JUDGMENT 1. - This Revision petition has been filed against the Judgment dated 29-6-85 passed by learned Sessions Judge, Sawai Madhopur upholding the conviction and sentence passed against the accused by learned Munsif and Judicial Magistrate, Sawai Madhopur. The accused petitioner was convicted for offence under Sections 454 and 380 IPC and sentenced to two year's rigorous imprisonment and to pay a fine of Rs. 100/- on each count. In default of payment of fine, he was directed to further undergo 15 days' simple imprisonment on each count. 2. Brief facts leading to this case are that a report was lodged at Police Station, Sawai Madhopur on 30-5-75 by one lalita, Pujari of temple Th. Shreeji situated in Fort Ranthambhor, Sawai Madhopur wherein it was alleged that idols of Shreeji (three Jugaljori of Metal and nine other idols (small) of metal) have been stolen from the temple on the preceding night. Pujari alleged that when he locked the temple in the night after evening prayers, the idols were there but when he arrived in the morning, the found them missing and thus theft has been committed. On receipt of this report, case was registered for offence under Sections 457 and 380 IPC. During the course of investigation, the petitioner along with Sita Ram and Ashok were arrested. Petitioner and Ashok were arrested on 13-7-75 and Sita Ram on 9-7-75. At the instance and on information of the accused 12 smallidols were recovered and after completing the investigation, police submitted the charge-sheet against all the three accused. Prosecution examined five witnesses in support of its case. The learned trial Judge acquitted Sita Ram but convicted the petitioner and one Ashok for offence under Section 457 and 380 I. P. C. and sentenced as aforesaid. Petitioner preferred a revision petition against the said judgment of convication and sentence on 3-7-85, which was admitted on 4-7-85 and the record was ordered to be called for. Accused Ashoka sent a revision petition from Jail which was received by this Court on 13-9-85 and was admitted on 16-9-85. An amicus curiea was appointed and on 22-11-85 it came up for hearing before the Court but the record was not available. Hence, the court directed that the record of the trial court be summoned. Accused Ashoka sent a revision petition from Jail which was received by this Court on 13-9-85 and was admitted on 16-9-85. An amicus curiea was appointed and on 22-11-85 it came up for hearing before the Court but the record was not available. Hence, the court directed that the record of the trial court be summoned. The office reported that record has already been received in criminal revision petition No. 182/85 filed by the co-accused which is lying for hearing in due course. Office reported that the complete record has been received and the case was ordered to be listed for admission in court on 13-12-85 in utter ignorance of the order already passed by the Court on 16-9-85 by which the revision petition had been admitted. It came up before one of my brother Judges on 13-12-85 and the Court after hearing the revision petition. It appears that the fact of the judgment brought to the notice of the Court, and due to lapse on part of registry, there was no noting that case has to be tagged with the revision petition of the co-accused which is in due course. When present revision Petition came up for final hearing on 24-2-89, I thought it proper to verify from the Registry as to whether revision has been filed by co-accused, or not because again there was no noting on this file and on a search made, the Registry brought the file of criminal revision No. 283/85 which was dismissed by my brother Hon'ble M.B. Sharma J. on 13-12-1985 as stated above. This is how this revision petition came to be heard. 3. Arguments were heard on merits on 24-2-89 and the case was kept for dictation of judgment of judgment on 27-2-89 and the case was kept for dictation of judgment on 27-2-89. This is how this revision petition came to be heard. 3. Arguments were heard on merits on 24-2-89 and the case was kept for dictation of judgment of judgment on 27-2-89 and the case was kept for dictation of judgment on 27-2-89. I found on perusal of the record that there was no warrant for interference in the order of conviction and there were more chances for dismissal of the revision on merits, but at the same time, it could be a case of mis-guiding the accused by some one as he was of tender age at the time of commission of the offence and possibly could be a case where accused could have been reformed in case his case would have been dealt with under the provisions of Probations of offenders Act (hereinafter referred to as `the Act') and, therefore, vide order dated 28-2-89, I directed District Probation Officer, Sawai Madhopur to send his report of the conduct of the petitioner as contemplated under Section 4 (2) and 6 (2) of the Act and Rule 16(1) of the Rajasthan Probation of offenders rules, 1962. A report has been received from the Probation Officer on 24-3-89. It is thereafter, that case came up for hearing again today. 4. I have heard learned counsel for the petitioner Shri R.N. Sharma and Shri Rizwan Alvi for the State and have perused the entire record. 5. Both the courts below have dealt with the evidence of the recovery of the idols as well as the circumstances leading to the discovery and have then come to the conclusion that accused had given the information under Section 27 in pursuance of which seven metal idols have been recovered. No circumstances have been pointed out which could persuade me to form an opinion other then formed by the trial court. Hence, I find no force in the revision petition on merits. 6. Regarding the question of sentence, I am of the opinion that neither the trial court nor the appellate Court has correctly considered the provision of Section 235 Cr.P.C. as well as Sections 360 and 361 of the Code of Criminal Procedure read with various provisions of the Act. Hence, I find no force in the revision petition on merits. 