M. C. TRIVEDI, J. ( 1 ) (HIS Lordship after narrating the facts of the case held that it was proved that the accused had repeatedly told the girl that he would perform civil marriage with her. It was proved that whatever she did was done by her on the said promise made by the accused. Therefore it cannot be said that it was the girl who was responsible for taking away the accused or for going with the accused. It wash therefore held that it was the accused who took away the girl from the legal custody of her father. His Lordship further observed.) ( 2 ) IT has also been argued by Mr. Majmudar that even if the accused is held guilty of the offence under sec. 363 of the Indian Penal Code the order of sentence of imprisonment passed upon him is illegal in view of the provisions of sec. 6 of the Probation of Offenders Act 1958 (hereinafter referred to as the Act ). In the trial Court it was argued on behalf of the accused that he should be dealt with under sec. 4 of the Act. The learned trial Judge after discussing the nature of the offence and the character of the offender came to a conclusion that it was not expedient to release him under sec. 4 of the Act. After recording his reasons for not dealing with him under sec. 4 of the Act he sentenced him to imprisonment for a period of 3 years. Argument of Mr. Majmudar is that before satisfying himself as to whether it would not be desirable to deal with the accused under sec. 4 of the Act it was incumbent on the Judge to call for a report from the probation officer and consider the report. According to him it is only after calling for such report and after considering the same that he can come to a conclusion that it is not desirable to deal with the accused under sec. 4 of the Act. According to him as he failed to do so the order of imprisonment passed on the accused as illegal and deserves to be set aside. ( 3 ) THE Act was brought into force in the districts of Ahmedabad Baroda Panchmahals Rajkot and Junagadh by virtue of Government Notification dated the 16th July 1972. 4 of the Act. According to him as he failed to do so the order of imprisonment passed on the accused as illegal and deserves to be set aside. ( 3 ) THE Act was brought into force in the districts of Ahmedabad Baroda Panchmahals Rajkot and Junagadh by virtue of Government Notification dated the 16th July 1972. It was brought into force in the whole of the State of Gujarat on 5-9-73 by the notification dated 4th September 1973 ( 4 ) SEC. 6 (1) of the Act reads :- when any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life) the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under sec. 3 or see. 4 and if the Court passes any sentence of imprisonment on the offender it shall record its reasons for doing so. Sub-sec. (2) of sec. 6 of the Act reads:- For the purpose of satisfying itself whether it would not be desirable to deal under sec. 3 or sec. 4 with an offender referred to in sub-sec. (1) the court shall call for a report from the probation officer and consider the report if any and any other information available to it relating to the character and physical and mental condition of the offender. Admittedly the accused was aged below 21 years when he was sentenced by the learned trial Judge. Admittedly he is convicted of an offence punishable with imprisonment (but not with imprisonment for life ). He was eligible for being dealt with under sec. 4 of the Act. However it appears that having regard to the circumstances including the nature of the offence and the character of the offender the learned trial Judge found that it was not expedient to release him on probation of good conduct and therefore he after recording his reasons sentenced him to imprisonment for 3 years. 4 of the Act. However it appears that having regard to the circumstances including the nature of the offence and the character of the offender the learned trial Judge found that it was not expedient to release him on probation of good conduct and therefore he after recording his reasons sentenced him to imprisonment for 3 years. Sec. 6 (1) of the Act prevents the Court from sentencing such a person to imprisonment unless it is satisfied that having regard to the circumstance of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under sec. 4 of the Act. Sub-sec. (2) of sec. 6 of the Act provides that for the purpose of satisfying itself whether it would not be desirable to deal under sec. 3 or 4 with an offender referred to in subsec. (1) the Court shall call for a report from the probation officer and consider the report if any and any other information available to it relating to the character and physical and mental condition of the offender. In the instant case admittedly the learned trial Judge did not comply with the provision of sub-sec. 2 of sec. 6 of the Act. ( 5 ) IN Ratanlal v. State of Punjab A. I. R. 1965 S. C. 444-the question was as regards the exercise of power under sec. 11 of the Act. There it was held A Court cannot impose a sentence of imprisonment on a person under 21 years of age found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under sec. 3 or 4 of the Act. For the purpose of satisfying itself in regard to the said action under sub-sec (2) of sec. 6 of the Act the Court shall call for a report from the probation officer and consider the report if any and any other information available to it relating to the character and physical and mental condition of the offender. After considering the said material the Court shall satisfy itself whether it is desirable to deal with the offender under sec. 3 or sec. After considering the said material the Court shall satisfy itself whether it is desirable to deal with the offender under sec. 3 or sec. 4 of the Act. If it is not satisfied that the tender should be dealt with under either of the said two sections it can pass the sentence of imprisonment on the offender after recording the reasons for doing so It is suggested that the expression if any in sub-sec. (2) of sec. 6 indicates that it is open to the Court to call for a report or not; but the word shall makes it a mandatory condition and the expression if any can in the context only cover a case where notwithstanding such requisition the Probation Officer for one reason or other has not submitted a report. Briefly stated the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under sec. 6 (1) of the Act by the Court. In view of the above decision of the Supreme Court there remains no doubt that compliance of provision of sec. 6 (2) is mandatory before the Court records its ending about the satisfaction or otherwise that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under sec. 4 of the Act. In the instant case the learned trial Judge did not comply with the requirement of sec. 6 (2) of the Act. It amounts to failure to comply with a mandatory provision of 13w and therefore the order passing the sentence of imprisonment on the accused is held to be illegal. [rest of the judgment not material for report. ] Appeal partly allowed. Matter remanded. .