Courts have the discretion to release an offender on probation if they find it expedient and in the interest of justice, considering the nature of the offense and the character of the offender.

M.L.Koul, J.

1. The petitioner, Sheo Raj Singh, whose conviction and sentence recorded by the trial Magistrate being confirmed by the learned Addl. Sessions Judge, Gurgaon, in appeal has preferred this revision petition, saying that both the trial court and the appellate court, have acted illegally in exercising their jurisdiction against the material available with them and sentenced the petitioner wrongly who was not given the benefit of probation under the Probation of Offenders Act, 1958 read with Section 360(1) of the Code of Criminal Procedure.

2. The petitioner stood convicted for an offence under Sections 304-A and 279 of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment of 18 months and three months respectively under the said provisions of the I.P.C. for having caused the death of one Hardwari on 18.1.1987 who was struck down by the petitioner with his motor cycle driven by him rashly and negligently.

At the time of admission of the petition, the learned counsel for the petitioner-revisionist admitted the conviction of the petitioner merits of the case but pressed it qua sentence particularly for claiming benefit of section 4 of the Probation of Offenders Act, 1958.

3. Heard learned counsel for the petitioner and Mr. Vimal, Advocate, on behalf of the State of Haryana.

4. The learned counsel for the petitioner vehemently argued that the petitioner prayed for the benefit of Section 4 of the Probation of Offenders Act, 1958 read with Section 360(1) of the Code of Criminal Procedure, both before the trial Magistrate and the appellate court, for releasing him on probation for the offence committed by him, was due to his negligence of driving his vehicle rashly rashly and negligently and hitting a man from behind who afterwards succumbed to the injuries sustained by him in the accident. He had no intention to kill the deceased nor there was any previous record available showing that the petitioner is a previous convict and his antecedents were that of an offender and was therefore not entitled to the benefit of Section 4 of the Probation of Offenders Act, to maintain good conduct.

5. In such a situation the court within the concept of law for the time being instead of sentencing him at once to any punishment should have directed him to be released on his entering into a bond with or without surety to appear and receive sentence as and when called upon during such period not exceeding three years, as directed by the court.

6. On perusal of the judgment, it is found that both the courts have neither recorded any specific finding on the matter nor have considered the plea of the petitioner that he was holding a good conduct but for the accident he got convicted. There was no record available with the trial court showing that he was previously convicted in any criminal case or was a previous convict or some other case was pending against him, as a result of which he was not entitled to the said benefit. I have gone through the provisions of section 4 of the Probation of Offenders Act, 1958 which is different in language and purport than Section 360(1) of the Code of Criminal Procedure. Under Section 360(1) this benefit could be given only to a person convicted of an offence punishable with fine only or with imprisonment for a term of 7 years or less, who is under twenty-one year of age. In case of a woman this benefit could be given if she is convicted of an offence not punishable with death or imprisonment for life. But there is a change in the terminology of Section 4 of the Probation of Offenders Act, whereby this benefit is available to any person who is guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty in the circumstances of the case including the nature of the offence and the character of the offender is of the opinion and feels it expedient that the offender shall be released on probation of good con