IMPORTANT POINT
The court emphasized the importance of discretion in sentencing, allowing probation for first-time offenders in non-heinous cases.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. S.C.Biswas, learned counsel for the petitioners and Mr. P. Borthakur, learned Additional Public Prosecutor (APP), Assam for the State.

2. The present criminal revision petition under Sections 397/401 read with Section 483 of the Code of Criminal Procedure, 1973 is filed challenging the legality, propriety and correctness of the judgment and order dated 13.06.2011 passed by the learned Judicial Magistrate, First Class, (JMFC, in short) Karimganj in connection with G.R. Case No. 962/2003 arising out of Badarpur P.S. Case No. 188/2003 convicting the petitioner Nos. 1 & 2 and sentencing them to pay fine of Rs. 200/- each and in default of payment of fine, to undergo Simple Imprisonment (SI) for 15 (fifteen) days for the commission of offences under Sections 447/149 IPC and to pay another amount of fine of Rs. 300/- for the commission of offence under Section 143 IPC and in default of payment of said fine, to undergo SI for 30 days and to pay fine of Rs. 500/- and in default of payment of fine, to undergo SI for 60 (sixty) days for the commission of offences under Sections 427/149 IPC. Further, the challenge is against the judgment and order dated 12.06.2012 passed by the learned Sessions Judge, Karimganj in Criminal Appeal No. 8(3)/2011 upholding the judgment and order dated 13.06.2011 passed by the learned JMFC, Karimganj.

3. The prosecution story in nutshell is that on 01.11.2003, the complainant, namely, Abdul Wahid filed a complaint case before the Court of learned Chief Judicial Magistrate, Karimganj alleging inter-alia that he had a land dispute in respect of a road with the accused/petitioner No. 2 and one Abdul Sattar, which was subsequently settled. Thereafter, on 31.10.2003, out of grudge of the settlement of the dispute on compromise, the accused person at the instance of the aforesaid accused persons forming an unlawful assembly with deadly weapons like dao, axe, dagger etc. trespassed into the Southern side of the homestead of the complainant and they damaged the saplings of the betel-nut, sirish, banana, bamboos etc. The complainant also alleged that on raising alarm, when neighbouring people started to rush his house, the accused persons fled away. As a result, the complainant sustained loss of Rs. 5,000/-. After receipt of the said complaint case, the learned Chief Judicial Magistrate, Karimganj forwarded the case to the officer-in-charge, Badarpur Police Station and the same was registered as Badarpur P.S. Case No. 188/2003 under Sections 143/447/427/379/506IPC and accordingly, the case was investigated. Subsequently, on completion of the investigation, the concerned Investigating Officer submitted charge-sheet against the accused/petitioners under Sections 143/447/427 IPC. Thereafter, the accused/petitioners appeared before the learned Court below on receipt of summons and the charges under Sections 143/447/427 IPC were explained to them, which they pleaded not guilty and accordingly, the trial was proceeded. Thereafter, the learned JMFC, Karimganj by the judgment and order dated 13.06.2011 found the accused/petitioners guilty for the commission of offence under Sections 143/447/427/149 IPC except the petitioner No.3 and convicted & sentenced them as recorded herein above and the same was also affirmed by the learned Appellate Court vide the judgment and order dated 12.06.2012.

4. Being aggrieved, the present petition is filed.

5. Mr. Biswas, learned counsel for the petitioners, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission for grant benefit of probation to the accused/petitioners.

6. Mr. Biswas, learned counsel for the petitioners argues that the petitioners are entitled for the benefit under Sections 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) which had not been granted by both the learned Courts below. Mr. Biswas, learned counsel for t