The court's power to release an accused person on probation is discretionary and depends on the circumstances of the case, including the age, character, and antecedents of the offender, the nature of the offense, and the likelihood of rehabilitation.

1. Harnam Singh was convicted under Section 61 (1) (c) of the Punjab Excise Act by the trial Magistrate and sentenced to one years rigorous imprisonment and a fine of Rs. 2000.00 , in default to further undergo rigorous imprisonment for six months. Appeal filed by him was dismissed by the learned Sessions Judge, Ferozepore in toto. Feeling aggrived he has preferred this revision petition.

2. The conviction of Harnam Singh based on concurrent finding of the two Courts below that he was caught distilling illicit liquor in the kitchen of his house in village Matter Uttar, is unassailable. His learned counsel then urged that Section 360 of the Code of Criminal Procedure, 1973 provides for the release on probation of good conduct of a person, who is not under twenty-one years of age, when the offence is punishable with imprisonment for a term of seven years or less. For the commission of offence in question maximum punishment provided by the Punjab Excise Act is three years rigorous imprisonment and a fine of Rupees 2000.00 . Hence, the Court could have dealt with the case under Sec. 360 of the Code.

3. Reliance was next placed on the provisions of Section 361 of the Code, laying down:-

"Where in any case the Court could have dealt with,- (a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or

(b) a youthful offender under the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so."

4. It deserves mention here that sub-section (4) of Section 360 of the Code empowers the appellate Court and the High Court in the exercise of the revisional jurisdiction, to deal with a case falling within the purview of Section 360 of the Code. Learned counsel pointed out that neither the trial Court nor did the lower appellate Court comply with the mandatory provisions of Section 361 of the Code inasmuch as no reasons, much less special, were given for not releasing Harnam Singh accused on probation. Doubtless, it is so. But since this Court in the exercise of its powers of revision can deal with the relief claimed, therefore, no useful purpose would be served by remanding the case to the lower appellate Court for complying with the provisions of Section 361 of the Code. Now the question is, should the benefit of the provisions of Section 360 of the Code or of the Probation of Offenders Act be given to the accused. For so doing the Court is required to take into account the age, character or antecedents of the offender, the circumstances in which the offence was committed, the nature thereof and then to form an opinion if it is expedient that the offender be released on probation of good conduct.

5. The age of Harnam Singh accused is fifty-five years. Very often, as in the present case, it is urged that there is nothing on record against his character or antecedents. It is so, not because Harnam Singh is unquestionably of good character but because of the legal aspect discussed hereinafter. The onus is on the prosecution to prove the charge against an accused person. That having been discharged, I am of the considered view that if an accused is desirous of having the benefit of release on probation, he has to bring the relevant material favourable to him on record. Section 53 of the Evidence Act enacts:-

"In Criminal proceedings the fact that the accused is of good character is relevant."

In the nature of things it would have been beneficial for Harnam Singh to give evidence of good character, but he completely failed to do so.

6 As regards the prosecution, Section 54 of the Evidence Act provides:-

"In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

Explanation 1:-

This section does no