R. K. SHUKIA, J. ( 1 ) THIS appeal has been filed on behalf of State of U. P. under section 377 of the Cr P. C. , against the judgment and order dated 29. 7. 1976 passed by the Judicial Magistrate I Class, Khurja whereby he has convicted the opposite party Deo Datta Sharma under section 409 I. P. C. and sentenced him to undergo R. I. for three months. But the opposite party was not sentenced and instead, he was released under section 4 of the U. P. First Offender Act on a probation of good conduct for a year after furnishing a personal bond and two sureties of Rs. 1500/- each within 10 days from the date of judgment. During this period, the accused was ordered to remain under the supervision of District Probation Officer. It was further ordered that in case the accused is found guilty of any offence then he can be called to undergo the above sentence. ( 2 ) THE brief fact of the prosecution story is that Deo Datta Sharma was posted as Kurk Amin by the order of the District Magistrate, Bulandshahr in the Co-operative Department and his area was Block Development Officer, Pahasu. He recovered a sum of Rs. 979. 22 ps. from different persons by receipt nos. 1/135 to 15/135 within the period from 19. 8. 1971 to 27. 10. 1971. He did not deposit the said amount and, therefore, explanation was called for. In reply to the explanation, the accused Deo Datta Sharma admitted the recovery of the above amount and prayed for 15 days time to deposit the same. But he failed to deposit the said amount. Thereupon, Mohan Lal Sharma, Incharge Kurk Amin sent written report to 5 0. Khurja on 10. 3. 1972 and a copy to S. P. Bulandshahr. A case was registered and after investigation, charge sheet (Ex. Ka33) was submitted against the accused. ( 3 ) THE accused pleaded not guilty and claimed to be tried. In his statement u/s. 313-Cr. PC. , Deo Datta Sharma accused has admitted the different recoveries made by him and deposed that he fell ill after recovery of the amount and was not able to move and he deposited the whole of the amount when he recovered from illness. He has deposited the receipt of deposit of the said amount. One receipt is dated 28. 4. , Deo Datta Sharma accused has admitted the different recoveries made by him and deposed that he fell ill after recovery of the amount and was not able to move and he deposited the whole of the amount when he recovered from illness. He has deposited the receipt of deposit of the said amount. One receipt is dated 28. 4. 1972 by which an amount of Rs. 690/- was deposited and another receipt was dated 15. 1. 1973 by which Rs. 289. 22 was deposited. At the time of defence, the accused has confessed the guilt and has prayed that his case be considered sympathetically because he has not misappropriated the amount with any bad intention and he is very poor man, suspended from the office having worst economic position. ( 4 ) THE prosecution has examined four witnesses. Mohan Lal Sharma, P W. 1 deposed that he was posted as in-charge Kurk Amins during the period from 1960 to August 1972 and his duty was to check the work of Co-operative Kurk Amins and to instruct these Amins about the instructions of the Department by calling a monthly meeting of Kurk Amins. According to him, he used to check the amount of each Kurk Amin and used to instruct the Amins, to deposit the amount within prescribed period. He has further stated that accused Deo Datta Sharma was working under him as Kurk Amin and he (the accused) never attended any meeting nor rendered his account for checking for which a notice dated 29. 11. 1971 was served on him. By this notice (Ex. Ka 1), the accused was asked to submit the account for checking. This was duly received by accused and receipt of the above notice by the accused is Ex. Ka 2. The reply of the accused is Ex. Ka 3 in which he has stated that he fell ill and failed to deposit the amount and now he will deposit the whole amount at once and account would be submitted for checking. Ex. Ka 4 is copy of another notice issued by Mohan Lal Sharma, P. W. 1 on 8. 12. 1971 calling for the explanation for not depositing the amount. Ex. Ex. Ka 4 is copy of another notice issued by Mohan Lal Sharma, P. W. 1 on 8. 12. 1971 calling for the explanation for not depositing the amount. Ex. Ka 5 is the reply of the accused in which he has requested for 15 days time to deposit the amount and has given the explanation for not depositing the amount as he fell ill. Mohan Lal Sharma, P. W. 1 bas proved his report, Ex. Ka 6, and has proved receipts and its counter foils Ex. Ka 7 to Ex. Ka 42 in which Ex. Ka 7 to Ex. Ka 21 are duplicate receipts and these receipts Ex. Ka 7 to Ex Ka 42 have been written by the accused. P. W. 4 Surendra Singh Yadav is Superintendent Collection deposit. He has stated that he was working in the office of the Assistant Registrar (Recovery) Co-operative Society since September 1967 and accused was posted as Kurk Amin since 4. 8. 1971. He has proved Ex. Ka 36 the appointment letter of the accused and further deposed that Kurk Amins were bound to deposit the amount of recovery within 15 days from the date of recovery. P. W. 2 Bhagwan Singh, S. I. is the Investigating Officer in this case who deposed that be was S. I. in Special Investigation Branch, Meerut since March, 1972 to March. 