The court's power to release offenders on probation under Section 4(1) of the Probation of Offenders Act, 1958 is subject to the mandatory requirement of obtaining a report from the probation officer under Section 4(2) of the Act. The circumstances of the case, including the nature of the offense and the character of the offender, must also be considered before releasing an offender on probation.

ORDER

Late Uchhaba and Udayanath are brothers. Udayanath has two sons Nityananda (Opp. party No. 1) and Gouranga (P.W. 1). Gouranga is the adopted son of Uchhaba. Pari Dei (P.W. 2) is the wife of Udayanath. Ichhamani (Opp. party No. 2) is the wife of Nityananda. Pitei (Opp. Party No. 3) is the mother of Ichhamani. Prosecution case is that on 11th of December, 1969 there was a quarrel between Nityananda and P.W. 2 over the removal of some bricks by Nityananda. In course of the quarrel Nityananda assaulted his mother P.W. 2. P.W. 1 told Udayanath left had and the other on the head. P.W. 2 in his presence. Nityananda came out from his house with a bamboo lathi and dealt two blows on P.W. 1 one on his left hand and the other on the head. P.W. 1 fell down on the ground. P.W. 8 intervened. Then Petei caught hold of P.W. 2 while Ichhamani dealt a blow on P.W. 2 by means of a spade. After medical examination P.W. 1 lodged information at Jagatsingpur police Station on 12-12-1969 at about 11.30 a.m. The opposite parties denied their connection with the occurrence. Their defence is that P.W. 1 quarrelled with Udayanath and while he was rushing towards Udayanath to assault him P.W. 1 stumbled and fell down on stone rings and got himself injured. They pleaded ignorance of the injuries on P.W. 2.

2. The learned Magistrate accepted the prosecution story and found Nityananda guilty under Sections 325 and 323 I.P.C. and sentenced him to undergo R.I. for one month and to pay a fine of Rs. 250/- on each count; in default to undergo R.I. for further two months. The sentences were directed to run consecutively. Ichhamani was convicted under Sections 323 I.P.C. and Pitei under Section 341 I.P.C. Both of them being females were released after due admonition under Section 3 of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act).

All the three accused carried an appeal before the Sessions Judge Cuttack, which was ultimately heard by the learned Additional Sessions Judge. The learned Judge held that the fracture of the left hand of P.W. 1 had not been proved beyond reasonable doubt by the prosecution. He accordingly set aside the conviction of opposite party No. 1 under Section 325 I.P.C. but upheld his conviction under Section 325 I.P.C. He affirmed the conviction of Ichhamani and Pitei under Section 323 and 341 I.P.C. respectively. He did not interfere with the order of the learned S.D.M. releasing both of them under Section 3 of the Act. So far as Nityananda is concerned, he held that the parties are very close relations and that the act of assault was perpetrated without any pre-meditation. Accordingly he released Nityananda under Section 4(1) of the Act on his executing a bond for a period of one year for Rs. 1,000/- with one surety for the like amount and he was directed to be placed under the supervision of of the District Probation Officer, Cuttack.

Though the appeal was allowed in part as the conviction under Section 325 I.P.C. was set aside the learned Addl. Sessions Judge wrote that the appeal was dismissed with the modification in the sentence.

3. Opposite parties have not come up in revision challenging the conviction. In this revision Mr. Mohanty also does not challenge the validity of the conviction. Thus the conviction of all the three opposite parties under the different sections as found by the learned Judge stands.

4. As both the courts below have released Ichhamani and Pitei under Section 3 of the Act I do not propose to examine the correctness of that decision.

5. The only question for consideration is whether Nityananda should be released on probation under Section 4(1) of the Act. It is to be noted that P.W. 1 was the informant and the State was conducting the prosecution. The State has not filed by P.W. 1. A question was accordingly raised whether the criminal revision at the instance of the informant is competent. The question is, however, academic inasmuch as the fact having been brought to the noti