. THE non-petitioner tried to over-power her, caught her from behind and gagged her mouth to stop her from crying. Smt. Krishna Kumari bit his hand, caught him by his beard and struggled and cried which awakened Gajanand who was residing in the adjacent quarter. THE non-petitioner on being challenged by Gajanand ran way after opening the door of the court-yard. A report of this occurrence was made by Krishananand on his return from Jaipur and the police after investigation submitted a charge sheet under secs. 457 and 354 of the Indian Penal Code against the non-petitioner. It appears that the non-petitioner remained absconding for some time and it was on 10th July that he surrendered himself in the court after proceedings under sec. 87 of the Code of Criminal Procedure had been started against him. The non-petitioner denied having committed any offence and pleaded alibi. The trial Magistrate disbelieved the plea of alibi and relying upon the statements of the prosecution witnesses including that of Smt. Krishna Kumari and Gajanand, found him guilty on both counts and sentenced him to rigorous imprisonment for one year and a fine of Rs. 100/-under sec. 457 of the Indian Penal Code and to one year's rigorous imprisonment under sec. 354 of the Indian Penal Code. Both the sentences were ordered to run concurrently. The non-petitioner preferred an appeal to the court of the Sessions Judge, Jaipur District, Jaipur and the learned Judge after hearing the parties maintained the conviction on both counts and also observed that the sentence awarded to the non-petitioner was also not excessive. But the learned Judge taking into consideration the fact that he was a young man of about 30 years and it was his first offence and nothing adverse had also come on the record with regard to his character and conduct and that by his conviction he was probably going to lose his job also, released him under sec. 4 of the Act on his executing a personal bond for Rs. 1000/- with one surety in the like amount to keep the peace and be of good behaviour for a period of one year. No revision application has been filed on behalf of the State against the above order and it is the husband of Smt. Krishna Kumari who has filed the present petition and it has been contended on his behalf that in the circumstances of the case the order passed by the learned Sessions Judge was absolutely unjustified and the sentence passed by the trial court should not have been disturbed. Learned counsel for the non-petitioner has argued that the Sessions Judge was entitled under the law to release the petitioner on probation of good conduct under sec. 4 of the Act and besides, he has stated the reasons why he thought it proper to do so. In such circumstances the High Court should not interfere with that order particularly on the application of a private complainant. He has cited several decisions in support of his submission. There can be little doubt that the appellate court or the High Court in the exercise of its power of revision can set aside an order made under sec. 3 or sec. 4 of the Act and pass sentence on the accused according to law. Sec. 11 sub clause (4) clearly lays it down. This will however, depend on the circumstances of each case and no hard and fast rule can be laid down where such powers will be exercised by the appellate court or the High Court in revision. Under sec. 4 the court is given a discretion to release a person found guilty of having committed an offence not punishable with death or imprisonment for life. Before applying the provisions of sec 4 it is for the court to see having regard to the circumstances of the case including the nature of the offence and the character of the offender whether or not it will be expedient to release him on probation of good conduct. It is not the intention of law that every young man or the first offender be released on probation of good conduct regardless of the circumstances in which offence was committed. In cases where offence committed is of a technical or trivial nature or is committed on sudden impulse or under some extenuating circumstances or the offender had been led astray be force of circumstances or under some evil influence or is the result of mere thoughtlessness the court would be justified in applying the provisions of sec. 4. But where the offence is a serious one and is committed with a deliberate design with full appreciation of its consequences, the court would be hardly justified in applying the provisions of sec. 4 in that case. In the present case the non-petitioner who is a fairly educated person committed this reprehensible crime upon the wife of his colleague taking advantage of her loneliness during the former's absence. Instead of showing contrition for his act, he absconded and during the trial produced witnesses in support of his false plea of alibi. The learned Judge also lost sight of sec. 12 of the Act when he observed that the non-petitioner was likely to lose his job after his conviction. On being released under sec. 4 he was not to suffer disqualification on account of his conviction and I am informed by his counsel that he has in fact been reinstated. In Kamji vs. The State (1) where the accused was convicted under sec. 354 of the Indian Penal Code and a request was made to release him on probation of good conduct, it was observed that : "the accused, a young man of about 20 years, had assaulted a lonely lady in the jungle with a view to commit rape and he would have succeeded in his designs if at that time the cry of the lady had not attracted Dita (P. W. 5) and Jeta (P. W. 6) to the spot of occurrence. The commission of this offence was the result of preplanning. It was offence of a serious nature against the society and if such offences go unpunished then it would tend to increase the offence of such a nature exposing the women-folk to the vagaries of the outrageous actions of the society I am of the opinion that the circumstances of the case are not such as to permit me to give benefit of the provisions of sec 6 of the Probation of Offenders Act to the accused. " Attention of the learned Sessions Judge does not seem to have been drawn to the above decision of this Court. Here the offence is even more grave because it was committed at the dead of night upon a lonely woman, wife of a brother officer, by committing lurking house trespass. In such circumstances the learned Sessions Judge should not have released the non-petitioner on probation of good conduct on the ground of his youth or the present one being his first offence. If in such cases the offenders are not duly punished the very object for which the salutary provisions of the law have been made would be defeated and instead of reforming the offenders it will encourage the commission of crimes. In my view in the circumstances of the case the order of releasing the non-petitioner on probation of good conduct was quite inappropriate and must be set aside. I, therefore, accept this revision application, and set aside the order of the learned Sessions Judge in releasing the non-petitioner on probation of good conduct under sec. 4 of the Act. But in view of the fact that after his conviction by the trial court he has remained in jail for about two months and the period of probation has also expired, no useful purpose would be served by sending him to jail again and the sentence already undergone by him on both counts and a fine of Rs. 100/-under sec. 457 of the Indian Penal Code will meet the ends of justice. If the fine is not deposited within one month, the non-petitioner will undergo two months' rigorous imprisonment. . ;