JUDGMENT B. Prasad, J. - This application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short' the Code) is directed against the order dated 7-4-1986 passed in Criminal Appeal No. 421 of 1983 by Shri A.G. Dutta, Additional Sessions Judge, Patna dismissing the appeal and upholding the judgment of conviction passed by Shri U.N. Singh, judicial Magistrate, 1st Class, Danapur on 19-12-1983. Originally there were 12 accused in the case out of whom Ganga Singh is said to have died. The present application has, therefore, been filed by the remaining 11 accused of the case whose conviction was affirmed by the learned lower appellate court. 2. It has been contended that before Shri U.N. Singh Judicial Magistrate, Danapur a case against these petitioners under sections 147, 148, 323, 324 and 149 of the Indian Penal Code was registered. 13 y the judgment dated 19-12-1983; the learned Magistrate was pleased to convict the petitioner no. 3 Sudama Singh for the offence under section 324 of the Indian Penal Code and sentenced him to undergo R.I. for two years. Sudama Singh and petitioner no.10 Bansh Lochan Singh were further convicted for the offence under section 148 of the Indian Penal Code and each of them was further sentenced to undergo R.I. for one year. The other petitioners were convicted for the offence under sections 147 and 323 of the Indian Penal Code and except petitioner no.1 Shiv Kumar Singh and petitioner no. 11 Ram Udar Singh others were sentenced to undergo R.I. for six months each under each count. Petitioner nos. 1 and 11 were however ordered to be released on probation of good conduct. 3. An appeal was filed against this judgment being Criminal Appeal No. 421 of 1983. It was heard by the IVth Additional Sessions Judge, Patna who was pleased to dismiss the same with modification in the conviction of petitioner no. 3 Sudama Singh from the offence under section 324 of the Indian Penal Code to Section 323 of the Indian Penal Code. The sentences awarded to all the petitioners were modified to the effect that each of them was convicted under section 323/149 of the Indian Penal Code and was sentenced to pay a fine of Rs. 200/- in default to undergo simple imprisonment for one month each. The sentences awarded to all the petitioners were modified to the effect that each of them was convicted under section 323/149 of the Indian Penal Code and was sentenced to pay a fine of Rs. 200/- in default to undergo simple imprisonment for one month each. No. separate sentence was awarded for the offences under sections 147 and 148 of the Indian Penal Code. However, the learned Additional Sessions Judge set aside the order of the learned Magistrate with respect to petitioner nos. 1 and 11 who were earlier ordered to be released on probation of good conduct and instead they also were sentenced to pay a fine of Rs. 200/- each even when there was no appeal against the order of the learned Magistrate by the State Government. 4. A number of grounds have been taken in this application. One of which was that the prosecution had not explained the injury found on the person of petitioner no. 2 as proved through Ext. A. It has further been contended that the manner of assault has not been proved by the prosecution and only interested witnesses were examined. There is no medical evidence on record. 5. The main ground taken, however, in this application is that since no previous conviction was proved against the present petitioners the court should have taken recourse to the provisions of section 360 of the Code. As a matter of fact with respect to petitioner nos. 1 and 11 the court bad ordered their release on probation of good conduct and as such the learned appellate court sentencing them also to pay a fine of Rs. 200/- each was illegal and without jurisdiction. 6. At the time of hearing Shri Nagendra Roy, learned counsel appearing on behalf of the petitioners has submitted that the learned trial court as also the learned lower appellate court have not complied with the mandatory provisions of Sections 360 and 361 of the Code and on this ground alone their judgments are liable to be set aside. It was his contention that in the given situation it was mandatory on the part of the learned Magistrate as also on the part of the leaned lower appellate court to record the special reasons as required under section 361 of the Code for not having dealt with the present petitioners under the provisions of Section 360 of the Code. It was his contention that in the given situation it was mandatory on the part of the learned Magistrate as also on the part of the leaned lower appellate court to record the special reasons as required under section 361 of the Code for not having dealt with the present petitioners under the provisions of Section 360 of the Code. Since this contention is of considerable importance, I would like to deal with is in detail. Section 360 of the Code runs as follows:- 360. Order to release on probation of good conduct or after admonition (1) "When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, it appears to the Court before which he is convicted, regard being had to the age character or antecedents of the offender, and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct. 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 behaviour : Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). * * * * * 7. * * * * * 7. From Section 360 (i) of the Code it becomes clear that when any person not under 21 years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less and, no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 behaviour. 8. This section has to be read with Section 361 of the Code which requires that special reasons have to be recorded where in any case the Court could have dealt with an accused under section 360 (1) or under the provisions of Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so. 9. A reading of these two sections makes it clear that in the case of Section 360 (1) of the Code if the court has not dealt with an accused under the provision of this sub-section or under the provisions of Probation of Offenders Act, 1958 it has to record in its judgment the 'special reasons' for not having done so. 10. From the judgment of the trial court, it appears that the accused persons before it were convicted under sections 324, 143, 147 and 323 of the Indian Penal Code. An offence under section 148 is punishable with imprisonment of three years or fine or both. An offence under section 324 of the Code is also punishable with imprisonment of three years or fine or both. So far as the offences under sections 147 and 323 of the Indian Penal Code are concerned they are punishable with lesser terms of imprisonment. An offence under section 324 of the Code is also punishable with imprisonment of three years or fine or both. So far as the offences under sections 147 and 323 of the Indian Penal Code are concerned they are punishable with lesser terms of imprisonment. The provisions of Section 360 of the Code are attracted if a person not under 21 years of age is convicted of an offence which is punishable with imprisonment for a term of 7 years or less. Therefore, under the facts and circumstances of the case, it is clear that the provisions of this section would be attracted. That being the position it was mandatory on the part of the learned Magistrate to record the learned Magistrate to record the 'special reasons' in its judgment for not having dealt with the accused under the provisions of Section 360 of the Code or the Probation of Offenders Act, 1958. 