The main legal point established is the mandatory application of Section 360 Crpc in cases where the accused is a first offender and the failure to do so resulting in a gross miscarriage of justice.

( 1 ) LEAVE granted.

( 2 ) THE appellants herein have been convicted under Sections 323 and 325 read with Sections 148/149 IPC and sentenced to imprisonment for two years and six months with the further direction that the sentences would run concurrently. This conviction recorded by the Magistrate was affirmed in appeal as well as by the revisional court, namely, the High Court.

( 3 ) THE occurrence itself took place on 16-11-1988 and more than 11 years have elapsed. The entire incident is the outcome of an accident in the morning when Smt Kala, wife of the complainant was hit by a tractor which was being driven by Pratap, one of the accused persons. Admittedly, there has been no act of misbehaviour or mischief attributed to the accused when they remained in jail.

( 4 ) WHEN the case came up for admission before this Court, the learned counsel for the appellants raised the contention that the provisions of Section 360 Crpc have not at all been looked into and we, therefore, issued limited notice as to why the said provisions will not be attracted to the facts and circumstances of the present case. The provisions of Section 360 Crpc are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of section 360 Crpc is being denied. In view of the peremptory nature of the language of provisions of Section 361, the Magistrate as well as the Court in appeal and revision not having indicated as to why the provisions of Section 360 Crpc have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the code have not been complied with.

( 5 ) IN these circumstances, after hearing the learned counsel for the appellants and Mr Mahabir Singh, learned counsel appearing for the State of haryana and bearing in mind the facts and circumstances of the present case, we are of the considered opinion that this is a fit case where the Court should have invoked the provisions of Section 360 Crpc. While, therefore, upholding the conviction of the appellants, instead of the sentence, we direct that they shall execute a bond with one surety to the extent of Rs 10,000 for a period of one year within which period they shall continue to be on probation for good behaviour and keeping peace. The appellants shall prove to be of good conduct and maintain peace during the period of probation. The bond be executed before the trying Magistrate within a period of two weeks from today.

( 6 ) THIS appeal is accordingly disposed of.