JUDGMENT: D.P.S.Chauhan, J. 1. Having found the applicants-Chhabinath Dubey, Harinath Dubey, Suresh and Balram Yadav guilty for the offence of mischief causing damage to the wheat crop bundles of the complainant (Jainath Dubey) kept in the Khalihan for threshing, by setting fire, the 5th Munsif Magistrate, Varanasi in criminal case no. 407/1983 after holding them guilty under Section 435 IPC punish them on 8-4-1986 by imposing a sentence of imprisonment for 3 months' R. I. together with a fine of Rs. 500/- each and in default of payment of fine each defaulter was required to undergo 1 month's R. 1., where against the appeals nos. 75 of 1986 and 81 of 1986 preferred by two sets of applicants which were dismissed on 27-8-1987 by the II Addl. Sessions Judge, Varanasi. The present revision is the out come of the aforesaid conviction and sentence as imposed on the applicants which was admitted by this court on 9-10-1987 on the question of sentence. 2. Since the revision was admitted on the question of sentence, it is not necessary to enter into the merits of the matter. Heard learned counsel for the applicants Sri Amer Saran and learned Addl. Public Prosecutor. 3. Learned counsel for the applicants has submitted that the trial court, inspite of the fact that the applicants were first offenders, did not grant them the benefit under the beneficial legislation, such as, U.P. First Offenders Probation Act, 1938, by letting them off on probation of good conduct, inspite of their being entitled for being dealt with under Section 361 CrPC. They have been deprived the benefit by saying that 'seeing the nature of the offence, no benefit can be granted.' This reasoning can not be said to be the special reason as required thereunder. He prayed that this court, in exercise of its revisionary jurisdiction, may grant the applicants the benefit of being let off on probation of good conduct, so to provide them an opportunity of becoming non-offenders. 4. The submission so advanced by the learned counsel for the applicant has got substance. Though Section 360 CrPC was made in-applicable in this State by U. P. Act no. 16 of 1977, but the provisions of Section 361 CrPC as stood after amendment by the said U. P. Act hold the field in the present case. 4. The submission so advanced by the learned counsel for the applicant has got substance. Though Section 360 CrPC was made in-applicable in this State by U. P. Act no. 16 of 1977, but the provisions of Section 361 CrPC as stood after amendment by the said U. P. Act hold the field in the present case. The modern trend in the field of penalogy which has drifted towards the reformative side, is that efforts should be made to bring about correction and reformation of the individual and not to resort to retributive justice and as such instead of fitting the offence the criminal justice to fit the offender. 5. Since the life, liberty, property and his entire future hinges on the out come of the sentencing process and as such it is rightly said to be the sensitive exercise. Supreme Court on the occasion more than ones impressed upon the importance of applicability of the minor Acts such as the Probation of Offenders Act which relate to the dealing with an offender in such manner that he may become a non-offender and a duty is cast on the courts for fulfilling the humanizing mission as enshrined therein. In this regard reference may be had to case of (i) Ved Prakash v. State of Haryana, AIR 1981 SC 643 , the relevant portion wherefrom is as extracted below : "We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The trial court should have collected materials necessary to help award a just punishment in the circumstances. The social back ground and the personal factors of the crime-door are very relevant although in practice criminal courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Sec. 360 CrPC is not attracted, it is the duty of the sentencing court to be activist enough to correct such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislations which relate to emelioration in punishment have been regarded as 'Minor Acts' and therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of Offenders Act." (ii) Case of Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633 the relevant portion whereof is as extracted below : "The Probation of Offenders Act was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation, or after the due admonition and for matters connected therewith. The object of the act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above subject is in consequence with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals The Act gives statutory recognition to the above objective". 6. Having regard to the facts and circumstances of the present case and the object of punishment to achieve the objective reformation, I am of the view that the ends of justice would better be served if the applicants instead of being sent to prison are directed to be released on probation of good conduct on their execution of bond of good behaviour for a period of 1 year together with two sureties of 1000/- each and a personal recognizance bond of the same amount. Since the applicants are also saddled with the liability of fine and in default of payment of fine, they are required to undergo one month RI, the question for consideration is as to whether while granting the benefit under the beneficial legislation such as the U. P. First Offenders Probation Act, 1938 the penalty of fine on the offender as imposed by the trial magistrate, while sentencing him to imprisonment, can be maintained, or the same also to be wiped off. There may arise three situations such as (1) where the offence is punishable with fine only, (2) where the offence is punishable with fine and imprisonment, and (3) where the offence is punishable with imprisonment or fine. 7. In Jawahar v. Emperor, AIR 1945 Allahabad 206, Bennet, J. held that in cases where the offence is punishable with fine only the provisions of U. P. First Offenders Probation Act would not be attracted. The relevent portion is as extracted below : "As I understand section 3 the words 'any offence punishable with not more than two years' imprisonment' mean 'any offence punishable with imprisonment of not more than two years', and if this construction is adopted there can be no doubt that it as intended to exclude offences punishable by fine only. It is, I think, difficult to say that an offence punishable with fine only is punishable with not more than two years imprisonment. The legislature clearly seems to have been contemplating only cases where imprisonment is provided as a punishment and not cases where fine only is provided as punishment. Had it been the intention to include offences punishable with fine only it would have been easy to add the words 'or with fine only' after the words 'punishable with not more than two years' imprisonment'." 