JUDGMENT : Legality, propriety and correctness of the judgment and order, dated 26.07.2019, passed by the learned Sessions Judge, Goalpara in Crl. Appeal No. 13/2018, and the judgment and order dated 31.05.2018, passed in G.R. Case No. 695/2016, by the learned Chief Judicial Magistrate, Goalpara corresponding to Agia P.S. Case No. 37/2016, are challenged in this Criminal Revision Petition, under Section 401 readwith Section 397 of the Cr.P.C. 2. It is to be noted here that vide impugned judgment and order dated 31.05.2018, the learned Chief Judicial Magistrate has convicted the petitioner, Sri Nabadip Roy, under Section 380 IPC and sentence him to suffer S.I. for a period of 2 years and also to pay a fine of Rs. 2,000/-(Rupees two thousand) only, with default stipulation and vide judgment and order dated 26.07.2019, the learned Sessions Judge in Crl. Appeal No. 13/2018, has upheld the conviction of the petitioner in the said case. However, the learned Sessions Judge has modified the sentence of 2 years to 1 year, with fine of Rs. 2,000/-with default stipulation. 3. The factual background leading to filing of the present petition is briefly stated as under “On 31.03.2016, at about 3:40 p.m., the informant -Shri Ranjan Kumar was attending his duty at the wireless room of Agia Police Station. Then keeping his mobile phone (Samsung Model No. 7582, Sim No. 9859820734) in the said room he went to attend some official work to the STA room of Agia P.S. Then on returning there, he found his mobile missing. Then immediately, he reported the matter to other people, who were on duty on police station and on enquiry the mobile phone was recovered from the possession of the petitioner. He then lodged one FIR with the Officer-in-Charge, Agia Police Station. On receipt of one FIR to that effect, the O/C Agia P.S. has registered Agia P.S. Case No. 37/2016, under Section 379 IPC and started investigation which culminated in submission of Charge-Sheet against the petitioner under Section 379 IPC. Accordingly, the accused petitioner entered appearance before the learned Chief Judicial Magistrate. Then the learned Chief Judicial Magistrate has framed charge against the petitioner under Section 380 IPC and on being read and explained over the charge, the petitioner has pleaded not guilty to the same. Accordingly, the accused petitioner entered appearance before the learned Chief Judicial Magistrate. Then the learned Chief Judicial Magistrate has framed charge against the petitioner under Section 380 IPC and on being read and explained over the charge, the petitioner has pleaded not guilty to the same. Thereafter, examining the witness and also examining the accused under Section 313 Cr.P.C. and after hearing learned Advocates of both sides, the learned Chief Judicial Magistrate has convicted the petitioner under Section 380 IPC and sentenced him as aforesaid.” 4. Being highly aggrieved the petitioner preferred this present petition on following grounds:- (i) That, there is no evidence that the mobile was recovered from the possession of the petitioner (ii) That, no ingredients under Section 380 IPC is established against the petitioner and (iii) That, the Court below failed to appreciate the evidence in proper perspective and (iv) That, there is no direct or indirect evidence against the petitioner and as such he ought to have been given the benefit of doubt and (v) That, the learned Court below ought to have release the petitioner under the provisions of Offenders Act instead of sentencing him rigorous imprisonment for a period of 1 year and also to pay a fine of Rs. 2,000/- and (vi) That, the petitioner has been falsely implicated out of personal gross and therefore it is contended to set it aside. 5. I have heard Mr. H. Das, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor for the State/respondent. 6. Mr. H. Das, learned counsel for the petitioner submits that the petitioner was behind the bar for a period of 103 days and that the mobile phone, which was allegedly stolen by the petitioner, was recovered on the same date and that the petitioner is a married person having a daughter and that he is ready to pay the fine amount, but the benefit of Probation of Offenders Act under Section 3 of the Probation of Offenders Act may be extended to the petitioner as the same was not properly dealt with by the learned Court below. Mr. Das has referred two case laws:-(i) Munindra Gazamer Vs. State of Assam,: 2005 (3) GLT 380 and (ii) State of H.P Vs. Ishwar Dass and others, 1999 CRI.L.J. 3931, to make good of his submission. Mr. Mr. Das has referred two case laws:-(i) Munindra Gazamer Vs. State of Assam,: 2005 (3) GLT 380 and (ii) State of H.P Vs. Ishwar Dass and others, 1999 CRI.L.J. 3931, to make good of his submission. Mr. Das, however, has not challenged the conviction of the petitioner under Section 380 IPC. 7. On the other hand, Ms. S. Jahan, learned Addl. Public Prosecutor for the State/respondent No.1, submits that though the learned Sessions Judge has not discussed in the impugned judgment as to why the benefit of the Probation of Offenders Act was not extended to the petitioner, yet the learned Chief Judicial Magistrate, while convicting the accused has dealt with the same. Ms. Jahan further submits that the petitioner is a habitual offender and that the benefit of such benevolent act cannot be extended to him. Ms. Jahan, therefore, contented to dismiss the petition. 8. Having heard the submissions of learned Advocates for both the sides, I have carefully gone through the petition and the ground taken therein and also the impugned judgments and orders passed by the learned Court below. Also I have gone through the record of the learned Courts below. 