JUDGMENT

R. Chandra, J. - This revision has been filed by the State of U. P., against the following order passed by the Sessions Judge, Barabanki in Criminal Appeal No. 94 of 1964 :-

" ............................ the factum of the rape is proved beyond reasonable doubt. But having regard to the fact that the appellant is a first offender; his age is merely 20 years and he is the next door neighbour of the prosecutrix, it would he expedient to release him on probation of good conduct, otherwise the relations between the two neighbours may take the form of a long-standing feud. Therefore, having regard to the circumstances of the case and the age of the appellant, I feel that it is expedient to release him on probation of good conduct..................... I direct that he be released on his entering into a personal bond for Rs. 250.00, with two sureties, each in the like amount, to appeal- and receive sentence when called upon during a period of three years from today's date and in the meantime to keep the peace and he of good behaviour."

2. Wali Mohammad, opposite party, was tried for the offence under Section 376, Indian Penal Code, by the Assistant Sessions Judge and he found him guilty of the charge and convicted and sentenced him to four years' rigorous imprisonment. In appeal, against the said order, the Sessions Judge, Sarabanki, granted benefit to the appellant, under the First Offenders Probation Act. In the revision, the main contention was that the said order passed by the Sessions Judge was contrary to law. The revision came up for hearing before Nigam and Srivastava, JJ., and since the view on the subject was conflicting, they directed that the matter be referred to the Full Bench. The identical question involved in the present revision, came up for consideration before the Full Bench of this Court, consisting of Uniyal, Gupta and Kirty, JJ. It was held :

"The benefit of Section 4 of the Act cannot be extended to a person who had been found guilty of an offence for which the punishment of death or imprisonment for life could be legally inflicted on him.

3. Provisions of Section 4 of the U. P. First Offenders' Probation Act are not applicable to offences punishable with death or imprisonment for life. The test for the applicability of Section 4 is whether the offence with which the accused is charged is punishable with death or imprisonment for life. In such a case it is not a relevant consideration that the punishment imposed on the accused was not imprisonment for life but the alternative punishment prescribed under the law. Indeed, such a construction is ruled out by the phraseology of Section 4. It does not speak of the actual punishment inflicted on the accused person to whom the benefit of Section 4 may be extended. The true intendment of that section is that certain class of offences which are punishable with death or imprisonment for life shall be excluded from the operation of that section." See Bhoodev v. Jagdish Prasad, 1967 AWR 584.

4. Following his decision given by the Pencil, we allow the revision and set aside the order dated 22-7-1964, passed by the Sessions Judge, Barabanki, and maintain the conviction and sentence awarded to Wali Mohammad, opposite party under Section 376, Indian Penal Code, by the Assistant Sessions Judge, Barabanki under his order dated 29th May, 1964. Wali Mohammad is reported to be on bail. He shall surrender immediately to serve out the sentence. A. D. M. (J) , Barabanki shall issue non-bailable warrant for his arrest and remand him to jail custody for serving out the sentence. He shall report about the compliance of this order within one month.