I. S. ISRANI, J. - (1.) THIS criminal appeal under Section 378 (i) (Hi) Cr. P. C. read with Section 11 of the Probation of Offenders Act, 1958 has been filed against the judgment of learned Sessions Judge, Sawai Madhopur camp Ganga-pur City dated November 29, 1979 in Sessions Case No, 36/79 (State vs. Chhut-tan & ors) by which even though the respondents were found to have committed offence under Section 399/402 I. P. C. but were given benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter called as the Act, 1958 ).
(2.) IT will suffice to state for the purposes of this appeal that on June 27, 1979 at about 10 p. m. a police party while on petrolling got information from an informer about the presence and preparation for decoity being made by the accused-respondents and three other miscreants who were said to be armed with guns, lathi beneath the culvert of Rivulet Kudana Nala. Thereupon, the police parly alongwith informer and two other respondents of village went in Jeep and encircled the Nala and saw five miscreants on one side and three on the other side while five respondents could be arrested, the other three were successful in making good their escape. Accused-respondents Chhuttan and Harbilas were each found in possession of a gun and bags having gun powder etc. The respondents were arrested and an FIR. to this effect got registered at the police station, Karauli, District Sawai-Madhopur and a case under Section 399/402 I. P. C. and 3/25 Arms Act was registered against them. After completion of investigation, challan was filed in the relevant Court and the accused respondents were committed to face trial in the Court of learned Sessions Judge, Sawai Madhopur camp Gangapur City. The Accused-respondents denied the charge, and after examining evidence and hearing both the parties the trial court held respondents guilty of offence under Section 399/402 I. P. C Accused-respondent Harbilas and Chhuttan were further found to be guilty under Sec. 3/25 Arms Act, 1962. After hearing the arguments of both sides regarding punishment, the trial court accepted the plea of the respondents and instead of sentencing them, gave the respondents benefit of Section 4 of the Act, 1958 by the judgment under appeal. This case has been on Cause-list since quite few days but none has appeared either on behalf of State or on behalf of the respondents. As the law- vers are absent from the Courts since more than a month it is not possible to appoint any lawyer as the Amicus Curiae to represent the accused-respondents. I have carefully gone through the judgment of the trial court, the memo of appeal filed on behalf of the State as also evidence and the documents on record. From the order dated April 21, 1980 it is evident that the application for leave to appeal was not pressed against the order of the trial court as whole but the order was confined under Section 11 (2) of the Act, 1958, hence the appeal was admitted under Section 11 of the Act, 1958. The main grounds on which the appeal has been filed on behalf of the State are that the trial court has committed error and has granted probation even though some of the accused-respondents were found in possession of unlicenced arms and that the order of probation is based on irrelevant and illegal considerations and is not based on any material entitling the accused-respondents for such a benefit. It is further contended that the trial court erred in granting probation without looking to the antecedents, occupation and previous record and any report of the Probation Officer.
(3.) IT is correct that the trial court came to the conclusion that the accused respondents were found guilty to have committed offence under Section 399/402 LP C. However, after hearing both the sides on point of punishment, the respondents were given benefit of provisions of Section 4 of the Act, 1958 and granted probation on furnishing bond in the sum of Rs. 3000/- and a surety ' in like amount by each of them. The trial court while granting probation also put three conditions on the respondents as under : - "1. . That the respondents shall appear in the Court whenever called upon within a period of 3 years to receive punishment; 2. That the respondents shall maintain good behaviour and peace; 3. That they shall not use any obstacle and they will also pay Rs. 50/-each as cost of prosecution. " From the order of the trial court it is also evident that respondents (1) Chuttan, (3) Jhamman, (4) Lakhan & (5) Jhabbu were found to be agriculturists while respondent No. (2) Harbilas was said to be a tailor. It is also mentioned that the respondents are not habitual offenders and that the prosecution has also not proved any previous conviction against them. Thus, evidently the respondents were convicted for the first time and the trial court after taking various considerations, which are detailed in the judgment, came to the conclusion that it will be in the interest of justice to grant them benefit of the provisions of Section 4 of the Act, 1958 to the respondents. It is no where laid down in sub section 2 of Section 4 of the Act, 1958 that the trial court shall call a report of Probation Officer and consider the same before passing such an order. What is required is that if any report of the Probation Officer is available on record, the same shall be taken into consideration before passing any order under Section 4 of the Act, 1958. It is, therefore, evident that the contention raised on behalf of the State that the antecedents, occupation, previous record and a report of Probation Officer was not considered has no force. There was no report of Probation Officer on record and antecedents, occupation and previous record were considered at the time of passing the order by the trial court. It may also be pointed out that the behaviour of the respondents when challenged by police petrolling party is also significant in as much as neither they tried to run away nor put up any resistance even though they were armed with guns The Act, 1958 has been enacted with a view to make an effort to reform the accused-persons to be better citizens of the country and rehabilitate them as useful members of the society without subjecting to deleterious effects of jail life. The respondents were evidently not habitual offenders and if sentences to jail are likely to come into contact with harden criminals which may have the effect of turning the accused-respondents themselves in hardened criminals before they come out from the jail. The incident took place on June 27, 1979 and the benefit of the provisions of Section 4 of the Act, 1958 was given to them be trial court on November 29, 1979 and within 3 years, there is nothing on record to show that they did not abide by the conditions laid down in the order by which the benefit was given to them of the provisions of Section 4 of the Act, 1958- ;