ORDER

M.H. Beg, J. - The Applicant was an Assistant Supervisor (Hydel), Sub Division Kakore in the district of Bulandshahr and was alleged to have demanded a bribe of Rs. 200/-. He was convicted on evidence including that of a trap and sentenced to two years' RI u/s 161 IPC and four years' RI u/s 5(1)

(d) read with Sub-section (2) of the Prevention of Corruption Act. The Applicant was also sentenced to pay a fine. On an appeal, this Court, after the examination of the whole evidence, affirmed the Applicant's convictions, but his sentence u/s 5(1)(d)(2) was reduced from four years' RI to three years' RI. The sentences were made concurrent.

2. The Applicant has now applied practically for a review u/s 561-A Code of Criminal Procedure. He states that he is a young man of 28 years, who has lost his job as a result of his conviction and that he is the bread winner of his family consisting of his wife and children. It is also stated in the application that he is a first offender against whom there is no previous conviction. It is prayed that action may now be taken against him under the UP First Offenders (Probation) Act, 1938, (hereinafter referred to as 'the Act') and that an order under it may be substituted for the sentence of imprisonment.

3. Mr. R.S. Dhavan, appearing for the Applicant, contends that this is not an application for review of the judgment and order of this Court because the Applicant, after accepting the correctness of his conviction and sentence, relies upon certain new facts now placed before this Court for the first time for action u/s 4 of the Act. The question, therefore, has arisen whether this Court has power in such cases to act u/s 551-A Code of Criminal Procedure. No authority could be cited by either side on this question inspite of several opportunities having been given to produce some authority. I, therefore, consider it necessary to deal with this question as if it has arisen for the first time in this Court.

4. It is clear to me that the recording of a conviction on a charge is not the only part of the judgment of conviction by a court. The law provides, whenever an offence is created, a definition of the offence and after that, the sentence to be imposed. Section 245(2) Code of Criminal Procedure lays down the mandatory duty of a Court to pass sentence upon an accused found guilty in a summons case trial. Section 258(2) Code of Criminal Procedure casts a similar mandatory duty on a court in the event of a conviction of an accused in a warrant-case trial. The corresponding provision for trials in High Courts and Courts of Sessions is Section 306 Code of Criminal Procedure. All these provisions contain a qualification or provision showing that the question of action u/s 562 Code of Criminal Procedure, in cases of first offenders, can only arise before the sentence is passed and the appropriate sentence is one of the essential points for determination which must, according to Section 367 Code of Criminal Procedure, be contained in the judgment. In Section 423 Code of Criminal Procedure, the power of the appellate court to interfere not merely with a finding of conviction but also with the sentence is specially mentioned It follows that an alteration in the sentence actually awarded can only take place by a prescribed procedure and that it amounts to a review of judgment.

5. To hold that no alteration in the sentence is sought when it is prayed that it may be substituted after a conviction and a sentence of imprisonment imposed by action u/s 4 of the Act will be sophistry. There is no question of conversion of a sentence into action u/s 4 of the Act. Sentencing to imprisonment and release on probation are entirely different kinds of action. Action u/s 4 of the Act may be taken, in suitable cases, instead of sentencing. But, once a sentence has been imposed, it has to be set aside before any action u/s 4 of the Act can be substituted for it. In other words, a clear review of the order imposing a sentence i