Appeal Dismissed Due to Lack of Evidence; Probation Release Set Aside for Non-Compliance with Probation Act.

The appeal against the acquittal of respondents Nos. (3) to (7) under Section 395 of the Penal Code was dismissed due to insufficient evidence. The release of respondents Nos. (1) and (2) on probation was set aside for non-compliance with Section 4(2) of the Probation of Offenders Act, 1958, as no probation officer's report was considered. The State's revision petition was allowed, and the Sessions Judge was instructed to review the probation officer's report before making a decision.

---

---

Issues Involved:
1. Acquittal of respondents Nos. (3) to (7) under Section 395 of the Penal Code.
2. Release of respondents Nos. (1) and (2) on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, without calling for the report of the probation officer.

Issue-Wise Detailed Analysis:

1. Acquittal of Respondents Nos. (3) to (7)
The State appealed against the acquittal of respondents Nos. (3) to (7) under Section 395 (Dacoity) of the Penal Code. The learned Government Pleader conceded that the evidence led by the prosecution did not establish the charge against these respondents under either Section 395 or Section 392. The Court agreed with this assessment, noting that the prosecution's evidence on the identity of these accused was unconvincing and vague. It was extremely doubtful whether these respondents participated in the crime. The learned Sessions Judge's conclusion that they were not guilty was supported by evidence, particularly regarding the lack of wrongful restraint as defined under Section 339 of the Penal Code. The Court emphasized the presumption of innocence in favor of these respondents, reinforced by the order of acquittal. Consequently, the appeal against their acquittal was rejected.

2. Release of Respondents Nos. (1) and (2) on Probation of Good Conduct
The State also objected to the order releasing respondents Nos. (1) and (2) on probation of good conduct under the Probation of Offenders Act, 1958, without calling for the report of the probation officer as required by sub-section (2) of Section 4 of the Act. The learned Government Pleader acknowledged that the prosecution did not establish the charge under Section 395 against these respondents either. However, it was contended that the learned Sessions Judge should have called for the report of the probation officer before releasing them on probation.

The Court discussed the scheme of the Probation of Offenders Act, 1958, highlighting that the Act aims to reform offenders instead of inflicting normal punishment. Section 4(2) mandates that before making any order under Section 4(1), the court shall take into consideration the report of the probation officer. The Court referred to the Supreme Court's observations in 'Ramji Missar v. State of Bihar' and 'Rattan Lal v. State of Punjab,' which emphasized that the calling for a report from the probation officer is a condition precedent for exercising the power under Section 6(1) of the Act. The Court held that the requirement of sub-section (2) of Section 4 is similarly mandatory.

The Court rejected the argument that the words "if any" in sub-section (2) of Section 4 suggest a discretionary nature. It concluded that the legislative command is that the court shall take into consideration the report of the probation officer, making the provision mandatory. The Court cited 'State of Mysore v. Saib Gunda,' which supported the view that the absence of a probation officer's report invalidates the release on probation.

Since the probation officer was not asked to provide a report before releasing respondents Nos. (1) and (2) on probation, the Court found non-compliance with the mandatory provision under sub-section (2) of Section 4. Consequently, the order passed by the learned Sessions Judge was set aside, and the revision petition filed by the State was allowed. The learned Sessions Judge was directed to consider the report of the probation officer before deciding the case on its merits.

---