ORDER : Criminal Revision No.1210 of 2015 has been preferred by the accused/convicts against the judgment dated 26.06.2015 passed in Criminal Appeal No.39 of 2010. 2. Nitesh Kumar Mishra, Madan Mohan Tiwary and Basant Tiwary were convicted and sentenced to S.I for six months under section 323/34 of the Indian Penal Code and S.I for one month under section 341/34 of the Indian Penal Code by the judgment dated 19.01.2010 in G.R. Case No.1283 of 2005/Tr. Case No.333 of 2010. 3. The appeal preferred by Nitesh Kumar Mishra against the judgment of his conviction in Tr. Case No. 333 of 2010 was allowed. Criminal Appeal No.39 of 2010 qua the appellant, namely, Madan Mohan Tiwary and Basant Tiwary was partly allowed and their conviction under section 341/34 of the Indian Penal Code was set-aside. Further, these convicts were granted benefit under section 4 of the Probation of Offenders Act and the appellate Court directed their release instead of requiring them to serve the sentence on their furnishing bond of Rs.5,000/- each and on the condition to maintain peace and good behaviour for one year. 4. Criminal Revision No.1751 of 2017 has been filed by Binod Lodhi on whose written complaint Sonari P.S. Case No.58 of 2005 was lodged against Madan Mohan Tiwary, Basant Tiwary, Nitesh Kumar Mishra and Brij Kumar Mishra. This petitioner is aggrieved of the judgment in Criminal Appeal No.39 of 2010 by which Nitesh Kumar Mishra has been acquitted and the Criminal Appeal qua Madan Mohan Tiwary and Basant Tiwary has been partly allowed. 5. Since both the criminal revision petitions arise out of a common judgment dated 26.06.2015 passed in Criminal Appeal No.39 of 2010, these revision petitions are heard together and disposed of by the present order - for the sake of convenience the petitioners in Criminal Revision No.1210 of 20 15 shall be referred to as "accused" and in Criminal Revision No. 1751 of 2017 as "informant". 6. Mr. Arun Kumar Pandey, the learned counsel for the accused submits that there is no eyewitness to the occurrence and the allegation of sudden provocation is patently absurd. The accused who suffered injury at the hands of the prosecution party and in the incident teeth of Madan Mohan Tiwary were broken have instituted a counter case which would itself show that the accused were falsely implicated in this case. The accused who suffered injury at the hands of the prosecution party and in the incident teeth of Madan Mohan Tiwary were broken have instituted a counter case which would itself show that the accused were falsely implicated in this case. The learned counsel would further submit that the ingredients of section 323 of the Indian Penal Code are not made out and while so the judgment in Criminal Appeal No. 39 of 2010 is liable to be set-aside. 7. Ms. Rishi Bharti, the learned counsel for the petitioner in Criminal Revision No. 1751 of 2017 has relied on the judgment in "Public Prosecutor v. Nalam Suryanarayana Murthy" 1973 Cri. LJ 1238 and MCD v. State of Delhi and Anr.'' (2005) 4 SCC 605 , to contend that benefits under section 4 of the Probation of Offenders Act cannot be given to an accused on mere asking. 8. On the basis of a written complaint of Binod Lodhi, a First Information Report was lodged on an allegation that the accused armed with iron rod and bhujali assaulted Nawal Lodhi, Binod Lodhi and Ramsila Devi and caused injuries to them. On completion of the investigation in Sonari P.S. Case No.58 of 2005 which was registered under sections 323, 341, 324/34 of the Indian Penal Code, finding a prima-facie case against the accused a charge-sheet was submitted for the offence under sections 323 and 341/34 of the Indian Penal Code and Madan Mohan Tiwary, Basant Tiwary and Nitesh Kumar Mishra have faced the trial for committing the aforesaid offences - one of the accused, namely, Brij Kumar Mishra has absconded. In the trial, the prosecution has examined seven witnesses out of whom five are the eyewitnesses. PW2-Nawal Lodhi, PW4-Binod Lodhi and PW5-Ramsila Devi are the injured eyewitnesses. In a criminal trial an injured witness is accorded a special status for the reason that his evidence lends insurance to the Court that he being an injured person was present at the place of occurrence. 9. From the evidence of PW7-Dr. Diwakar Hansda who has come to the witness box to prove the injury reports, I find that the following injuries were seen by him on: Nawal Lodhi Lacerated wound: 1 cm x 0.2 cm, into muscle deep on the upper lip. 9. From the evidence of PW7-Dr. Diwakar Hansda who has come to the witness box to prove the injury reports, I find that the following injuries were seen by him on: Nawal Lodhi Lacerated wound: 1 cm x 0.2 cm, into muscle deep on the upper lip. Binod Lodhi Swelling : 2 cm x 2 cm on the left infra of oribital region Ramsila Devi Lacerated wound : 2 cm x 0.2 cm x 0.1 cm deep on the forehead 10. The injuries were caused within six hours of their examination and the weapon used was hard and blunt substance. 11. The learned trial Judge has believed testimony of the prosecution witnesses and on appreciation of the materials laid during the trial came to a finding that the accused were liable to be convicted under sections 341/34 and 323/34 of the Indian Penal Code. 12. The appellate Court has reappreciated the evidence as it is entitled to and come to a finding that Madan Mohan Tiwary and Basant Tiwary were rightly convicted and sentenced to S.I for six months, under section 323/34 of the Indian Penal Code. The accused lodged a case against the prosecution party vide G.R. Case No.1284 of 2005 and the said case was pending at the time of the judgment in Tr. No.333 of 2010. 13. From the judgment in Tr. No. 333 of 2010, I find that the accused setup a defence of false implication on the basis of the counter case and injury reports (para-9, internal page-4). As understood in law a case and counter case in respect of the same occurrence establish presence of the accused at the place of occurrence and from injury to both sides it can be reasonably inferred that the accused had participated in the occurrence. What would be the outcome of G.R. Case No.1284 of 2005 is a matter of trial, but on a plea that the accused have also suffered injuries and filed a counter case the witnesses who have undergone, the rigors of cross-examination during the trial in Tr. No.333 of 2010 cannot be disbelieved. What would be the outcome of G.R. Case No.1284 of 2005 is a matter of trial, but on a plea that the accused have also suffered injuries and filed a counter case the witnesses who have undergone, the rigors of cross-examination during the trial in Tr. No.333 of 2010 cannot be disbelieved. The learned appellate Court has appreciated the materials on record and though I may not agree with all the reasons for acquittal of Nitesh Kumar Mishra, I am not inclined to go into the justification of the reasons assigned by the appellate Court and would not interfere with the acquittal of Nitesh Kumar Mishra. 