The Court has the discretion to modify a sentence based on the circumstances of the case, including the period of custody already undergone by the offender.

Wangdi,J

This Revision Petition has been preferred against the impugned judgment dated 28.09.2012 passed by the learned Sessions Judge, Special Division – II, East Sikkim at Gangtok in Criminal Appeal No.3 of 2012, upholding the conviction of the Appellant for offences under section 420, 468, 471 read with section 465 of Indian Penal Code, 1860 (for short “IPC”) in Vigilance Case No.1 of 2004 by the learned Judicial Magistrate, East and North Sikkim at Gangtok by his judgment dated 18.11.2005 and sentencing him to SI of two years for offence under section 420 IPC and a fine of Rs.500/-, SI for two years for offence under section 468 and to pay a fine of Rs.500/-and in default of payment of fine to undergo SI for a further period of two months and SI for one year under Section 471 read with Section 465 IPC., and the sentences were to run concurrently.

2. When the matter was taken up for arguments on 06.06.2013, Mr. N. Rai, learned Senior Advocate appearing on behalf of the Revisionist/Petitioner submitted at the very outset that he shall be confining his arguments only on the question of sentence in the light of the decision in Bhousaheb Kalu Patil vs. State of Maharashtra : AIR 1981 SC 80 and press for bringing the Petitioner’s case under Section 4 read with section 6 of the Probation of Offenders Act, 1958. Upon this, Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor sought for a day’s time to consider the stand to be taken on behalf of the State. The matter was accordingly adjourned for today.

3. Upon resumption of the arguments, the learned Additional Public Prosecutor strongly objected to the prayer made on behalf of the Revisionist/Petitioner for being brought within the purview of the Probation of Offenders Act, 1958, in view of the seriousness of the offence and the inordinate delay in seeking such relief. Reference was made by him to a number of decisions after which one was of this Court in State of Sikkim vs. Dorjee Sherpa : 1998 CrlLJ 2685, followed by Yaduraj Singh & Ors. vs. State of U.P. : 1977 SC 698 and Sharvan Kumar vs. State of U.P. (1985) 3 SCC 658.

4. As per Mr. Rai, the primary reason for the Petitioner in seeking such relief is because of the mental agony which the Revisionist/Petitioner had undergone during the course of the trial, his advancing age which is said to be more than 55 years and other related factors. It is also submitted that conviction of the offence was an extraordinary aberration in the life of the Revisionist/Petitioner for which he has suffered immensely in terms of mental trauma, social stigma and suspension from service for all these years and that he has already undergone custody of 4 months and 17 days.

5. Heard the learned Counsel for the parties.

6. This is a case wherein the Revisionist/Petitioner does not question the merit of the conviction but only seeks relief as regards the sentence. The decisions referred to by the learned Additional Public Prosecutor deal with situations where the Courts have refused to exercise its discretion on the facts and circumstances obtaining in those cases. Those do not lay down the ratio that only because a person approaches the Court late he would be denied the relief of being considered under the Probation of Offenders Act, 1958. In any case, in the case of Sharvan Kumar (supra) the Hon’ble Supreme Court refused to exercise its discretion in view of the seriousness of the offence, the offence being one under section 467 read with section 471 IPC. We may for the sake of convenience, refer to the following observations in that case: -

“4. We have heard learned counsel for the parties on this appeal, and we are satisfied that the High court is right in maintaining the conviction of the appellant. We are also satisfied that this is not a case where the benefit of Section 360 of the Code of Criminal Procedure should be extended to the appellant. The offence is a serious one and we do not think that the appellant should be entitl