JUDGMENT

Roy, J. - This reference has come up before us by an order of the Additional District Magistrate of Agra passed on 30-9-58. When it was laid before a learned single Judge of this Court he directed notice to issue to Ram Khilari Respondent to show cause why an appropriate sentence should not be passed upon him Ram Khilari is personally served and is represented by Mr. Sabd Saran who holds a pauper brief because Ram Khilari in response to the notice issued to him contended that he is not possessed of sufficient means to defend himself in this Court.

2. The facts giving rise to this reference are these. On 23-9-57, at about 1 A.M., certain thieves entered into the Kotha of Basti Ram, the complainant, by breaking open the roof of his house. When Basti Ram woke up, some of the miscreants escaped. Ram Khilari, the Respondent, was caught when he was coming out of the house and was trying to escape with silver ornaments worth Rs. 49/8/- and with a dhoti and a chadar worth Rs. 8/-. The matter was reported to the police and Ram Khilari was also handed over along with the articles aforesaid. The case came up before a learned Magistrate of the first class. The Magistrate chose to proceed with the trial in the manner of trial of a summary case as provided by Section 260 Code of Criminal Procedure. Ram Khilari pleaded guilty to the charge. He wished to be excused. The learned Magistrate found the accused guilty and applied Section 3 of the up First Offenders' Probation Act, No. VI of 1938 and instead of sentencing him to any punishment released him after due admonition.

3. In making the reference the learned Additional District Magistrate of Agra has said that Section 3 of the U.P. First Offenders' Probation Act does not apply to the case and the order of the learned trying Magistrate was therefore erroneous. Section 3 of the Act is in the following terms:

In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation, or cheating, punishable under IPC or of any offence punishable with not more than two years' imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed instead of sentencing him to any punishment, release him after due admonition.

4. The learned trying Magistrate in releasing the Respondent after due admonition, instead of sentencing him to any punishment, observed:

The accused is a young man of below 24 years. This is his first offence. I therefore deem it fit to deal with the accused under the provisions of the U.P. First Offenders' Probation Act. The accused is a very poor boy and is a resident of District Dholpur (Rajasthan) and he has not got even means to give sureties. I therefore release the accused after due admonition u/s 3 of the U.P. First Offenders' Probation Act. The accused is very much repentant.

5. The order quoted above makes it abundantly clear that the learned Magistrate did not consider the nature of the offence as trivial. In fact it was never so. When a number of persons commit lurking house-trespass by night or house-breaking by night in order to the committing of theft by breaking open the roof of the house of another and in the act of the committing of that offence one of them is apprehended with certain property belonging to the person whose house is broken open or trespassed upon by night, the offence is of a serious character. There can again be no doubt that an offence punishable u/s 457 IPC is triable summarily in view of the provisions Section 260(1)(i) Code of Criminal Procedure and if the offender is found guilty the limit of imprisonment which can be awarded to him would, in view of Section 262(2) Code of Criminal Procedure be imprisonment for a term not exceeding three months. It is