Judgment

KHANNA, J.:- This is an appeal by special leave by Ramnaresh Pandey against the judgment of Madhya Pradesh High Court.

2. The appellant was prosecuted under Section 506 Indian Penal Code on the allegation that be had on May 11, 1970 committed an offence of criminal intimidation by intimidating Lady Dr. Majumdar. The trail magistrate convicted the appellant under Part II of Section 506 Indian Penal Code and directed that he be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 on the execution of a personal bond in the sum of Rs. 700 and with one surety in the like amount for a period of one year. On appeal the Additional Sessions Judge Jagdalpur altered the conviction of the appellant to that under Part I of Section 506 Indian Penal Code. The learned Additional Sessions Judge set aside the order of the trial Court releasing the appellant on probation of good conduct and awarded a sentence of payment of fine of Rs. 50. In default of payment of fine, the appellant was directed to undergo simple imprisonment for a period of seven days Revision filed by the appellant against the judgment of the Additional Sessions Judge was dismissed by the Madhya Pradesh High Court. The appellant thereafter came up in appeal to this Court by special leave.

3. Learned counsel for the appellant has contended before us, as was submitted on behalf of the appellant in the High Court, that the Additional Sessions Judge should not have set aside the order directing the release of the appellant on probation of good conduct and imposed instead of that a sentence of fine and of imprisonment in default. In support of the above contention, it is urged in the first instance that by imposing the sentence of payment of fine and of imprisonment in default of payment of fine, instead of the order under S. 4 of the Probation of Offenders Act, the Additional Sessions Judge enhanced the sentence imposed upon, the appellants. Such enhancement of the sentence by the Additional Sessions Judge, according to the learned counsel, is not legally permissible. To show that sentence of fine and of imprisonment in default constitutes enhancement and is a more severe sentence compared to the order for release on probation of good conduct, our attention has been invited to Section 12 of the Probation of Offenders Act, according to which

"notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence .

In the alternative, the contention advanced on behalf of the appellant is that, in the absence of any cogent reasons, the Additional Sessions Judge should not have deprived the appellant of the benefit of the order under Section 4 of the Probation of Offenders Act. There is, in our opinion, considerable force in the second contention advanced on behalf of the appellant. It is consequently not necessary to express an opinion on the point as to whether it was legally permissible for the learned Additional Sessions Judge to pass an order in appeal that the appellant should pay a fine of Rs. 50 or in default suffer imprisonment, instead of the order made by the trial magistrate directing that the appellant be released on probation of good conduct. As mentioned earlier, the trail magistrate had convicted the appellant under Part II of Section 506. The Additional Sessions Judge on appeal altered the conviction of that under Part I of that section. Section 506 reads as under:

"Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

and if the threat be to cause death or grievous hurt, or