The court can extend probation benefits to offenders above 21 years under the Probation of Offenders Act, 1958, emphasizing rehabilitation over punishment.

ORDER :

Ganesh Ram Meena, J.

The present criminal appeal has been preferred by the accused-appellant against the judgment of conviction and sentence dated 01.02.1994 passed by the Court of learned Additional District and Sessions Judge, Kishangarh (for short 'the trial Court') in Sessions Case No.15/1992, whereby, he has been convicted for the offence under Section 306 of IPC and sentenced to undergo four years Rigorous Imprisonment and fine of Rs. 500/- and in default of payment of fine, to undergo further three months additional Simple Imprisonment.

2. On filing of appeal, the sentence awarded to the accused-appellant was suspended vide order dated 07.02.1994 and he was released on bail.

3. Learned counsel appearing for the appellant instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellant under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act of 1958'). Counsel further submits that except the present case, no case has been registered against the accused-appellant. Counsel further submits that the accused-appellant is living peacefully in the society without there being any criminal antecedents to his discredit.

4. Learned counsel for the appellant further submits that the accused-appellant has faced trial for about 6 years and against the impugned judgment, he preferred an appeal in the year, 1994. Thus, from the last 35 years, the accused-appellant is facing mental agony and harassment because of pendency of criminal case registered against him. Counsel further submits that the maximum sentence under Section 306 of IPC is 10 years but in the present case, the appellant has been convicted for offence under Section 306 of IPC and he has been sentenced to undergo four years Rigorous Imprisonment. Thus, taking into consideration the aforesaid facts, the accused-appellant may be given the benefit of probation under the provisions of the Act of 1958.

5. Counsel for the appellant has also relied upon the judgment of this Court passed at Principal Seat, Jodhpur in case of Smt. Sumati v. State of Rajasthan, S.B. Criminal Appeal No.533/2003 decided on 23.11.2022 and also the judgment of High Court of Judicature at Allahabad, Lucknow Bench in case of Smt. Budana And Anr. v. State of U.P., Criminal Appeal No.108/2005 decided on 29.08.2023.

6. On the other hand, learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellant and submits that looking to the allegations and the manner in which the incident took place, the appellant is not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958.

7. Considered the submissions made by the learned counsel for the appellant as well as the learned Public Prosecutor.

8. Learned trial Court while considering the issue of grant of benefit of probation to the appellant, has rejected the prayer observing that the appellant is above 21 years of age, whereas, the benefit of probation can only be allowed to an accused who is below 21 years of age.

9. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct. Section 4 of the Act of 1958 reads as under:

"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