1973 and he investigated the case and submitted charge sheet Ex. Ka 33. P. W. 3chandrabhan Singh is the constable Moharrir of P. S. Khurja who has proved the chik report Ex. Ka 6 and has filed copy of general diary Ex. Ka 35. ( 5 ) THE learned Judicial Magistrate I Class, Khurja convicted the accused u/s 409 I. P. C. and sentenced him to three months R. I. but instead of sending him to Jail, he gave him the benefit of 5. 4 of the First Offender Act as mentioned above. Aggrieved by this judgment, the State of U P. has filed the present appeal for enhancement of sentence. Though the appeal was admitted, no stay order had been passed. Consequently, the opposite party deposited the sureties as ordered by the Judicial Magistrate I Class. The period of probation for good conduct for a year has already expired. ( 6 ) THE position of law on the point that benefit of 5. Though the appeal was admitted, no stay order had been passed. Consequently, the opposite party deposited the sureties as ordered by the Judicial Magistrate I Class. The period of probation for good conduct for a year has already expired. ( 6 ) THE position of law on the point that benefit of 5. 4 of the First Offender Act can be given on the basis of 5. 409 I. P. C. is very well settled by now. In the case of State v. Sheo Shankar the division bench of this High Court has held as under:the words punishable with death or transportation for lifet cannot mean punishable with death or in the alternative with transportation for life. The plain meaning of the words Tan offence not punishable with death or transportation for lifet is an offence not punishable with transportation for life. TDeath or transportation for life must not be a punishment that can be legally inflicted for the offence; if death can be inflicted and if transportation for life can be inflicted, it is not Tan offence not punishable with death or transportation for life regardless of whether any other punishment can be inflicted either in the alternative or in addition to the punishment of death or transportation for life, as the case may be Since the offence of 5. 409, Penal Code is punishable with transportation for life or imprisonment and fine the accused could not be released on probation of good conduct. The word or does not mean that the two punishments are in the Alternative; there is no justification whatsoever for interpreting the provision to mean that death and transportation for life must be the two alternative punishments provided for the offence in order to exclude it from the benefit of s 4 of the Act. To do so one would have to add words in the section which is beyond the courts jurisdiction. To do so one would have to add words in the section which is beyond the courts jurisdiction. The above view of the Allahabad High Court has been confirmed by the decision of the Supreme Court in the case of Som Nath Pun v. State of Rajasthan wherein it has been held that tas the offence of criminal breach of trust under section 409, I. P. C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life. Aparat from this reasoning, section 18 of the Probation of Offenders Act makes the provisions of that Act inapplicable to an Offence under subsection (2) of section 5 of the Prevention of Corruption Act. T an offence under section 409 1. P. C. is punishable upto imprisonment for life. Therefore, in view of the above authorities, First Offenders Act is not applicable to this case due to sub-section 1 of section 4 of the same Act, which lays down that When a person is convicted of an offence not punishable with death or transportation for life, he may be released on probation on good conduct in certain circumstances. Similar provision occurred in sec. 562 (1) of the Code of Criminal Procedure, 1898 (sec. 360 of the new Code of 1973) and has been the subject of interpretation under that provision. The same language having been used in this section and that provision being pan material, interpretation made under that provision will apply equally to the provision of this section, and consequently those interpretations may be usefully referred to. ( 7 ) IN Emperor v. Misree La1 it has been held that the provision of section 562 Cr. PC. (now s. 360 of the Code of 1973) do not apply to the case of a person who has not only been convicted but sentenced as well.- In State v. Shiv Shankar (Supra), it has been held that the Magistrate ought to have ordered the opposite party to be of good behaviors and to keep the peace during the period of probation. Further he ought not to have laid down that he would be called upon to receive severe punishment if he repeated the offence; he had no jurisdiction to pass such an order. He should have confined himself to the order that he was required to pass under section 4 and ought not to have gone out of his way to pass an arbitrary order. ( 8 ) SIMILAR view has been taken in the case of Mst. Barkat v. Emperor State vs. Jagdish5. In these cases, it has been held that imposition of sentence while releasing on probation would be illegal. The trial Court inflicted upon the accused a sentence of simple imprisonment of six months and also released her under section 562 Cr. P. C. (now sec. 360 of the Code of 1973) on probation of good conduct The language of s. 562 Cr. P. C. makes it clear that the sentence of imprisonment imposed upon her, while she was released on probation of good conduct, was wholly illegal, and was therefore, quashed. ( 9 ) IN view of the above authorities, we