6. Regarding the question of sentence, I am of the opinion that neither the trial court nor the appellate Court has correctly considered the provision of Section 235 Cr.P.C. as well as Sections 360 and 361 of the Code of Criminal Procedure read with various provisions of the Act. Neither the trial court nor the appellate Court has even sent for the report of the Probation Officer and have refused to consider the case for Probation and for awarding lesser sentence on the ground that offence is of very serious nature and it is against morality. Long sermons have been given in the judgments both by the trial Court and the appellate Court touching the social and religious sentiments of the country. It may be observed that no offence worth the name is even in consonance with a good sense or morality. The gravity of the offence may be different and may even be much more serious, than present, it may touch the social or religious sentiments of the persons but still the court while imparting justice has to maintain the balance and consider surrounding circumstances also. Sentencing is one of the most difficult task before a judge and he has to consider that the person whom he is sentencing is likely to become hardened criminal or there is a ray of hope for reforming him. It is for the latter that the legislature enacted the provision of Probation Law which is a milestone in modern reformative approach to crime but it is felt that hopes of the legislature are belied to the extent expected and it is not considered that keeping in view all civilised countries have worked in direction of securing measures of reformation of the criminals. Legislature have also incorporated Section 360 and 361 in the Code of Criminal Procedure. Section 235 of Cr.P.C. has also been brought on statute with a view that the court must hear the accused on the question of sentence and even prior to that the must consider whether the case is for dealing with under the provisions of section 360 Cr.P.C. Section 325 Cr.P.C. reads as under:- "Section 235, Judgment of acquittal or conviction 1. After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. 2. After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. 2. If the accused is convicted the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." Section 235 (1) Cr.P.C. requires the judge to hear the arguments and the points of law involved, if any, in the case and then proceed to give the judgment. The judgment may be of conviction or acquittal but in case it is a judgment of conviction then according to sub-section (2), the accused has to be given another hearing on the question of sentence in case he is of the opinion after recording conviction that accused has not to be given benefit of provisions of section 360 Cr.P.C. This provision did not exist in the earlier Code of Criminal Procedure i. e. Code of 1898 where the corresponding Section was Section 309. The law Commission in its 48th report recommended that, it has now been increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to to the agriculturists and background of the offender. The aims of sentencing-themselves obscure - become all the more as in the absence of information which the correctional process is to operate. "It was in this background that an obligation has been made on the court to hear the accused on question of sentence and this obligation cannot be discharged by putting formal question to the accused. Their Lordships of the Supreme Court in Daqdu and others v. State of Maharashtra, AIR 1977 SC 1579 ; held, that humanist principle of individualising punishment to suit the person and the circumstances is best served by hearing the culprit even on the nature and quantum of penalty to be imposed. This was held by their Lordships quoting Frankfurter J. of the American Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 wherein the court explained the reasons for introduction of the change in sub-section (2) of Section 235 Cr.P.C. The Court held as under:- "In this content S. 235(2) is also relevant. This was held by their Lordships quoting Frankfurter J. of the American Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 wherein the court explained the reasons for introduction of the change in sub-section (2) of Section 235 Cr.P.C. The Court held as under:- "In this content S. 235(2) is also relevant. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution of the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. As can be seen, S. 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have consistently with the policy under-lined in section 354(3), a hearing on the choice of sentence. The present legislative policy discernible from Section 235 (2) read with S. 354 (3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration "Principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. The Supreme Court should not venture or formulate rigid standards in an area in which the Legislature so warily treads." This court also in Kajor v. State, 1976 RLW 653 held that non-compliance of Section 235 (2) Cr.P.C. will unduely vitiate the final order passed by the Court and this court remanded the case back to trial Court on that count. Similar was the view taken in Sheshiva v. State, 1978 RCC 58 and consistently thereafter this court has observed the same in several other cases. Similar was the view taken in Sheshiva v. State, 1978 RCC 58 and consistently thereafter this court has observed the same in several other cases. But as stated above, before doing this yet another imperative obligation casts upon the Court is to look into the mandatory provisions of Section 360 and 361 Cr.P.C. Section 360 Cr.P.C. as now stands incorporates in itself the provisions of Section 562, 563, 564 and 380 of the Code of Criminal Procedure, 1898 with certain changes. But Section 361 Cr.P.C. has been new added where the Judge has to record special reasons in case the benefit of Section 360 Cr.P.C. is not granted. This Court