ORDER :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Revision petition has been preferred under Section 397 with Section 360 Cr.P.C. praying for the following reliefs:-

“It is, therefore, most humbly and respectfully prayed that the revision petition may kindly be allowed and the impugned judgments dated 27.05.199 passed in criminal regular case no.613/91 by the learned trial court as well as the impugned judgment dated 27.04.2001 passed by the learned Additional Sessions Judge, Banswara in criminal appeal no.5/99 may kindly be quashed and set aside and the petitioners may be acquitted from the charges of offence under Section 147 IPC and offences under Section 326 IPC and 326 read with Section 149 IPC respectively. It is also prayed that in alternate the petitioners may kindly be given the benefit of probation under Section 360 of Cr.P.C.””

3. Vide impugned judgment dated 27.05.1999 the learned Civil Judge & Additional Chief Judicial Magistrate, Kushalgarh in Criminal Regular Case No.613/91 convicted revision-petitioners for the offences under Sections 147, 326 & 326/149 IPC and sentenced them to undergo as under:-

(i) Diya was convicted under Sections 147 & 326 IPC and was sentenced to undergo 15 days’ S.I. & 02 years S.I. respectively and a fine of Rs.200/-in default of payment of which he was further ordered to undergo 15 days’ S.I.

(ii) Rest of the petitioners were convicted under Sections 147 & 326/149 IPC and were sentenced to undergo 15 days S.I. & 02 years S.I. respectively and a fine of Rs.200/-in default of payment of which they were further ordered to undergo 15 days’ S.I.

4. Learned counsel for the revisionist-petitioners submits that the offence under Section 147, 326 & 326/149 IPC, as per the Indian Penal Code, are punishable with a maximum imprisonment up to 02 years & 10 years respectively, therefore, the petitioners may be granted benefit of Section 4 of the Probation of Offenders Act, 1958.

5. Counsel for the petitioner submits that the alleged incident occurred at the spur of moment and, therefore, there is a lack of intention or planning on the part of the accused, and there is lack of common object.

6. Learned counsel for the revisionist-petitioners submits that the petitioners do not have any criminal antecedents to their credit.

7. Learned counsel for the revisionist-petitioners further submits that the sentence awarded to Mukesh, Manji, Aalu, Huka was suspended by this Hon’ble Court vide order dated 07.06.2001, passed in S.B. Criminal Misc. Bail Application No.57/2001 and sentence awarded to Diya, Hakji Maniya was suspended by this Hon’ble Court vide order 21.05.2001 in S.B. Criminal Misc. Bail Application No.45/2001 and, thus, they are on bail.

8. Learned counsel for the revisionist-petitioners however, makes a limited prayer that the petitioners may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

“4. Power of court to release certain offenders on probation of good conduct.—

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Pro