S. Talapatra, J.

(1) Heard Mr. B. N. Majumder, learned Amicus Curiae, appearing for the petitioner as well as Mr. R. C. Debnath, learned Special PP appearing for the State-respondent.

(2) By this petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Cr. P. C. in short), the judgment and order dated 03. 08. 2004 passed by the learned Sessions Judge, West Tripura, Agartala in Crl. Appeal No. 8 (1) of 2004 has been challenged.

(3) The judgment and order dated 16. 12. 2003 passed by the learned Judicial Magistrate, 1st Class, Agartala, West Tripura in GR Case No. 318 of 2002 was questioned in the appeal as filed by the convict herein in the Court of Sessions Judge and the said appeal was dismissed on affirming the finding of conviction under Section 379, IPC.

(4) For appreciation, the Prosecution case, bereft of unnecessary details be noticed as under: 813 pieces of 80 mm dia GI pipes were stored inside the Microwave Station, Lichubagan by the BSNL and on 04. 05. 2002 during the periodical verification it was detected that 286 Nos. of GI pipes were missing from the premises of the Microwave Station. One K. K. Roy, the Divisional Engineer of the BSNL informed the occurrence in writing to the Officer-in-Charge, East Agartala PS and on the basis of that complaint East Agartala PS Case No. 85 of 2002 under Section 379 of the Indian Penal Code (IPC in short) was registered.

(5) In the course of investigation, the police recovered some of the stolen pipes and after completion of the investigation chargesheet was filed against six accused persons, namely,

(1) Ranjit Gope,

(2) Puran Ghosh,

(3) Samir Ghosh,

(4) Khokan Debnath, and

(5) Manik Debnath under Section 379 of the IPC showing Ranjit Gope as the absconder.

(6) On receipt of the charge-sheet, the case was transferred to the Court of the learned Judicial Magistrate, 1st Class, Agartala, West Tripura for disposal in accordance with law. The proceeding against said Ranjit Gope was adjourned sine die as his attendance could not be procured by the Court. Thereafter, the charge was framed on the basis of the materials available on the records under Section 379 of the IPC against the accused persons for commission of offence punishable under Section 379 of the IPC along with an additional charge against the convict herein for commission of offence punishable under Section 411 of the IPC on his surrender. The accused persons pleaded not guilty against the charge and claimed to be tried.

(7) To bring home the charge the Prosecution examined as many as 7 witnesses. On the other hand, no witness was adduced by the defence but from the statement as recorded under Section 313 of the Cr. P. C. and from the trend as reflected in the cross-examination, it would appear that the defence case was of the total denial.

(8) After appreciation of the evidence, learned trial Court held that the petitioner, Puranlal Gope and Sadhu Gope were guilty of commission of offence punishable under Section 379 of the IPC. In addition thereto the present accused person was found guilty for commission of offence punishable under Section 411 of the IPC. Accordingly, all the accused persons, namely, Ranjit Gope (the convict herein), Puran Lal Gope and Sadhu Gope were sentenced to suffer rigorous imprisonment (RI) for six months for commission of offence punishable under Section 379 of the IPC. The learned Judicial Magistrate also sentenced Ranjit Gope to suffer three months RI for commission of offence under Section 411 of the IPC. However, the learned trial Court acquitted the other two accused persons, namely, Manik Debnath and Khokan Debnath from the charge and against the judgment and order dated 16. 12. 2003 though the appeal was filed by the convict herein and others, but on re-appreciation of the evidence, learned appellate Court i. e. the Court of Sessions, West Tripura, Agartala affirmed the judgment and order of sentence dated 16. 12. 2003.

