The central legal point established in the judgment is the entitlement of the accused-petitioner to the benefit under the Probation of Offenders Act, 1958, and the court's discretion in releasing the convicted person on probation of good conduct.

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. Learned counsel for the petitioner submits that the petitioner has removed his encroachment and on 09.07.2001, he had made an undertaking that he was prepared to surrender the possession of all the vacant land lying on the constructed portion in question. 3. Learned counsel for the petitioner further submits that in pursuance of his assurance to this Court on 09.07.2001, the petitioner has already acted upon and removed all his encroachment.

3. The matter pertains to an incident that occurred in the year 1994 and the present revision has been pending since 2001.

4. Vide impugned judgment dated 28.06.2001 the learned Additional Sessions Judge No.1, Jodhpur in Appeal Case No.5/1999 convicted the petitioner and affirmed the judgment dated 22.01.1999 for the offence under Section 91(6) of Land Revenue Act and sentenced him to undergo 1 year S.I. along with a fine of Rs.100/- default in payment of which he was to further undergo 7 days.

5. Learned counsel for the accused-petitioner submits that the accused petitioner do not have any criminal antecedents to his discredit.

6. Learned counsel for the accused petitioner further submits that the sentence awarded to the accused petitioner was suspended by this Hon'ble Court vide the order dated 09.07.2001 and thus, he is on bail.

7. Learned counsel for the accused-petitioner however, makes a limited prayer that the accused-appellant(s) 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: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)...

(4)...

(5)... '

8. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-petitioner is not entitled for any indulgence by this Court.

9. Heard learned counsel for the parties as well as perused the record of the case.

10. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon'ble Apex Court observed as under:-

'The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society.

In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of cri