JUDGMENT 1. - This revision petition though having been filed under Section 397 read will Section 401, Cr.P.C. but, at the time of arguments, prayed for treating it having been filed under Section 11(4) of the Probation of Offenders Act, 1958 (for short, `the Act'), arises out of an order/judgment of the Chief Judicial Magistrate, Sawai Madhopur, by which he refused to release the petitioners on probation under Section 3/4 of the Act read with Section 360, Cr.P.C. while holding them guilty of the offence punishable under Section 225(B), IPC, but, sentenced each of them to undergo six month's RI with a fine of Rs. 500/- (in default, further 15 day's SI). 2. In a criminal complaint by Abdul Samad before Addl. Judl. Mag. No. 2, Sawai Madhopur alleging offence of Sec. 477, IPC against the petitioners, they were summoned. They moved a bail petition on 25.3.1983 through their counsel but, thereon, no order was passed & contrarily a cr. case for offence punishable under Section 225-B, IPC, was ordered by the Court to be registered against the petitioners observing that they had run away from the custody of the Court. Thereupon, the said case was registered and tried by the Chief Judicial Magistrate, Sawai Madhopur who, after due trial, and hearing the parties, vide his judgment dated 4.2.1991, convicted & sentenced under Section 225-B, IPC, as indicated above. And, he refused the prayer of the petitioners to grant probation to them, on the ground that since they were in the custody of the court and had run away therefrom, so, it is not a case to invoke jurisdiction under Sec. 3/4 of the Probation of Offenders Act read with Sec. 360, Cr.P.C. 3. Pertinently to mention that the petitioners have already preferred a criminal appeal before the court-below against their conviction & sentence imposed by the trial Court (Chief Judicial Magistrate). And, this revision petition is confined to the grievance against the refusal by the trial Court in the matter of grant of probation to the petitioners. 4. At the very threshold of the arguments, the learned Public Prosecutor raised a preliminary objection by contending that the present revision petition is not maintainable because, the impugned judgment of the Chief Judicial Magistrate is appealable inasmuch as the petitioners have already preferred a criminal appeal before the Sessions Judge, Sawai Madhopur and the same is pendente. 5. 4. At the very threshold of the arguments, the learned Public Prosecutor raised a preliminary objection by contending that the present revision petition is not maintainable because, the impugned judgment of the Chief Judicial Magistrate is appealable inasmuch as the petitioners have already preferred a criminal appeal before the Sessions Judge, Sawai Madhopur and the same is pendente. 5. Shri K.K. Sharma associated with his colleague, Shri Kedar Solanki, appearing on behalf of the petitioners. 6. Firstly the learned Public Prosecutor contended that sub-section (4) of Section 401, Cr.P.C. provides that where an appeal lies and is not brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. As against the above contention, Shri K.K. Sharma vociforcely argued that the provisions contained in sub-section (4), of S. 401 Cr.P.C., are not applicable to the appeal or revision under the Act because, as he urged, unless the right of appeal or revision as has been conferred by the Act, is barred, no such implied barring can be inferred. Having considered the above contentions. I am of the view that the contention of Shri K.K. Sharma has merit because, no such provision as has been provided by sub-section (4) of S. 401, Cr.P.C. has been contemplated nor there was any such intention of the Legislature while framing or enacting the provisions with regard to an appeal or revision under Section 11 of the Act, otherwise there would have been similar provisions as contained in Section 401(4). Cr.P.C. under the Act also but in the Act, no bar has been contemplated upon the exercise of the powers of the High Court in revision till the remedy of appeal is availed of. That being so, in 1972 RLW 415 (cited by Shri K.K. Sharma), this Court held that operation of the Code of Criminal Procedure has been excluded by non-obstante clause in sub-section (2) of Sec. 11 of the Act, and it has been laid down that the Code of Criminal Procedure is merely available for determining the court of appeal under its provisions and other provisions thereof are clearly excluded. 7. In State of U.P. v. Salezar (1984 Cr. 7. In State of U.P. v. Salezar (1984 Cr. L.J. 315) the State filed a criminal appeal under Section 377, Cr.P.C. and aggrieved by that part of the judgment & order of the appellate Court below whereby benefit of Section 4 of the Probation of Offenders Act, 1958 was given. In the case cited, supra, the Division Bench of the Allahabad High Court held that such an order aggrieved by the State in the case was revisable under sub-section (4) of Section 11 of the Act. This Court in State v. Gani Mohd. (1989(1) Crimes p. 483) while agreeing with the view derived from the decision in State of U.P. v. Salezar (supra) in addition to two other Division Benches decision cited therein, held that the power of revision by the High Court was ensured by sub-sec. (4) of Sec. 11 of the Act (see last two lines of para 4 at p. 486 - 1989(1) Crimes). 