( 1 ) THIS is a reference by the Sessions Judge of Ghazipur recommending that an order passed by a judicial Officer be set aside and that the opposite party be awarded such sentence as this Court may consider proper.

( 2 ) THERE is no controversy about the facts which are that the opposite party Sheo Shankar Lal misappropriated an amount of Rs. 15/5/11 in his capacity as Sajawal. He pleaded guilty to the charge under Section 409, I. P. C. , and also refunded the misappropriated amount. He has been convicted by the Judicial Officer under Section 409, I. P. C. , but on account of his being a young man of 18 years of age he has been released on probation under Section 4, U. P. First Offenders probation Act. The learned Sessions Judge, on being moved by the District Magistrate, has referred the case to this Court with the recommendation that the order passed by the learned Magistrate under section 4, U. P. First Offenders Probation Act be set aside and that the opposite party be sentenced under Section 409, I. P. C.

( 3 ) SECTION 4 (1), U. P. First Offenders Probation Act lays down that "when a person is convicted of an offence not punishable with death or transportation for life", he may be released on probation of good conduct in certain circumstances. The learned Magistrate interpreted the words "punishable with death or transportation for life" to mean "punishable with death or in the alternative with transportation for life". According to this interpretation a person convicted of an offence cannot be released on probation only if death and transportation for life are the two alternative punishments provided for it. In other words he can be released on probation if the offence is punishable with,-

1. death only or 2. transportation for life only or 3. death and any other punishment or

( 4 ) TRANSPORTATION for life and any other punishment or

( 5 ) DEATH and in the alternative any other punishment except transportation for life or

( 6 ) TRANSPORTATION for life and in the alternative any other punishment except death. Since the offence of Section 409, I. P. C. , is punishable with transportation for life or imprisonment and fine, the learned Magistrate thought that the opposite party could be released on probation, The interpretation placed by the learned Magistrate is erroneous. The plain meaning of the words "an offence not punishable with death or transportation for life" is "an offence not punishable with death or an offence not punishable with transportation for life". Death or transportation for life must not be a punishment that can be legally inflicted for the offence; if death can be inflicted or if transportation for life can be inflicted, it is not "an offence not punishable with death or transportation for life" regardless of whether any other punishment can be inflicted either in the alternative or in addition to the punishment of death or transportation for life, as the case may be. The word or does not mean that the two punishments are in the alternative; there is no justification whatsoever for interpreting the provision to mean that death and transportation for life must be the two alternative punishments provided for the offence in order to exclude it from the benefit of Section 4 of the Act. To do so one would have to add words in the Section which is beyond the courts jurisdiction. The intention of the legislature obviously is not to release on probation persons convicted of serious offences. There are several criteria for deciding which are serious offences and which, are not, but one of the criteria selected by the legislature for certain purposes is to treat as serious all offences for which a sentence of death can be passed or a sentence of transportation for life can be passed, whether as the sole punishment or as a punishment in addition to, or in lieu of, another punishment. The seriousness of an offence is to be judged from highest punishment that can be inflicted for it, and it is not at all de