Point of Law : Section 3 of the Probation of the Offenders Act provides for power of court to release certain offenders after admonition.

JUDGMENT :

Legality, propriety and correctness of the judgment and order, dated 26.07.2019, passed by the learned Sessions Judge, Goalpara in Crl. Appeal No. 13/2018, and the judgment and order dated 31.05.2018, passed in G.R. Case No. 695/2016, by the learned Chief Judicial Magistrate, Goalpara corresponding to Agia P.S. Case No. 37/2016, are challenged in this Criminal Revision Petition, under Section 401 readwith Section 397 of the Cr.P.C.

2. It is to be noted here that vide impugned judgment and order dated 31.05.2018, the learned Chief Judicial Magistrate has convicted the petitioner, Sri Nabadip Roy, under Section 380 IPC and sentence him to suffer S.I. for a period of 2 years and also to pay a fine of Rs. 2,000/-(Rupees two thousand) only, with default stipulation and vide judgment and order dated 26.07.2019, the learned Sessions Judge in Crl. Appeal No. 13/2018, has upheld the conviction of the petitioner in the said case. However, the learned Sessions Judge has modified the sentence of 2 years to 1 year, with fine of Rs. 2,000/-with default stipulation.

3. The factual background leading to filing of the present petition is briefly stated as under

“On 31.03.2016, at about 3:40 p.m., the informant -Shri Ranjan Kumar was attending his duty at the wireless room of Agia Police Station. Then keeping his mobile phone (Samsung Model No. 7582, Sim No. 9859820734) in the said room he went to attend some official work to the STA room of Agia P.S. Then on returning there, he found his mobile missing. Then immediately, he reported the matter to other people, who were on duty on police station and on enquiry the mobile phone was recovered from the possession of the petitioner. He then lodged one FIR with the Officer-in-Charge, Agia Police Station. On receipt of one FIR to that effect, the O/C Agia P.S. has registered Agia P.S. Case No. 37/2016, under Section 379 IPC and started investigation which culminated in submission of Charge-Sheet against the petitioner under Section 379 IPC. Accordingly, the accused petitioner entered appearance before the learned Chief Judicial Magistrate. Then the learned Chief Judicial Magistrate has framed charge against the petitioner under Section 380 IPC and on being read and explained over the charge, the petitioner has pleaded not guilty to the same. Thereafter, examining the witness and also examining the accused under Section 313 Cr.P.C. and after hearing learned Advocates of both sides, the learned Chief Judicial Magistrate has convicted the petitioner under Section 380 IPC and sentenced him as aforesaid.”

4. Being highly aggrieved the petitioner preferred this present petition on following grounds:-

(i) That, there is no evidence that the mobile was recovered from the possession of the petitioner

(ii) That, no ingredients under Section 380 IPC is established against the petitioner and

(iii) That, the Court below failed to appreciate the evidence in proper perspective and

(iv) That, there is no direct or indirect evidence against the petitioner and as such he ought to have been given the benefit of doubt and

(v) That, the learned Court below ought to have release the petitioner under the provisions of Offenders Act instead of sentencing him rigorous imprisonment for a period of 1 year and also to pay a fine of Rs. 2,000/- and

(vi) That, the petitioner has been falsely implicated out of personal gross and therefore it is contended to set it aside.

5. I have heard Mr. H. Das, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor for the State/respondent.

6. Mr. H. Das, learned counsel for the petitioner submits that the petitioner was behind the bar for a period of 103 days and that the mobile phone, which was allegedly stolen by the petitioner, was recovered on the same date and that the petitioner is a married person having a daughter and that he is ready to pay the fine amount, but the benefit of Probation of Offenders Act under Section 3 of the Probation of Offender