11. The matter had come up for consideration before the Hon'ble Supreme Court in the case of Bishnudeo Sao vs. State of West Bengal reported in A.I.R. 1979 S.C. 964. The meaning of the expression 'special reasons' as contemplated by Section 354 (3) of the Code as also under section 361 of the Code had come up for interpretation before the Hon'ble Supreme Court in the said decision. It has been observed in paragraph 25 of this judgment that if the court refrains from dealing with an offender under section 360 or under the provisions of Probation of Offenders Act or any other law for the treatment, training or rehabilitation of youthful offenders where the court could have done so, section 361, which is a new provision in the 1973 Code makes it mandatory for the court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state 'special reasons' if it does not do so. In the context of Section 360 the 'special reasons' contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. In the context of Section 360 the 'special reasons' contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. Thus the law has clearly been laid down with respect to the application of Section 360 and 361 of the Code by the Hon'ble Supreme Court which has to be followed. 12. This matter had come up for consideration before me in the case of Ayodhya Rai and another Vs. State of Bihar reported in (1989) 2 B.L.J. 550 . Relying on the above mentioned decision of the Supreme Court in the case of Bishnudeo Sao (Supra) the judgments of both the trial court and lower appellate court were quashed. 13. It has further been contended that from the judgment of the trial court, it would appear that two of the accused namely Sheo Kumar Singh and Ram Udar Singh were ordered to be released on executing bonds of Rs. 2,000/- each with two sureties of the like amount to receive the sentence whenever called upon to do so during the period of three years. The grounds stated in the judgments are that so far as accused Sheo Kumar Singh was concerned the P.W. who deposed against him were on enimical terms with him. So far as accused Ram Udar Singh is concerned it has been stated that since he is a Karamchari in the Block Office, his false implication cannot be ruled out. Learned counsel for the petitioners has submitted that these cannot be made a ground for extending the provisions of Probation of Offenders Act or section 360 of the Code to these accused only while denying the same to the rest. In this connection, my attention has been drawn to the case Ratilal v. Purshottam (A.I.R. 1979 S.C. 1290) in which appellant nos. 1 and 3 were not given benefit of the Probation of Offenders Act although other appellants were given its benefit by the High Court which had enhanced the sentences imposed on them by the Magistrate at the instance of the State. 1 and 3 were not given benefit of the Probation of Offenders Act although other appellants were given its benefit by the High Court which had enhanced the sentences imposed on them by the Magistrate at the instance of the State. The Supreme Court observed that the order of the High Court giving benefit of Probation of Offenders Act to other accused but not to appellants 1 and 3 cannot be supported. In the circumstances, the sentences of appellants 1 and 3 were also ordered to be suspended and they were released on probation on executing of bond of Rs. 1,000/- each to maintain good behaviour for a period of one year failing which they will be called upon to receive the sentence. From this it would also appear that the learned trial court should not have extended the benefits of Probation of Offenders Act only to accused Sheo Kumar Singh and Ram Udar Singh on the grounds as mentioned by it. 14. Lastly, it has been contended on behalf of the petitioners that though accused Sheo Kumar Singh and Ram Udar Singh were released on executing bonds of Rs. 2,000/- each with two sureties of the like amount, the learned lower appellate court had not taken notice of this part of the order of the trial court. On the other hand, he dealt with all the appellants on the same footing and while dismissing the appeal he modified the sentences against the appellants to a fine of Rs. 200/- each for the offence under sections 323/149 of the Indian Penal Code. It was contended that from paragraph 12 of the judgment of the lower appellate court it would appear that even these two accused namely Sheo Kumar Singh and Ramuder Singh who are petitioners before me were sentenced to pay a fine of Rs. 200/- each. This, according to the learned counsel would amount to enhancement of the sentences against them which is not permissible under law without giving any notice to them to that effect. I have closely examined the judgment passed by the learned Additional Sessions Judge. From paragraph 1 of the judgment it would appear that appellants Sheo Kumar Singh and Ramudar Singh were ordered to be released on probation of good conduct by the trial court while rest of the appellants were convicted under the various sections and were sentenced to imprisonment for various periods. From paragraph 1 of the judgment it would appear that appellants Sheo Kumar Singh and Ramudar Singh were ordered to be released on probation of good conduct by the trial court while rest of the appellants were convicted under the various sections and were sentenced to imprisonment for various periods. If paragraphs 1 and 12 of the judgment of the learned lower appellate court are read together it would appear that this fine of Rs. 200/- was imposed only on those appellants who were given various sentences of imprisonment and not to these appellants namely Sheo Kumar Singh and Ram Udar Singh. From paragraph 12 of the judgment it appears that only the sentences of rigorous and simple imprisonment as noted above were reduced to a fine of R.I. 200/- for the offence under section 323/149 of the Indian Penal Code though by mistake the learned lower appellate court has made this order applicable to all the appellants. In effect, however, it would mean that this order will apply to all the appellants except appellants Sheo Kiumar Singh and Ram Udar Singh who were not sentenced to any imprisonment by the learned trial court. 15. Be that as it may, from the detailed discussions made above, it becomes clear that the judgment of the learned trial court as also the judgment of the learned lower appellate court cannot be sustained against any of the petitioners for the reasons mentioned above. 16. In the result, this application is allowed and the judgment of conviction of the learned trial court and also the judgment of the learned lower appellate court dismissing the appeal with modification in sentences of the petitioners are hereby quashed.