14. Criminal Revision No.1210 of 2015 is dismissed. 15. However, insofar as the benefit under section 4 of the Probation of Offenders Act has been extended to Madan Mohan Tiwary and Basant Tiwary, I find that the appellate order is seriously flawed and requires interference by this Court. The learned appellate Court has concluded the discussions on the evidences laid during the trial by granting benefit of doubt to Nitesh Kumar Mishra; found conviction and sentence of Madan Mohan Tiwary and Basant Tiwary correct, however, without calling a report from the Probation Officer and without hearing the informant has extend the benefit under section 4 of the Probation of Offenders Act to Madan Mohan Tiwary and Basant Tiwary on executing a bond of Rs.5,000/- each and on the condition to maintain peace and good behaviour. 16. Under section 4(1) of the Probation of Offenders Act the Court is required to take into consideration the circumstances of the case, among which, "the nature of offence and the character of the offenders" would be the overriding considerations. The benefits under section 4 of the Probation of Offenders Act are subject to the limitations laid down under section 4 and the legislative intendment would appear from the expression 'may' used in section 4. 17. In “MCD v. State of Delhi" (2005) 4 SCC 605 the Hon'ble Supreme Court has observed as under : "22. We have already reproduced Section 4 of the POB Act. It applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. We have already reproduced Section 4 of the POB Act. It applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. The only limitation imposed by Section 6 is that in the first instance an offender under twenty-one years of age, will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can only he released on probation good conduct under this section when the court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The section itself clear that before applying the section, the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot he released in view of Section 4 of the POB Act. The Court is hound to call for a report as per Section -4 of the POB Act but the High Court has failed to do so although the Court is not bound by the report of the probation officer but it must call for such a report before the case comes to; its conclusion. The word "shall" in sub-section (2) of Section 4 is mandatory and the consideration of the report of the probation officer is a condition precedent to the release of 'the accused as reported in the case of State v. Naguesh G. Shet Govenkar and a release without such a report would, therefore, be illegal. 23. In the case of Ram Singh v. State of Haryana, a Bench of two Judges of this Court in para 16 of the judgment observed as under : (SCC p. 918) "16. Counsel for the appellants invoked the application of the Probation of offenders Act. 23. In the case of Ram Singh v. State of Haryana, a Bench of two Judges of this Court in para 16 of the judgment observed as under : (SCC p. 918) "16. Counsel for the appellants invoked the application of the Probation of offenders Act. Sections 4 and 6 of the Act indicate the procedure requiring the court to call for a report from the probation officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the court can pass an order under the Probation offenders Act. " 24. In the case of R. Mahalingam v. G. Padmavathi the Court observed as under : ''if any report is filed by the probation officer, the court is bound to consider it. Obtaining such a report of the probation officer is mandatory since sub-section (1) of Section 4 says that the court shall consider the report of the probation officer. Words ‘if any' do not mean that the court need not call for a report from the probation officer. The words 'if any' would only cover a case where notwithstanding such requisition, the probation officer for one reason or other has not submitted a report. Before deciding to act under Section 4(1), it is mandatory on the part of the court to call for a report from the probation officer and if such a report is received, it is mandatory on the part of the court to consider the report. But if for one reason or the other such a report is not forthcoming, the court has to decide the matter on other materials available to it. In the instant Case, the Magistrate passed order releasing the accused on probation without taking into consideration their character. Held, the requirement of Section 4(1) was not fulfilled and therefore the case remanded.” 18. Before the trial Magistrate a plea for extending the benefit under sections 3 & 4 or the Probation of Offenders Act was raised which was opposed by the State and the learned trial Judge was of the opinion that the benefit under the Probation of Offenders Act should not be extended to these convicts. This being the fact appearing from the judgment in Tr. This being the fact appearing from the judgment in Tr. No.333 of 2010, it was moreso required by the appellate Court to follow the mandate in law and after bestowing his considerations to the materials laid before him should have passed a reasoned order. The judgment in Criminal Appeal No. 39 of 2010 insofar as it extends the benefit under section 4 of the Probation of Offenders Act to Madan Mohan Tiwary and Basant Tiwary is bereft of reasons, does not take into consideration the requirements in law and was passed without any enquiry and, therefore, to that extent the judgment dated 26.06.2015 in Criminal Appeal No. 39 of 2010 is set-aside. 19. Criminal Revision No.1751 of 2017 is allowed to the extent indicated hereinabove and the matter is remitted back to the appellate Court for a fresh consideration - whether the accused, namely, Madan Mohan Tiwary and Basant Tiwary who are convicted and sentenced to S.I for six months under section 323/34 of the Indian Penal Code can be granted benefit under section 4 of the Probation of Offenders Act. 20. Criminal Revision No.1751 of 2017 is partly allowed, to the aforesaid extent. 21. Let a copy of the order be transmitted to the Court concerned through "FAX".