have no doubt in our mind that the order passed by the learned Magistrate giving benefit under section 4 of the First Offenders Act to the appellant is wholly illegal, without jurisdiction and nullity, which cannot be maintained. Now, in appeal filed by the State for enhancement of sentence under section 377 Cr. P. C. 1 we have been called upon to decide as to what should be done in such a case. The facts and merit of the prosecution case have not been disputed. The appellant has admitted his guilt and pleaded that he has lost his job and his case should be considered leniently. ( 10 ) THE learned counsel for the appellant has urged that the appellant cannot be punished for the same offence twice. He was convicted for three months R 1/ and in lieu of the same, he has remained under the conditions imposed by the trial Court for the year. Now the first question before us is to decide whether order passed under the First Offenders Act giving benefit of s. 4 to the appellant in lieu of sentence is punishment? He was convicted for three months R 1/ and in lieu of the same, he has remained under the conditions imposed by the trial Court for the year. Now the first question before us is to decide whether order passed under the First Offenders Act giving benefit of s. 4 to the appellant in lieu of sentence is punishment? ( 11 ) PROBATION is not the result of any intentional or planned legislation but it is a consequence of voluntary and humanitarian approach to mend the offender for his rehabilitation in the society. The word probation is derived from the Latin word probation or probare which means a period of proving or trial. It means testing of a personts conduct Or character according to Law Lexicon of British India by R. R. Iyer. The Indian Statutes have not defined the word probation. However, various attempts have been made by different authorities in and outside India to do so. ( 12 ) ACCORDING to 2 H. Sutherland, probation is a status of convicted offender during a period of suspension of sentence in which he is given liberty conditioned on his good behavior and in which the State by supervision, attempts to assist to maintain good behaviors. T Max Grunhut advances a simple definition of probation as condition of two equally essential elements, namely suspension of sentence plus personal supervision. The United Nations Department of Social Affairs-1951 (Probation and Related Measures) has defined probation as a process of treatment prescribed by the Court for persons convicted of offences against the Law during which the individual or probationer lives in a community and regulates his own life of conditions imposed by the Court or other constituted authority and is subject to supervision of a probation officer. An Indian Criminologist Dr. Jyotsna Shah has described probation as a method of dealing with offenders. It developed as an alternative to imprisonment applicable to cases where guilt was established but there the judiciary considered imposing of prison sentence will do no good. It is a conditional suspension of punishment. She (Dr. Shah) continues to say that, there is a widespread tendency to view probation as a form of leniency or as a let off. The misconception is amongst law people, generally among offenders themselves; among lawyers and sometimes even among the judicial officers and others charged with the enforcement of the law. It is a conditional suspension of punishment. She (Dr. Shah) continues to say that, there is a widespread tendency to view probation as a form of leniency or as a let off. The misconception is amongst law people, generally among offenders themselves; among lawyers and sometimes even among the judicial officers and others charged with the enforcement of the law. This misconception is a legacy of the punitive approach to the treatment of the offenders as apparently it looks as if the probationers escape penalty for their offences. The abuse of probation system and inadequate use of its necessary safeguards similarly strengthen such misconceptions about probation. ( 13 ) NOW from the above discussions, it may be safely inferred that probation has three essential elements: a. Conviction b. Suspension of sentence, and supervision. The study of the subject of probation will not be complete without a reference to its pioneer, nay the father or probationt, namely John Augustus. Till his death in 1858 he had bailed out 1,946 persons. What Augustus practised in 1841 had its direct precursors in the so called Benefit of Clergyt, the Judicial review, Recognizance, Bail and Filing of a case But the legal precedent for the suspended sentence is generally considered to have been stated in the case of Forsyth v. Court of Session (141 NY 288: 36 NE 386 (1894) in which the Judge suspended the sentence of a young man who had a previous record of good behaviour. The precedent set in Forsyth case was vigorously challenged in the Killitis case and it reached the Supreme Court of U. S. A. , in a Federal case being tried in the North District of Ohio, the Judge Killitis suspended the sentence of the offender on the ground that he had made complete restitution of embezzled money. Exception was taken of the Courts ruling- by the United States Attorney General, I. W. Gregory who ultimately got a unanimous decision from the Supreme Court on December 4, 1916 upholding Gregorys contention that the Federal