8. Taking shelter of this case, B. D. Mukherji, J. in Devi Das v. State, AIR 1954 Allahabad 9 held thus :- "In my judgment if the First Offenders Probation Act can not be invoked in aid by a convicted person who is sentenced to a fine only for relief then it follows that a convicted person can not get relief in respect of a sentence of fine also even though he may have been sentenced to a term of imprisonment as well. I am also of the opinion that the scheme of the Act clearly indicates that the legislature contemplated action being taken by courts in the case of first offenders only when they were being sent to jail. The object of the legislation clearly was to provide courts with the power of keeping away first offenders of a certain standard of life, or of a certain status from being contaminated by the atmosphere prevailing in jails. The sentence of fine passed on an offender has no such dangers about it. If the intention of the First Offenders Probation Act were that by taking action under it the stigma of conviction was also to be wiped out then possibly it could have been contended that courts were given powers to take action under the Act in a case where the offender was sentenced only, or in addition to a sentence of fine; but that is not the scope or the object of the Act. I am, therefore, of the view that action under the First Offenders Probation Act cannot be taken to relieve an offender in respect of a sentence of fine." This controversy came up for consideration before a Division Bench in R. K. Verma v. State, 1969 AWR 570 where question for consideration was whether the provisions of Section 4 of U. P. First Offenders Probation Act are applicable to offences which are punishable with a sentence of imprisonment and fine. It was held that the U. P. First Offenders Probation Act applies to offences punishable with imprisonment and fine where the imprisonment is not life imprisonment, Court interpreted the words.. "The court may instead of sentencing him at once to any punishment, direct that he be released.." The words any punishment includes a sentence of imprisonment, a sentence of fine and a sentence both of imprisonment and fine. These words show that the section empowers the court to release an offender on probation in lieu of "any sentence" to which he is liable, provided the case is otherwise covered by section 4. This means that even if an offender is punishable with imprisonment as well as fine, the court has the power under this provision to release him on probation instead of sentencing him. Thus the release on probation can be for an offence for which the offender renders himself liable to punishment of imprisonment and fine. 9. This means that even if an offender is punishable with imprisonment as well as fine, the court has the power under this provision to release him on probation instead of sentencing him. Thus the release on probation can be for an offence for which the offender renders himself liable to punishment of imprisonment and fine. 9. If we were to accept the contention that section 4 is applicable only to those offences which are punishable with imprisonment only, then the section will become inapplicable to a large number of offences set out in Indian Penal Code which are punishable with imprisonment as well as fine either in this alternative or in addition to it. It was suggested by learned counsel for the State that an accused may be released on probation instead of being sentenced to imprisonment and the sentence of fine may be imposed upon him. But the section does not permit such a procedure. It provides that a court may release an offender on probation, It will not pass any sentence against him. The sentence of imprisonment and fine is really one sentence for the offence and the court may either sentence the offender or release him on probation. IF it decides to release him on probation, it can not, at that stage, sentence him at all, but if it decides not to release him on probation, it may, if it is so provided either sentence him to imprisonment or to fine, or to both. 10. SO the position boils down that in both the cases i. e., where the offence is punishable with fine, and imprisonment or the offence is punishable with fine or imprisonment, the court will not pass any sentence against the offender while releasing him on probation of good conduct. Supreme Court in Ishwar Das v. State, AIR 1972 SC 1295 took the view that the sentence of fine can not also be imposed in such a case as it comes with the consequence of imprisonment if accused fails to pay the fine. As the object of Probation of Offenders Act is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily curtail imprisonment in case there is default of fine. 11. As the object of Probation of Offenders Act is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily curtail imprisonment in case there is default of fine. 11. I, accordingly, hold that while grating benefit to an offender for letting him off on probation of good conduct under the provisions of U. P. First Offenders Probation Act, 1938, or under the Probation Act, 1958, no such penalty of fine can be maintained. 12. I accordingly, at present instead of maintaining the sentence of imprisonment and penalty of fine, direct that the bail bonds of the applicants, who are on bail shall be deemed to have been cancelled and sureties shall be deemed to have been discharged and after their being taken into custody, they be released on probation of good conduct on their entering into a bond with two sureties of Rs. 1000/- each together with a bond of recognizance of like amount to appear and receive sentence when called upon during the period of one year and in the meantime to keep peace and be of good behaviour. In case, they are found to commit some offence during this period, they will be directed to appear and receive the sentence. The applicants may appear before the CJM, Varanasi together with a certified copy of this judgment for complying the direction as aforesaid. With the above direction for letting off the applicants on probation of good conduct, the revision is dismissed.