Diwanun and Mohd Sharif the two accused persons were convicted under Section 457 Ranbir Penal Code and sentenced to 1½ years rigorous imprisonment and Rs. 50 fine or in default each of them to undergo a further term of three months rigorous imprisonment. On appeal the learned Additional Sessions Judge upheld the conviction and reduced the sentence of Sharif to six months rigorous imprisonment with a fine of Rs. 20 or in default to undergo an imprisonment for a further period of two months. The accused have come up in second appeal to this court. The facts are fully detailed in the judgment of the lower appellate court and it is hardly necessary to repeat them again. The learned counsel for the appellants did not advance any argument on behalf of Diwanun accused. He has frankly admitted that both the accused are properly convicted but urged on behalf of Mohd Sharif accused that the lower appellate court had reduced his sentence to six months on the ground that he is a young man of 20 years of age and secondly that his case was very similar to that of Khurshid Alam who was given the benefit of section 562 of the Criminal Procedure Code and thus leniently treated by the trial magistrate. The counsel prayed that his sentence should be further reduced. The learned advocate on the other hand has urged that Mohd Sharif accused did not deserve the leniency which had been extended to him by the lower appellate court. Section 562 Criminal Procedure Code runs as follows: -

"(1) When any person not under twenty-one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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."

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In order to give the benefit under this section to the accused there must not be any previous convictions i. e. (1) the accused must be a first offender and (2) the offence for which he is convicted must be one of those offences specified in the section. If these conditions are fulfilled the court has jurisdiction to act under this section in the exercise of its discretion, but in exercising its discretion the court must have regard to the points specified in the section i. e. the youth, character and antecedents of the offender to the trivial nature of the offence and to any extenuating circumstances under which the offence was committed. The accused appellants have been convicted under section 457 Ranbir Penal Code and the sentence prescribed under the said section is five years but if the accused had intention of committing theft the sentence is 14 years. It has been proved beyond doubt that the accused broke into the house with the object of committing theft and they actually were caught with some stolen property in their possession. So it is clear that the appellants were guilty of an offence under section 457 Ranbir Penal Code for which they could have been sentenced to 14 years rigorous imprisonment. Section 562 Criminal Procedure Code clearly lays down that a person under 21 years of age who is convicted of an offence punishable with transportation for life is not entitled to the benefit of that section. Therefore in my opinion the lower appellate court has not rightly exercised its discretion in giving the

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