JUDGMENT Hon’ble Vijay Kumar Verma, J.—This Appeal for enhancement of sentence has been preferred by the State of U.P. against the judgement and order dated 7.5.1983, passed by Shri Jai Singh, the then Judicial Magistrate, Maharajganj (Gorakhpur) in criminal case No. 148/82 (State v. Ram Chander) under Section 409, I.P.C., P.S. Kampiyarganj, Gorakhpur, whereby after convicting the accused-respondent under Section 409, I.P.C. and sentencing him to undergo imprisonment for six months, he was released on probation of good conduct on executing personal bond for Rs. 2,000/- and furnishing two sureties each in the like amount. 2. The accused-respondent Ram Chander was posted as Kurk Amin in Block Kampiyarganj, District Gorakhpur in the year 1975. An F.I.R. was lodged at P.S. Kampiyarganj on 11.12.1975 and a case under Section 409, I.P.C. at crime No. 266/75 was registered against him. The allegations made therein are that the accused realised Rs. 2,051.01 between the period 2.5.1975 to 15.6.1975 from the members through receipt No. 5625/30 to 5625/50, but he did not deposit that amount in Co-operative Bank, Anand Nagar (Farinda) Branch and he misappropriated that amount. The investigation was entrusted to Special Investigating Branch (Co-operative). After Investigation, charge-sheet was submitted on 24.3.1982 against the accused-respondent in the Court of Judicial Magistrate, Maharajganj (Gorakhpur) showing him to be absconder. 3. After taking cognizance, the accused was summoned for trial. He appeared in Trial Court on 24.2.1983. The Charge under Section 409, I.P.C. was framed against the accused on 7.5.1983, to which he pleaded guilty. In his statement also the accused confessed his guilt. Thereafter, the learned Judicial Magistrate vide impugned judgment convicted the accused Ram Chander under Section 409 I.P.C. and sentenced him to undergo imprisonment for six months, but instead of sending him to jail, benefit of Section 4 of the U.P. First Offenders Probation Act was extended and he was released on probation on executing a personal bond of Rs. 2,000/- and furnishing two sureties each in the like amount on the condition to keep peace and be of good behaviour during the period of two years. Hence, this Appeal for enhancement of sentence after seeking leave of the Court has been preferred by the State of U.P. 4. We have heard Mrs. N. A. Monis, learned A.G.A. for the State-appellant and Sri R.C. Yadav, learned Counsel for the respondent-accused. 5. Hence, this Appeal for enhancement of sentence after seeking leave of the Court has been preferred by the State of U.P. 4. We have heard Mrs. N. A. Monis, learned A.G.A. for the State-appellant and Sri R.C. Yadav, learned Counsel for the respondent-accused. 5. It was strenuously contended by the learned A.G.A. that benefit of U.P. First Offenders Probation Act could not be extended to the accused, because the offence under Section 409, I.P.C. is punishable with imprisonment for life and hence, the impugned order of releasing the respondent-accused on probation being wholly illegal is liable to be set-aside and keeping in view the heinousness of the offence, the accused-respondent should be adequately punished. 6. On the other hand, it was submitted by learned Counsel for the accused-respondent that having regard to the fact that misappropriated money was deposited by the accused, benefit of U.P. First Offenders Probation Act was rightly given to him by the learned Judicial Magistrate and hence this Court will not be justified in making interference in the impugned order. It was also submitted by the learned Counsel for the accused-respondent that the offence was committed about 32 years back and if this Court comes to the conclusion that benefit of probation of good conduct cannot be given to the accused, then lenient view in the matter of sentence be taken. 7. The accused-respondent had pleaded guilty to the charge under Section 409, I.P.C. and he was rightly convicted, but the learned Judicial Magistrate committed gross illegality in extending the benefit of Section 4 of U.P. First Offenders Probation Act to the accused, because the offence under Section 409, I.P.C. is punishable with imprisonment for life and hence, the provisions of the U.P. First Offenders Probation Act cannot be made applicable to this case. Relevant part of Section 4 of the U.P. First Offenders Probation Act, 1938 is reproduced below : "4. Relevant part of Section 4 of the U.P. First Offenders Probation Act, 1938 is reproduced below : "4. Power of Court to release certain offenders on probation of good conduct.