M.B. SHARMA, J.—Learned counsel for the petitioner has challenged the conviction of the accused petitioner under Sec. 379 IPC and sentence for six months rigorous imprisonment. The said conviction and sentence was recorded by the learned trial court under his judgment dated August 5, 1985 and which has been affirmed by the learned Addl. Sessions Judge No. 2, Ajmer under his judgment dated June 20, 1986. The ground on which the said conviction has been recorded is that there is delay in lodging the F.I.R. of about 4 to 5 days which has not been explained and that the property which is said to have been recovered at the instance of the accused-petitioner was not put for identification during the investigation; there is no material on record how the complainant could know that the accused-petitioner has committed theft. It is his first offence and as such the accused petitioner was entitled to the benefit of the provisions of Sec. 360 Cr.P.C. or Sec. 4 of the Probation of Offenders Act, 1958 (for short, the Act). It is one of the mandate of the provisions contained in Sec. 361 Cr.P.C. that in a case where the accused is entitled to get the benefit of the provisions of Sec. 360 Cr.P.C.

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