in Nag Singh v. State of Rajasthan, 1980 RCC 146 has held that the provisions of Section 361 Cr P.C. are mandatory. The use of word `shall' makes bounden duty on a Court to apply its mind to the provisions of Section 360 Cr.P.C. There are mainly two objects behind infliction of punishment one is for prevention of recurrence of offences and secondly, the reformation of the offender. The Criminal-ogists and Penalogists are now unanimous of the view that punishment would become greater evil if instead of reforming the offender, it is likely to harden the offender and to enable repetition of crime with the possibility of irreparable injury to him. A heavy responsibility lies on the court while considering the case from this point of view because at timesit may cause more harm to the accused then justice to him. Their Lordships of the Supreme Court in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 condemned the police supplying the bribe money to the complainant and observed as under:- "Whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law; and more particularly by those who are the guardians and keepers of the law. However regrettable the necessity of employing agents provocateurs may be (and this is unfortunately often inevitable if corruption is to be detected and bribery stamped out, it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done. The very best of men have moments of weakness and temptation, and even the worst, times when they recent of an evil though and are given an inner strength to set satsan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wrongdoing, it behoves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start afresh a train of criminal though which had been finally set aside." 7. Though this case does not apply in the instant case but the phrasology used is of much relevance that there may be circumstances where offenders may be led to succumb to sudden temptation or uncontrolable impulses or have done a thoughtless rather than a criminal act or were at the time offence acting under the influence of others as W.W. Chitley has used the phrasology in his 8th Edition Vol. III of the Code of Criminal Procedure at page 592 and it is for this reason that the legislature in sub-section (1) of section 360 Cr. P. C. used the phrasology instead of sentencing him at once to any punishment' which again means that before passing the sentence the Court will have to apply its mind as to whether the case is fit for giving the benefit of Section 360 Cr. P. C. or section 3 or 4 or 6 of the Act. It is normally seen that these mandatory provisions are more followed in breach then in observance as consideration of the case under section 360 Cr. P. C. is considered as a ritual. P. C. or section 3 or 4 or 6 of the Act. It is normally seen that these mandatory provisions are more followed in breach then in observance as consideration of the case under section 360 Cr. P. C. is considered as a ritual. The Court has to consider the age character or antecedents of the offenders and same can hardly be judged unless there is a report before the Court from the probation of offenders Act requires the consideration of the report of the Probation Officer. The words `if any' in this section has to be read with the word' shall be taken into consideration' which leads to only interference that unless otherwise either there is some material on record or that it is not feasable or otherwise considered necessary for calling a report, the report must be called for else there is no material before the Court to consider the character and antecedents of the person except in those cases where the accused is a previous convict or a habitual offender. In that case, the legislature itself has kept the application of the provisions out of consideration. It is not essential for the Court that it must accept the report filed by the probation officer but it would certainly go a long way to enable the Judge to come to a conclusions to whether the status, the background and the antecedents of the accused are such that imposition of punishment would spoil the future rather than reforming the person. Therefore, as far as possible rather in all cases unless otherwise the court has special reasons to have a departure it must call for the report of the Probation officer and give due consideration to it and it is only then the object of the Act and the provisions of Section 360 Cr. P. C. which are the progressive pieces of legislation can be achieved. Crime is a disease which requires to be cured and the criminal who is a sick man must have an opportunity of re-claiming and restoring to the society as a useful and responsible citizen. While delivering a talk on' Role of judiciary in Rehabilitation of Criminals' I had said : "When a patient who is suffering from a disease goes to a Doctor for treatment he is first referred to diagnostic clinic and thereafter the treatment is given to him. While delivering a talk on' Role of judiciary in Rehabilitation of Criminals' I had said : "When a patient who is suffering from a disease goes to a Doctor for treatment he is first referred to diagnostic clinic and thereafter the treatment is given to him. Even when he is cured of the disease, he is advised for after care which is the most important part so that there is no replapse of the disease. The patient is advised to be away from the infections and keep away from all those factors which had contributed to his sufferings. Similar treatment is to be meeted out to a criminal, according to reformatory theory of punishments. There are two ways of looking at them, one is ACTEUS RENS. 