8. Thus, having been benefited by the enlightments derived from the decisions (supra), Section 401 (1) Cr.P.C. cannot be made applicable defeat the revisional power of the High Court contemplated and ensured by sub-sec. (4) of See. 11 of the Act. 9. Second limb of his arguments on the preliminary objection by the learned Public Prosecutor is that according to sub-section (2) of Section 11 of the Act, when an order U/s 3 or 4 thereof is made by any court trying an offender (other than the High Court), an appeal shall lies to the Court to which appeals ordinarily lies from the sentence of the former court. Contrarily, firstly Shri K.K. Sharma argued that, an order refusing to grant probation under Sections 3 & 4 of the Act read with Sec. 360, Cr.P.C. albeit is appealable under Sec. 11 of the Act but, even if an appeal is provided against the refusal order, still this Court has ample powers to set aside such an order while exercising revisional powers conferred by sub-sec. (4) of Sec. 11 of the Act. 10. Having considered the rival contentions and browsed through the provisions contained in the Act. (4) of Sec. 11 of the Act. 10. Having considered the rival contentions and browsed through the provisions contained in the Act. I am of the view that as rightly pointed out by Shri K.K. Sharma, Section 11 (2) of the Act contemplates the forum of appeal by laying down an appeal shall lie to the court to which appeals normally lies to the court against the sentences, but it does not, in any manner, put any bar or restriction upon the revisional powers of the High Court conferred by Section 11 (4) of the Act. Before concluding on this score. I may reiterate that a request was made by the petitioners for extending them benefit of probation under section 4 of the Act but the same was rejected in the case at hand. That being so, the order of trial Magistrate in refusing to extend the benefit of probation under the Act is certainly covered by Section 4 thereof as they have already been dealt with by the trying Magistrate under those sections, inasmuch as the order of extending and refusing such a benefit under Sections 3 or 4 of the Act both, are covered by those sections. And, any person who has been declined the benefit under Sections 3 & 4 of the Act, may either appeal under sub-section (2) of Sec. 11 or file a revision petition under sub-section (4) of Sec. 11 of the Act That being so, I am totally agreed to the contention of Shri K. K. Sharma that the very fact that both, the High Court so also the Sessions Court have got power to interfere, shows that it cannot be said that there is any bar that unless the remedy of appeal is availed of, revision would not be admissible and maintainable. 11. In the case at hand, as noticed above, and as conceded by Shri K. K. Sharma on behalf of the petitioners, which could not have been controverted by the Public Prosecutor, in a criminal appeal pending before the Sessions Judge, Sawai, Madhopur, the petitioners have aggrieved by their impending conviction & sentence passed by the trial Magistrate under Section 225-B, IPC, and they have not assailed that part of the order whereby the trial Magistrate refused to grant them benefit of probation under Section 3 or 4 of the Act. In the present revision petition, only part of that order which is sought to be revised is with regard to refusal to grant probation to the petitioners. And, under Sections 11 (2) and/or 11 (4) of the Act, an appeal or revision would lie only with regard to the order of refusal and grant of probation and the Court while exercising jurisdiction under Section 11 (2) or 11 (4) of the Act is confined to the circumscribed limit of judging the propriety of the order of probation. I lend support to the view taken by the Division Bench of the Patna High Court in Baidyanath Prasad v. Awadesh Singh (AIR 1964 Patna p. 358) . 12. It is trite law that powers of the High Court in exercise of its revisional jurisdiction are very wide and any order can be passed by the High Court appropriate in the circumstances of the cases subject to the restriction that an order of acquittal cannot be converted into that of conviction. It is only, therefore, when an application in revision is allowed by this Court against the order of acquittal at the instance of a private party that the High Court is obliged in law to remand the case. But, in all other circumstances, this Court can pronounce on the correctness or otherwise of the order of the Magistrate under Section 3 or 4 of the Act and in other words, it is competent to pass any order that might be passed by a court of appeal, as has been laid down by the Division Bench of the Patna High Court in Baidyanath Prasad v. Awadesh Singh (AIR 1964 Patna p. 358) . 13. Having benefited by the enlightments deprived from the above quoted principles of law it is quite clear that while exercising revisional jurisdiction, the High Court is competent to pass an order that might be passed by a court of appeal So, even if an appeal is provided against the order and the same is pending then also, the High Court can exercise its revisional jurisdiction and pass orders after examining the correctness of the order passed by the subordinate court. In this view of the matter, the preliminary objection raised by the learned Public Prosecutor is without any substance and deserves to be over-ruled. Ordered accordingly. 14. In this view of the matter, the preliminary objection raised by the learned Public Prosecutor is without any substance and deserves to be over-ruled. Ordered accordingly. 