—(1) When any person is convicted of an offence not punishable with death or transportation for life, 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, antecedents or physical and mental condition 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. From a bare perusal of Section 4 of the U.P. First Offenders Probation Act, it is clear that benefit of this Section cannot be extended where the offence is punishable with imprisonment for life and hence, in instant case also, the accused could not be released on probation of good conduct under Section 4 of the aforesaid Act, because the offence under Section 409, I.P.C. is also punishable with imprisonment for life. The matter of granting benefit of Probation of Offenders Act, 1958 came up for consideration before the Hon’ble Apex Court in the case of State of Gujarat v. V.S. Chauhan, AIR 1983 SC 359 . In that case, the accused was convicted under Sections 409, 466 and 471, I.P.C. and Section 5(1)(c) read with Section 5(2) of the Prevention of Food Adulteration Act. The High Court had extended the benefit of Section 4 of the Probation of Offenders Act to the accused. The State of Gujarat preferred Appeal in Hon’ble Apex Court. It has been held by the Hon’ble Apex Court that the Probation of Offenders Act is not applicable. Reference has been made to 1972(3) SCR 497 , wherein it has been held that the benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life. It has been held by the Hon’ble Apex Court that the Probation of Offenders Act is not applicable. Reference has been made to 1972(3) SCR 497 , wherein it has been held that the benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life. The provisions of Section 4 of Probation of Offenders Act, 1958 and Section 4 of U.P. First Offenders Probation Act, 1938 are similar. Therefore, having regard to the law laid down by the Hon’ble Apex Court in the case of State of Gujarat v. V.S. Chauhan (supra), in our considered view, the accused-respondent Ram Chander could not be released on probation of good conduct, but the learned Trial Magistrate in utter disregard of the mandatory provisions of law has released the accused-respondent on probation extending the benefit of Section 4 of U.P. First Offenders Probation Act. Hence, the impugned Order of releasing the accused-respondent on probation, being wholly illegal and without jurisdiction, has to be set-aside. 9. Argument on the quantum of sentence has also been heard. It was submitted by the learned Counsel for the respondent-accused that the case relates to the year 1975 and extending the benefit of Section 4 of U.P. First Offenders Probation Act, the accused was released on probation of good conduct in the year 1983. It was further submitted by learned Counsel that the respondent-accused is old person now and is in jail since 19.4.2007, hence lenient view in the matter of sentence should be taken. We have considered all aspects of the case. The embezzlement of meagre amount of Rs. 2,051.01 only is said to have been made by the respondent-accused in the year 1975 and he was released on probation in 1983. The accused has become old now. Therefore, keeping all these facts in view, sentencing the respondent-accused to undergo imprisonment for the period already spent by him in Jail and to pay the fine would meet the ends of justice. 10. In the result, this Govt. Appeal is hereby partly allowed. Order dated 7.5.1983, whereby the respondent-accused Ram Chander was released on probation of good conduct for a period of two years, is set-aside and the accused-respondent is hereby sentenced to undergo imprisonment for the period already spent by him in Jail and to pay the fine of Rs. 10. In the result, this Govt. Appeal is hereby partly allowed. Order dated 7.5.1983, whereby the respondent-accused Ram Chander was released on probation of good conduct for a period of two years, is set-aside and the accused-respondent is hereby sentenced to undergo imprisonment for the period already spent by him in Jail and to pay the fine of Rs. 1,000/- under Section 409 of Indian Penal Code. In default of payment of fine, the accused-respondent shall undergo imprisonment for one month. Office to return the Trial Court record along with a copy of this judgment expeditiously through special messenger to the Chief Judicial Magistrate, Gorakhpur, who shall send the conviction warrant of the accused-respondent in the light of this judgment. ————