9. Though, the learned counsel for the petitioner has not specifically challenge the finding of the learned Court below in convicting the accused under Section 380 IPC and upholding of the same by the learned Sessions Judge, Goalpara, yet, having carefully gone through the impugned judgments and orders and also the records of the learned Courts below, I find that both the learned Court below have rightly arrived at the finding of guilt of the petitioner under Section 380 IPC. In the given facts and circumstances on the record it cannot be said that the concurrent findings, so recorded by both the learned Courts below, suffers from no illegality or impropriety, as the same are based on the evidence on the record. 10. That as regard the submission of Mr. H. Das, learned counsel, for extending the benefit of provision of Offenders Act to the petitioner, I have carefully gone through the impugned judgment of the learned Chief Judicial Magistrate, Goalpara. 10. That as regard the submission of Mr. H. Das, learned counsel, for extending the benefit of provision of Offenders Act to the petitioner, I have carefully gone through the impugned judgment of the learned Chief Judicial Magistrate, Goalpara. And I find that before recording conviction, the learned Court below has dealt with the issue and held that considering the increasing incident of theft in the State, which is an offence against property and more so, from inside the police station, which is supposed to be institution ensuring the protection, safety and security of life and property of citizen, and therefore, deemed it not fit to extend the benefit of the Probation of the Offenders Act, 1958 here in this case. But, having examined the reason so assigned in declining to extend the benefit of the benevolent provision of the Probation of the Offenders Act to the petitioner appears to be far from satisfactory. The learned Court below also failed to appreciate the statement, objects and reasons behind enacting the benevolent provisions in the Probation of Offenders Act, 1958. 11. It is to be noted here that the said piece of legislation was enacted on an increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self reliance member of the society without subjecting him to the deleterious effect of jail life. Besides, as provided in Section 3 and 4 of the Act, the Court must have regard to the circumstances of the case, including the nature of the offence and the character of the offender in both the Sections. But, the learned Chief Judicial Magistrate, while considering the issue has not considered the circumstances of the case, the nature of the offence and the character of the offender. Besides, the judgment of the learned Sessions Judge dated 26.07.2019 is totally silent as to why the benefit of Probation of Offenders Act was not extended to the petitioner. 12. Section 3 of the Probation of the Offenders Act provides for power of court to release certain offenders after admonition. Besides, the judgment of the learned Sessions Judge dated 26.07.2019 is totally silent as to why the benefit of Probation of Offenders Act was not extended to the petitioner. 12. Section 3 of the Probation of the Offenders Act provides for power of court to release certain offenders after admonition. It provides that when any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case, including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. 13. In the case in hand, though the learned Addl. Public Prosecutor submits that the petitioner is a habitual offender, yet there is nothing on the record to substantiate such a submission. It appears that the petitioner has committed theft of one second hand mobile phone from the wireless room and it was recovered on the same day. Besides, no previous conviction is proved against him and nothing is there on record to show his criminal antecedent. 14. It is being submitted by the learned counsel for the petitioner that the petitioner is a married person having a daughter and moreover, he was behind the bar for 103 days. In the conspectus of above facts and circumstances, this Court is of the considered opinion that this is a fit case where the privilege of Section 3 of the Probation of Offenders Act can be extended to him. 15. I have carefully gone through the case laws (i) Munindra Gazamer (supra) and (ii) Ishwar Dass (supra) and I find that the ratio laid therein supported the submission of Mr. H. Das, learned Counsel for the petitioner. 15. I have carefully gone through the case laws (i) Munindra Gazamer (supra) and (ii) Ishwar Dass (supra) and I find that the ratio laid therein supported the submission of Mr. H. Das, learned Counsel for the petitioner. In the case of Ishwar Dass (supra), the appellant was convicted under Section 380 IPC and the benefit of Section 3 of the Probation of Offenders Act was extended to him. 16. In the given facts and circumstances, the sentence, so imposed upon the petitioner to undergo SI for 2 years and also to pay a fine of Rs. 2,000/-in default S.I. for 15 days by the learned Chief Judicial Magistrate, Goalpara and upheld and modified by the learned Sessions Judge to undergo S.I. for a period of 1 year and to pay a fine of Rs. 2,000/-in default S.I. for 15 days stands set aside. 17. The petitioner is directed to appear before the learned Chief Judicial Magistrate, Goalpara within a period of two weeks from today and on his appearance the learned Court below shall release him as per provisions of Section 3 of the Probation of Offenders Act after due admonition. Accordingly, this revision petition is allowed to the extent indicated above. 18. Send down the record of the learned Court below immediately.