ORDER
1. The State has challenged the correctness and legality of the order dated 15-12-1990 passed by the learned Sessions Judge, Bellary in Cr. A. No. 107/1988.
2. The facts are that the respondent was prosecuted for offences under Sections 324 and 326, I.P.C. before the J.M.F.C., Siruguppa in C.C. No. 734/1987. The learned Magistrate convicted the respondent for the offence punishable under Section 324 and 326, I.P.C. and released him under bond for good behaviour under Section 4, of the Probation of offender Act, 1958, (for short the Act). The matter was taken in appeal before the learned Sessions Judge and the learned Sessions Judge upheld the order holding that the benefit of Section 4, of the Act was available to the respondent as the offence under Section 326, I.P.C. was not punishable with death or imprisonment for life. The learned Sessions Judge negatived the contention of the State to the contrary in adopting that view. Hence, the State has come in revision before this Court.
3. The respondent was found guilty of an offence punishable under Section 326, I.P.C. The punishment provided under Section 326, I.P.C. for causing grievous hurt is imprisonment for life or for imprisonment of either description for a term which may extend to 10 years and also fine.
4. Section 4 of the Probation of Offenders Act, 1958, reads as under :
“4. Power of Court to release certain offenders on probation of good conduct :
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behavior :
Provided that the Court shall not direct such release offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-section (3), shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to imose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The Court making a supervision order under sub-section (3), shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”
5. The plain reading of Section 4, shows that a person is found guilty of having committed an offence punishable with death or imprisonment for life is not eligible for the benefit under Section 4 of the Act for release under a bond with or without sureties for good behaviour for a period not exceeding three years. The learned Sessions Judge in upholding the benefit of Section 4, of the Act to the respondent found guilty of an offence punishable under Section 326, I.P.C. has opined that since. Section 326, I.P.C. is not punishable with death or imprisonment for life he is entitled to be released under bond for good behaviour under Section 4, of the Act. In so extending the benefit, the learned Sessions Judge had read the two punishments conjunctively i.e., an offence punishable with death and life imprisonment. The word ‘or’ appearing between death or life imprisonment has been read as practically ‘and’. That is not the correct interpretation placed by the learned Sessions Judge. The purport of Section 4, of the Act is to extend the benefit of release on bond for good conduct in cases where the person found guilty is not in respect of serious offences punishable with grave punishment such as the penalty of death or life imprisonment.
6. If the interpretation of the learned Sessions Judge is accepted then the offence punishable with death under Section 303, of I.P.C. would also entitle a person found guilty thereunder to be released under Section 4 of the Act under bond because the offence is not punishable with death or imprisonment for life. That cannot be the intention of the legislature. The view of majority of the High Courts is in favour of reading this clause offence punishable with death or imprisonment for life disjunctively and not conjuctively. this view is taken by Rajasthan High Court in Shivcharan Lal v. State , State of Himachal Pradesh v. Smt. Sheelan Devi 1986 Cri LJ 245, Madhya Pradesh High Court in Chetti v. State of Madhya Pradesh , and the said decision of Madhya Pradesh High Court refers to various decisions of other High Courts including the High Courts of Madras, Rangoon and Lahore. In view of the legal position stated above, it is found that the view taken by the learned Sessions Judge that a person found guilty of an offence punishable under Sec. 326, I.P.C. which is punishable with life imprisonment is entitled to benefit of Section 4, of the Act is incorrect and unsustainable.
7. In the case on hand, the respondent was alleged to have committed the offence on 30-7-1987. He was found guilty by the learned Magistrate by order dated 30-9-1988. The learned Sessions Judge by his judgment dated 15-12-1990 extended the benefit of Section 4, of the Act and the bond was taken for a period of two yeas from 3-10-1987. The bond period is also over long back. With the lapse of period of eight years from the date of commission of the offence it would be unfair to send back the matter for imposing sentence of substantive prison term against the respondent and having regard to all these circumstances with the observation that the view taken by the learned Sessions Judge is contrary to law and unsustainable, revision petition is disposed of.
8. Order accordingly.