'Acteus' means deed and 'Rens' means forbidden by law i. e. act which has resulted into a crime as the same is forbidden by law. In this case the conduct of the persons committing the crime is directly related to his main action which has resulted into injury and the second is MENS REA where it is a willful act with a positive application of mind for commission of the crime. In both the cases the syndrom is of just being sick and, therefore, the criminal will have to be taken at per with a sick person for going to the Doctor. Another thing requires to mention is yet another principle that hate the crime and not the criminal and third factor is, crime is co-relative with social changes and the law in changing society. Their Lordships of the Supreme Court in the case Jugal Kishore prasad v. the State of Bihar, AIR 1972 Supreme Court 252 & Rameshwar Pandey v. State of Madhya Pradesh, AIR 1974 Supreme Court 358 have thrown light on modern criminal jurisprudence and said. "Modern criminal jurisprudence recognises that no one is born a criminal and that good many crimes are the product of social economic milieu." They went on to say that `crime is committed often out of ignorance or in mistaken justification or is a result of an inquitous social system." Therefore, if progressive correctional standards are to be developed, there must be vastly increased emphasis on probation and for that the attitudes of judges towards probation is highly important. It would give an accused a chance to correct or rehabilitate to become mentally healthy, to have an opportunity of making life habits which would meet the approval of the society and would avert the stigma of prison sentence. A Judge thus, has to play a great role. It has been said that a Judge who is not in sympathy with correction as a method of treating those convicted and crime or a Judge who is in sympathy yet hesitant to apply the principles of probation they rendered the probation law in-applicable. A Judge must not forget that the duty which he is discharging is a service in the spirit of the obligation to none except the Almighty who has given him a superiority to dominate over a person who needs to be corrected and rehabilitated. A law which has such loadable objects when is applied, it is expected of the Court that while passing the verdict he must consider that the offender does not face humiliation or condemnation for rest of his life if he has a potentiality of being corrected. 8. Keeping in mind the aforesaid principles, I sent for the report of the Probation Officer in this case and the report confirms my belief rather than belying it. The District Probation Officer in his report dated 24-3-89 has stated that accused was reported to be short tempered but good at heart. It has been reported that since after this case, there is a lot of change in his behaviour. He is a good character which has been certified by responsible persons of the locality and the member of legislative Assembly, Shri Motilal. The report further discloses that accused had taken a loan of Rs. 12,319/- from Bank of Baroda for opening a cycle shop in the year 1983 which shop he is running well and he has already paid of more than 50% of the loan in this short period. He is earning about Rs. 1,000/- P.M. and is well looking after his old parents, his wife and children. It is detailed report running in five full scape pages with which several certificates are attached which accused got when he was a student. He has even qualified himself for a certificate while he was in Junior Division, Naval wing of the National Cadet Corps. 1,000/- P.M. and is well looking after his old parents, his wife and children. It is detailed report running in five full scape pages with which several certificates are attached which accused got when he was a student. He has even qualified himself for a certificate while he was in Junior Division, Naval wing of the National Cadet Corps. He had repeated his good performance and was also awarded certificate for his physical exercise display on the Republic Day in Sawai Madhopur while he was a student. There is no word in the report which may require a second thought to consider his case sympathetically for dealing with under the provisions of the Act. To deny the benefit would amount the denial of justice and frustrating the cause and object for which the act and section 360 Cr. P.C. has been brought on statute. In fact the independent inquiry conducted by the District Probation Officer regarding the crime discloses that he was led to commit the crime by the brother of his brother in law (gainer) and ever since this crime which is alleged to have been committed 14 years before the accused has not been found involved in any such activity which is unbecoming of a good and responsible citizen. In this view of the matter, I am inclined to accept the report and give him the benefit of probation of offenders Act.The result of the aforesaid discussions is that this revision petition is partly allowed. Conviction of the petitioner is maintained but instead of sentence, he is given the benefit of provisions of section 4 of Probation of offenders Act. He shall execute a bond in the sum of Rs. 2000/- (Rs. Two thousand) for keeping peace and be of good behaviour for a period of one year, to the satisfaction of the trial court. The bond shall be executed within a period of two months from today. The accused is on bail, he need not surrender to his bail bonds for a period of two months as aforesaid. In case he executes the bond the bail bonds shall stand cancelled and in case the order is not complied with, the accused shall be arrested and will be taken in custody to serve out the sentence passed by the appellate Court. 9. In case he executes the bond the bail bonds shall stand cancelled and in case the order is not complied with, the accused shall be arrested and will be taken in custody to serve out the sentence passed by the appellate Court. 9. It appeals from the report that the District probation officer has taken pains to collect dates and based his report on the material collected by him. I record my appreciation for the labour done by the District Probation Officer in collecting the dates and presenting a proper report which is helpful to the Court. A copy of this judgment may also be sent to the District Probation Officer.Revision partly allowed. *******