TYAGI, J.—Ganesharam has filed this application under sec. 561-A Criminal Procedure Code and it arises out of the following circumstances:

Ganesharam petitioner, who was prosecuted in the court of the Additional Munsif-Magistrate, Bikaner for an offence under sec. 325 Indian Penal Code, was acquitted by the learned Magistrate vide his judgment dated 28th March, 1966. An appeal was preferred by the State against the said judgment and this Court vide its judgment dated 12th January, 1968, set aside the acquittal and convicted the petitioner under sec 325 Indian Penal Code and awarded him rigorous imprisonment for one year. Then an application under sec. 561A Criminal Procedure Code was moved on behalf of the petitioner praying that the order of conviction passed by this Court be set aside and his counsel who could not attend the Court on the day when the appeal was decided be allowed to argue the appeal. By another application dated 12tb February, 1968, it was further prayed that in the exercise of its inherent jurisdiction the Court may extend the benefit of sec. 6(1) of the Probation of Offenders Act (hereinafter called the Act) to the petitioner who was below 21 years of age when the judgment of the trial court was pronounced.

2. Mrs. Chatterji who represents the petitioner did not press the first application for setting aside the conviction, but she strenuously argued that it was the duty of the learned Deputy Government Advocate, who appeared on behalf of the State when the appeal was heard and decided ex parte by this Court, to have brought this fact to the notice of the Court that the petitioner was below 21 years of age and that he was entitled to the benefit of the provisions of sec. 6 of the Act. If this fact had not escaped the notice of the Court at the time of the hearing of the appeal, then, according to Mrs. Chattterji, the Court had no alternative but to order for the release of the accused under the provisions of secs.3 and 4 of the Act. It was further argued that this Court by sending the petitioner to jail has passed an order which was not within the competence of the Court as the provisions of sec. 6(1) of the Act are mandatory in nature and the Court was bound to comply with the requirements of those provisions.

3. Learned Deputy Government Advocate has vehemently opposed this application. His argument is that the jurisdiction under sec 561-A Criminal Procedure Code is not available to the petitioner because he himself was guilty of not appearing before the Court to point out that he was entitled to the benefit of sec. 6(1) of the Act. It was also contended that on the date when he was ordered to be sent to jail he had crossed the age of 21 and therefore the provisions of sec. 6(1) of the Act were not attracted to his case.

4. The question about the scope of the jurisdiction of this Court under sec. 561-A Criminal Procedure Code came before the full Bench of the Allahabad High Court in Raj Narain vs. The State(l). The point to be discussed in that case was whether the High Court has a power to revoke, review, recall or alter its own earlier decision passed in the exercise of its revisional jurisdiction and rehear the same. The majority (with Mootham C. J. differing) held that an inherent power implies by its very nature a power cannot be expressed in terms but which must reside in a Court for achieving the higher and the main purpose of a Court, namely, the purpose of doing justice in a case before it and for seeing that the act of the Court does no injury to any of the suitors. The learned Judges were of the opinion that the circumstances requiring the use of such a power cannot be foreseen. The Legislature according to them, enacts provisions to meet such circumstances which can be foreseen, and once provision has been made in the statute about a certain circumstance the occasion to invoke inherent power in that circumstance practically vanishes. An occasion to invoke the inherent power will not then arise for

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