The failure of the courts below to apply the provisions of the Probation of Offenders Act, 1958, and Section 361 of the Code of Criminal Procedure rendered the sentence imposed on the petitioner illegal.

R. C. PATNAIK, J.

( 1 ) THE substantial question that has been raised by Mr. G. N. Mohapatra, the learned counsel for the petitioner, is if the sentence of rigorous imprisonment for three months imposed on the petitioner, who stood trial for commission of an offence under S. 324 of the Indian Penal Code, is lethally infected due to the failure of the courts below to apply to the petitioner the provisions contained in the Probation of Offenders Act, 1958, which has come into force in this State, in some districts with effect from 1-12-1962 and rest with effect from 1-9-1966 and their unawareness of the mandate contained in S. 361 of the Cr. P. C.

( 2 ) THE incident was a simple one. On a village street the mother of the petitioner and the wife of one Srikar Bhoi entered into a quarrel over some differences among children. Srikar advised his wife to return home forthwith. It is allowed that the petitioner dealt blows on the legs of Srikar. There was an FIR and investigation by the police. At the trial on the charge-sheet witnesses were examined and the magistrate believed the prosecution version. The petitioner was convicted under S. 324 of the I. P. C. and was sentenced to undergo rigorous imprisonment for three months. The appeal was of no avail.

( 3 ) MR. Mohapatra initially though assailed the conviction, ultimately drew attention to the provisions contained in the Probation of Offenders Act and S. 361 of the Cr. P. C. and urged that the sentence was vitiated for non-compliance with the provisions contained in S. 361 of the Code. He even went to the extent of submitting that the courts below were innocent of the provisions contained in the Probation of Offenders Act and S. 361 of the Code. He submitted that where there has been much advance in the field of penology, in the attitude of the society, in the prescription of the law vis-a-vis an offender, the courts should not lag behind and administer justice under the criminal jurisdiction in a mechanical and heartless fashion.

( 4 ) THE concurrent holding of guilt by the courts below, which has not been shown to be erroneous or perverse, is not available to be assailed in revision. Hence the conviction is affirmed. Next comes the sentencing.

( 5 ) SENTENCING the guilty is the last and the most important, albeit a difficult chapter in a trial. It involves sensitive exercise of discretion and not a 'routine or mechanical prescription acting on hunch'. Theories of punishment are many : Reformative, preventive, deterrent, retributive and denunciatory. Retributive and denunciatory theories have lost their potency in the civilised nations. Deterrent and preventive punishment is sometimes necessary in the interest of society, regard being had to the nature of the offence, the well-being, security and preservation of society. The modern trend places emphasis on the reformation of an offender and his rehabilitation. It has been said by the Supreme Court that reformation and not retribution is the sentencing lodestar. No one is a born criminal. Circumstances, sometimes beyond his control, and social environments sometimes metamorphose an yesterday's innocent into today's offender. Not unoften a crime is committed on the spur, without premeditation, a scheme or planning, by a thoughtless act or due to uncontrollable influence. Given a chance many a person would reform and lead a new chapter, granted, congenial conditions for rehabilitation. Most offenders are first offenders. Many are youthful offenders. Association with and influence of hardened criminals in jail might make redemption impossible. A spell might destroy the personality irretrievably. What Sir Jeoffrey Streatfield has said would not be irrelevant here :"if you are going to have anything to do with the criminal Courts you should see for yourself the conditions under which prisoners serve their sentence".

( 6 ) ALL these were in the minds of the legislature when it enacted the Probation of Offenders Act, 1958, making co