(9) Mr. Nandi Majumder, learned counsel for the petitioner with sufficient vehemence contended that appreciation of evidence as carried out by the learned trial Court as well as the learned appellate Court is palpably wrong inasmuch as that there is no legal evidence against the convict herein to hold the charge under Section 379 of the IPC proved with reasonable shred of doubt. In support of his contentions, he the cross examination of the PW-1, namely, Shri Tapas Bhattacharjee, who denied in his cross examination that he saw on 10. 05. 2002, the GI pipes from the Microwave Station were being removed by Dhananjay Debbarma, Dipankar Debnath, Dulal Sarkar (Bagha), Sahadev Das, Selim and Chandan Das. When attention of the witness was drawn to his previous statement, such statement was found (Ext. D/1). One Pranesh Chakraborty was examined as PW-2 by the prosecution, at the relevant point of time who was working in the Microwave Station as the JTO. He stated that on 04. 05. 2002 when the physical verification of the stock was conducted it was found that 286 Nos. of GI pipes were missing from the stock at Lichubagan Microwave Station. After about a month when he was called by the police he found the stolen pipes with mark N. E. Zone. One Laxmi Das, a resident of Salbagan, was examined as PW-3 who stated that her son Nepal Das purchased four Nos. of GI pipes from the accused Ranjit Gope, Puran Gope and Sadhu Gope on payment of Rs. 3,200/ -. Subsequently, they came to know that the said pipes were stolen pipes and they immediately gave information at the East Agartala PS. Accordingly, the police came to their house and seized the pipes by preparing a seizure list (Exbt. 2). She also identified the accused Puran Gope and Sadhu Gope in the dock. PW-4, namely, Sri Utpal Ch. Bhoumik, a Junior Telecom Officer of the BSNL deposed before the court that on 04. 05. 2002 he was present when the physical verification of the stock was carried out. During verification it was located that 286 Nos. of GI pipes were taken by the unknown miscreants. The Divisional Engineer, Sri K. K. Roy, informed the occurrence by a written ejahar to the East Agartala PS. On 27. 06. 2002, on receipt of information from the police station, the PW-4 along with Dilip Debnath and Badal Debbarma went to Ghoshpara with the IO and other staffs of the PS in the house of the petitioner. PW-4 found that the petitioner used the stolen pipes as the beam of the hut. Those pipes were bearing marks of the NE Zone and the dia was exactly the same of the pipes those were missing from the Microwave station at Lichubagan. The pipes were seized from the house of Ranjit Gope on preparing the seizure list (Exbt. 3). During the cross examination, he stated that at the relevant point of time he was in-charge of the store. But he denied the suggestion that no pipe was stolen from the store as alleged. He also identified the seized pipes in the Court. One Nepal Das who informed the police about purchase of the stolen pipes was examined by the prosecution as PW-5 who stated that when he learnt that those were stolen pipes, he immediately informed the police station. He categorically stated that he purchased 4 Nos. of GI pipes from the convict herein. Sadhu Gope and Puran Ghosh. He denied the suggestion that the villagers gave the information to the police station on suspicion that the PW-5 had collected the stolen pipes. The Divisional Engineer, BSNL, Sri K. K. Roy was examined as PW-6 who stated that on 03. 05. 2002 the JTO (Store) of Lichubagan informed him that some GI pipes from the store of Lichubagan was missing. Those pipes were of 80 mm dia. The PW-6 informed the superior officer at Silchar and thereafter the physical verification of GI pipes was carried out and it was found that 286nos. of GI pipes were missing from the store. The PW-6 stated that he informed the East Agartala PS by filing a written ejahar. Sri U. C. Bhowmik wrote the ejahar (Exbt. 1). He further admitted in the examination in chief that he did not mention about the special mark of the department in the pipes. The PW-7 is the Investigating Officer who depicted how he carried out the investigation after the same was entrusted to him. He stated in the Court that he raided the house of the convict herein and from his house GI pipes were recovered. Sri Utpal Ch. Bhowmik, PW-4, identified those stolen pipes. In the cross examination he admitted that he did not seize the stock register of the store to show that any GI pipes were stolen. He also did not verify the stock register.

(10) No effort was taken by the defence to lead evidence how the GI pipes were found in the house of the convict herein. The officers of the BSNL, PW-1, PW-4 and PW-6 identified those pipes as the stolen pipes. From the oral testimony of the PWs. 1, 3, 4, 5 and 6 involvement of the convict herein along with two other accomplices were well established as the prosecution failed to explain how the stolen pipes were found in his house. Accordingly, the presumption would be that he has stolen those pipes along with the co-accused. But the charge as sustained by the learned appellate Court under Section 411 of the IPC is over lapping inasmuch as Section 411 of the IPC speaks of an offence as under:

"whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. "

(11) This charge cannot be brought against a person who himself has been held for commission of theft which is punishable under Section 379 of the IPC.

(12) In the definition of theft, it has been provided that whoever intending to take dishonestly any movable property out of the possession of any person without that persons consent moves that property in order to take such taking is said to commit theft. The word taking is also includes a retention.

(13) In the case in hand, there is no direct evidence against the petitioner but recovery of the stolen materials from his custody had established his involvement in the commission of theft and he has been rightly convicted under Section 379 of the IPC. Therefore, no interference for conviction under that Section is required. However, for the reasons as stated, the conviction as returned under Section 411 of the IPC is set aside.