14. Shri K.K Sharma then added that the learned trial Magistrate erred in exercise of its jurisdiction by not releasing the petitioners on probation under Section 3 or 4 of the Probation of Offenders Act, because the accusation against them is not covered by exceptions contemplated in Section 3 or 4 of the Act. 15. While considering the point as to whether an accused who has been found guilty can be given benefit of Section 4 of the Probation of Offenders Act the Court has to see in the facts & circumstances of the case including the nature of the offence, besides antecedents & character of the offender. If the Court forms an opinion that the accused while holding him guilty, is entitled to the benefit of probation then it has been made obligatory on the part of the subordinate court, instead of sentencing an accused, at once to any punishment, direct that he would enter into a bond. It is established law that while considering the question of benefit of probation under Section 4 of the Probation of Offenders Act, the Court must exercise its jurisdiction keeping in view the object of the Act. Exercise of powers under this Section though is discretion but it has to be exercised judiciously. In the case at hand, the court-below refused to extend the benefit of probation merely on the ground that the petitioners had run away from the court premises. While rejecting the prayer of the petitioners for grant of probation, the trial Magistrate further failed to consider that the case in which the bail petition had been moved on behalf of the petitioners, was instituted on a criminal complainant alleging the commission of offence punishable under Section 477, IPC, and in that case too, only summons had been issued to the petitioners by the Court. That apart, the trial Magistrate further eschewed significant feature of the case as irrelevant for, that no action has been taken against the petitioners because the matter has since long been arrived at a compromise between Abdul Samad & the petitioners. That apart, the trial Magistrate further eschewed significant feature of the case as irrelevant for, that no action has been taken against the petitioners because the matter has since long been arrived at a compromise between Abdul Samad & the petitioners. Thus viewed, on the facts and circumstances of the case including the nature of the offence it was a fit case in which the benefit of Section 4 of the Probation of Offenders Act, should have been granted to the petitioners. The learned counsel added, that grant of probation should not be refused/declined on technical ground. The object of the Probation of Offenders Act is that in a case in which the matter is not of serious nature, the offender should not normally be sent to jail. Similar statement of object has been contemplated while framing the provisions of Section 360, Cr.P.C. 16. The aforesaid contention of Shri K.K. Sharma has some force because, in the instant case, the learned trial Magistrate has not applied his mind and without assigning "special reasons" declined to grant the benefit of probation to the petitioner on a whimsical ground. 17. Under Section 361, Cr.P.C. it has been made obligatory on the part of the Court trying an accused to give special reasons for not extending the benefit of probation to the offender who has been held guilty. Special reasons have been defined by their Lordships of the Apex Court in Bishandev v. State of W.B. ( AIR 1979 SC 964 ). If the case of the present petitioner is considered in the light of the decision (supra), then definite, the petitioners are entitled for the benefit of probation because, petitioner, Jilani Beg is said to be Sarpanch of a village Panchayat and he has been elected by the electorates of the Panchayat. This fact could not have been controverted by the learned Public Prosecutor. So, the petitioner being a Sarpanch it cannot be said that the antecedents and character of the petitioners are of any shady past disentitling them to the grant of probation rather their case stands fully covered by the decision of the Supreme Court (supra). 18. In the result, this revision petition is allowed and only part of the order dated 4-2-1991 by which the Chief Judicial Magistrate, Sawai Madhopur refused to grant probation to the petitioners under the Act, is set aside. 18. In the result, this revision petition is allowed and only part of the order dated 4-2-1991 by which the Chief Judicial Magistrate, Sawai Madhopur refused to grant probation to the petitioners under the Act, is set aside. Since criminal appeal filed by the petitioners is stated to be pending before the Sessions Judge, Sawai Madhopur, I deem it necessary to order that in case the appellate Court uphold the petitioners guilty then instead of passing any sentence, the petitioners be ordered to be released on probation provided each of them furnishes a personal bond of Rs. 2,000/- with one surety in the like amount to the satisfaction of that Court with a direction to keep peace and be of good behaviour for a period of six months under Section 4 of the Probation of the Offenders Act on his executing the aforesaid bonds to appear and receive sentence when called upon during this period. 19. A copy be sent to the Sessions Judge, Sawai Madhopur forthwith, besides a copy to the trial Magistrate. *******