Court do not have the power to suspend sentences indefinitely. The Court however did suggest that the dilemma be resolved by probation legislation or such other means as the legislative mind may devise. Probation was introduced into the Federal Courts by specific statute, nine years after the Killitis decision in 1925. The Court however did suggest that the dilemma be resolved by probation legislation or such other means as the legislative mind may devise. Probation was introduced into the Federal Courts by specific statute, nine years after the Killitis decision in 1925. ( 14 ) IN India, before the Probation Act of 1958 was enacted. section 562 the Cr. P. C. , 1898 (sec. 360 Cr. P. C. , 1973) dealt with the power of Court to release certain convicted offenders on probation of good conduct instead of sentencing then to punishment ( 15 ) THE Probation of Offenders Act, 1958 has not been adopted by the State of V. P. which has its own local V. P. First Offenders Probation Act 1938. The order passed by the learned Magistrate does not specifically mention the V. P. First Offenders Probation Act but there is no doubt that be passed the orders under the local Act. There is no material difference in the phraseology of section 4 of V. P. First Offenders Probation Act, 1938 and the Central Probation of Offenders Act 1958. Under both the Acts the offence under section 409 I. P. C. , which is punishable with life imprisonment, could not be covered and its advantage could not be given to an offender. Consequently the benefit of the First Offenders Probation Act in a case under section 409 I. P. C. , (is extended by the learned magistrate in the instant case, could not be extended ( 16 ) THERE is yet another reason to hold that the order passed by the Magistrate was illegal because the learned Magistrate has imposed the sentence of three monthst R. I. upon the accused and thereafter he has been released on probation to keep peace and be of good behaviour The order of sentence and benefit or probation cannot run together under this section. The sentence of punishment is postponed and something which is not punishment is substituted therefore. In our opinion, an order u/s. 4 (1) of the Probation of First Offenders Act directing the release upon probation of good conduct cannot be said to be a punishment. The sentence of punishment is postponed and something which is not punishment is substituted therefore. In our opinion, an order u/s. 4 (1) of the Probation of First Offenders Act directing the release upon probation of good conduct cannot be said to be a punishment. It is not one of the various kinds of punishment described u/s 53 of the I. P. C. An accused cannot be punished and at the same time released on his entering into a bond with or without sureties to appear and receive the sentence when called upon and in the meantime to keep the peace and be of good behaviour. The order of the Magistrate does not seem to be in conformity with the, provisions of s. 4 (1) of the Probation of Offenders Act. Therefore, the order passed by the Magistrate is illegal. ( 17 ) ARGUMENT was also advanced on the basis of Art 20 of the Constitution of India that the respondent cannot be tried and convicted twice for the same offence. The appeal against enhancement is in continuation of trial, therefore, Art. 20 of the Constitution of India has no application at all to the present case. In this view of the matter, we reject this plea as well. ( 18 ) IN the instant case, an unusual situation has arisen due to mistake of Court. The appellant had shown his good behaviour for one year. But for the offence u/s. 409 I P. C. , this benefit could not be given. Under section 409 I. P. C. after conviction, some sentence is necessary. The appellant has already observed all the conditions imposed by the Court. Under the circumstances of the present case, it would not be wrong in the case to temper justice with a little mercy and to give the accused another chance in life. The accused is a young man and has already lost his job. No useful purpose will be served by sending him to Jail. But under section 409 I. P. C. , sentence is one in which a term - of imprisonment however slight, must be imposed. Therefore, we reduce the sentence of imprisonment from one of three months R. I. to one Of imprisonment till the rising of this Court and a fine of Rs. 300/ -. But under section 409 I. P. C. , sentence is one in which a term - of imprisonment however slight, must be imposed. Therefore, we reduce the sentence of imprisonment from one of three months R. I. to one Of imprisonment till the rising of this Court and a fine of Rs. 300/ -. In default of payment, the opposite party shall have to undergo 2 months R. I. ( 19 ) IN the result, the appeal succeeds an is allowed the order passed by the Judicial Magistrate I Class, Khurja giving benefit of First Offender Act to the opposite party-Deo Datta Sharma is set aside. The sentence of 3 months R. T. awarded to him is modified to the extent of imprisonment till rising of the Court and fine of Rs. 300/ -. In default of payment of fine within a month the opposite party shall have to undergo 2 months R. I. Sd. B. C. Johauri sd. R. K. Shukla dt. 20. 7. 1984 accused Deo Datt Sharma who was present in court at the. time of delivery of the judgment has served out his sentence till rising of the Court. Sd. R. K. Shukla appeal allowed .