(14) At the fag end, Mr. Nandi Majumder, learned counsel for the petitioner submitted that the learned trial Court committed serious illegality by not applying the provisions of Section 360 read with Section 361 of the Cr. P. C. and Section 4 of the Probation of Offenders Act, 1958. According to Mr. Nandi Majumder, the Court is under obligation to consider substantively whether the benefit of such provisions can be extended to the convict or not. It is mandatory for the Court to record special reasons for not applying the provisions of Section 360 of the Cr. P. C. Section 361 of the Cr. P. C. thus cast a duty upon the Court to apply the provision of Section 360 wherever it is possible to do so and to state special reasons if the Court does not do so.

(15) In support of his contention, Mr. Nandi Majumder, learned counsel for the petitioner has relied on some decisions. In Sushil Murmu Vs. State of Jharkhand as reported in (2004) 2 SCC 338 the apex Court enunciated the law as under:

". . . . . . . . . . . . . . . . . . There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the Code reenacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circum-stances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354 (3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. "

(16) Another decision of the apex Court as rendered in Roshanali Burhanali Syed Vs. State of Gujarat as reported in AIR 1982 SC 784 where the apex Court appreciated the provisions of Section 4 (1) of the Probation of Offenders Act, 1958 in the following terms:

"the learned Sessions Judge was requested to release the appellant on probation having regard to the petty nature of the offence. The Sessions Judge would have accepted the request of the appellant but he was under the impression that under the provisions of the Probation of Offenders Act, 1958 a person who was above 21 years of age could not be released on probation. The learned Sessions Judge seems to have overlooked the provisions of Section 4 (1) of the Act which does not contain any restriction that the offender must be 21 or below that age although this restriction is to be found in Section 6. "

(17) In Manindra Das Vs. State of Tripura as reported in (1996) 2 GLR 51 where this Court reiterated the principles of Roshanali Burhanali Syed (Supra) and Hari Kishan and State of Haryana Vs. Sukhbir Singh as reported in AIR 1988 SC 2127 . Profitably the paragraph No. 12, 13, 14, 15, 16 and 17 are reproduced below:

"12. The wider provision will be found in Section 4 of the Probation of Offenders Act, 1958 which is extracted below:- "4 : Power of court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life 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 to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders. The sureties, if any, and the probation officer concerned. "

13. In the Case of Hari Kishan and State of Haryana, Appellants vs. Sukhbir Singh and others Respondents, reported in AIR 1988 SC 2127 , it has been laid down inter alia as follows:-"8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate. "

14. In the case of Roshanali Burhanali Syed, Appellant vs. State of Gujarat, Respondent, reported in AIR 1982 SC 784 , it has been observed that under the provisions of the Probation of Offenders Act, 1958 (Section 4 of the Act) a person who was above 21 years of age could be released on probation. 15. There is, however, no bar under Section 360 of the Code of Criminal Procedure, 1973 to release on probation of good conduct or after admonition any person not under 21 years of age. The purpose of Section 360 of Code of Criminal Procedure, 1973 and the provisions of Probation of Offenders Act, 1958 are reformatory in nature and have been legislated with a view to bring it good to the society and for giving opportunity to persons convicted of offences with fine only or with imprisonment for a term of 7 (seven) years or less. In the present case both the Courts below that is Judicial Magis-trate, 1st Class, Kamalpur, North Tripura and learned Additional Sessions Judge, North Tripura, Kamalpur failed to exercise their powers under Section 361 of the Code of Criminal Procedure, 1973 properly. The provisions of Section 361 of the criminal Procedure Code, 1973 reads as follows:-"361. Special reasons to be recorded in certain cases.- Where in any case the court could have dealt with. (a) an accused person under section 360 or under the provisions of the Probation of offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. "

16. This Court has power under sub-section 4 of Section 360 of the Code of Criminal Procedure, 1973 to invoke Section 360 or provisions of Probation of Offenders Act, 1958. 17. It is observed that Courts below sometimes do not adhere to the provisions of Section 361 of the Code of Criminal Procedure, 1973. It is the bounden obligation of the Courts below to record special reasons as to why the accused persons shall not be given benefit of Section 360 of the Code of Criminal Procedure, 1973 or under the provisions of Probation of Offenders Act, 1958 or under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. "

(18) Another decision as rendered in Kim Gangte Vs. State of Manipur as reported in (2007) 3 GLR 193 has also been relied on where this Court has reiterated the principles of Sushil Murmu (Supra) in the following terms:

"13. . . . . . . . . . . . . . . . . . . . . . The learned Addl. Sessions Judge, Manipur West, did not disclose any basis for treating the said offence as serious offences affecting Hie social set up. Such a view of the learned Addl. Sessions Judge is not acceptable. It is well settled that section 361 of the Cr. PC makes it mandatory for the Court to record special reasons for not applying the provisions of Section 360 of the Cr. P. C. Section 361 of the Cr. P. C. thus cast a duty upon the Court to apply the provision of Section 360 wherever it is possible to do so and to state special reasons if it does not do so. In Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338 the Apex Court held that in the context of section 360 Cr. PC, "special reasons" contemplated by section 361 Cr. PC must be such as to compel the court to hold that it was impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedent of the offender and the circum-stances in which the offence had been committed. In the opinion of the Apex court, there is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence are now amongst the foremost objects of the administration of criminal justice in our country. 14. Keeping in view the above said position of law and having regards to all the relevant considerations already made including, the fact of the convict (the present revisionist) being a scheduled tribe woman, in my opinion, she should not have been sentenced to any term of imprisonment for the commission of the said two offences. The reason given by the learned Addl. Sessions Judge, Manipur West for not dealing the convict (present revisionist) either under section 360 Cr. PC or under the provisions of the Probation of Offenders Act, 1958 is not acceptable us "special reasons required to be given under section 361 Cr. PC and as such the sentences of imprisonments ordered by the learned Addl. Sessions Judge, Manipur West without due compliance of the provisions of section 361 Cr. PC are hereby set aside. "

(19) Mr. Debnath, learned Spl. PP vehemently opposed the proposition of law as advanced by Mr. Nandi Majumder, learned counsel for the petitioner. He with sufficient vehemence submitted that the learned trial Court has considered the aspect of Section 360 of the Cr. P. C. and Section 4 of the Probation of Offenders Act and given reasons while awarding the punishment in the following terms:

"there is no evidence in record that they are professional thieves and it is only the first offence of the convicts. But the convicts had stolen the valuable properties from the store of BSNL which was supposed to be used for development of communication purpose. So the convicts are not entitled to get the benefit of probation of Offenders Act. But considering the submissions of the convicts it would not be wise to impose the maximum punishment. Considering the aforesaid circumstances convict Samir alias Sadhu Gope and Puran Lal Gope are sentenced to suffer 6 months of R. I. for commission of offence punishable U/s 379 of I. P. C. Considering the submission of convict Ranjit Gope I sentenced him to suffer 6 months of R. I. for commission of offence punishable U/s 379 of I. P. C. and further sentence of 3 months for commission of offence punishable U/s 411 of I. P. C. Both the sentences shall run concurrently. "

(20) Mr. Debnath, learned Spl. PP submitted that learned trial Court while considering the provisions of Section 360 of the Cr. P. C. as required under Section 361 of the Cr. P. C. has provided the special reason as well. He also considered the case of the convicts under Section 4 of the Probation of Offenders Act, 1958. Therefore, it cannot be said that there is no reason provided by the learned trial Court.

(21) In Sushil Murmu (supra) the apex Court has stated that the special reason as contemplated under Section 361 of the Cr. P. C. must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. The very purpose of this legislative provision is to ensure reformation and rehabilitation of the offenders and not merely engaging the criminal justice system for deterrence. The foremost objects of the administration of criminal justice in our country is reformation. Section 361 and Section 354 (3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in the criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. The special reasons must have relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and determine the appropriate sentence. This High Court has also decided in the similar line in Manindra Das (supra).

(22) From the appreciation of the entire evidences as well as the observation as made by the learned trial Court while considering whether the convict petitioner would be given the benefit of Section 360 of the Cr. P. C. it appears that the petitioner is not a dangerous criminal but of wicked character who has surrendered to the temptation.

(23) This Court instead of remanding the case for fresh consideration on the sentence by the learned trial Court, on taking all relevant considerations is of the view that it would be proper and just to exercise the powers as conferred under Section 360 (4) of the Cr. P. C. and to pass an appropriate order on consideration of all relevant factors as indicated and in the interest of justice.

(24) It is directed that the convict petitioner, instead of being imposed of any term of imprisonment, be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958.

(25) Accordingly, the convict (the revisional petitioner), namely, Shri Ranjit Gope is to be released on his entering into a bond of good behaviour and peace for a period of one year with two sureties, one of them must be a Government employee having permanent residence at Agartala to the satisfaction of the Judicial Officer (First Class), Court No. 7, Agartala, West Tripura or of any other Court as would be directed by the learned Chief Judicial Magistrate, West Tripura, Agartala and he shall remain under supervision of the designated probation officer for the West Tripura District during that period. If it is reported to the learned trial court that the convict has acted in contravention of any law or he was found involved in any public nuisance or for his any conduct apprehension to peace arose, then on the report of the designated probation officer he shall appear and receive the sentence as passed by the learned trial Court. With this observation and direction, this revisional petition stands disposed of. Send down the LCRs forthwith.