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Shivcharan Lal Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 71 of 1971
Judge
Reported inAIR1973Raj167; 1972()WLN422
ActsProbation of Offenders Act, 1958 - Sections 3, 4, 6, 8, 11, 11(2), 11(3) and 12
AppellantShivcharan Lal
RespondentThe State
Appellant Advocate O.C. Chatterjee, Adv.
Respondent Advocate N.M. Singhvi, Adv.
DispositionRevision dismissed
Excerpt:
.....excluded.;(c) probation of offenders act - section 6--benefit available when punishable with life imprisonment.;the benefit is only available if the offence of which the offender is found guilty is not punishable with imprisonment for life section 326 i.p.c. is punishable with imprisonment for life or with imprisonment of either description which may extend to 10 years and for also liable to fine.;(d) words and phrases - 'punishable' in section 6 of probation of offenders act refers to maximum punishment.;both under section 4 and section 6 the word employed is 'punishable.' in my opinion this word has reference to the maximum punishment to which the offender is liable to be punished. - - 1000/- for one year to keep peace and to be of good behaviour. section 4 authorises a court to..........shiv charan was cutting leaves of a neem tree belonging to shri ham and the latter objected to it. shiv charan felt offended, went to his house and came with other accused hargyan, mullah and panchya. shiv charan caught hold of shri ram's father vishram in his arms and hargyan struck a farsa blow on him. the right knee of vishram registered a cut wound measuring 1 3/4' x 1' x 1/2' and the bone below it was fractured and a piece of the hone had to he extracted from his knee. the accused denied their guilt but the learned magistrate found only hargyan and shiv charan guilty under section 326 read with section 34, i.p.c. he acquitted the other accused. he awarded to hargyan one year rigorous imprisonment and a fine of rs. 200/, but extended the benefit to shiv charan under the probation of.....
Judgment:
ORDER

B.P. Beri, J.

1. Briefly stated the facts which give rise to this revisional application are that Shiv Charan was cutting leaves of a Neem tree belonging to Shri Ham and the latter objected to it. Shiv Charan felt offended, went to his house and came with other accused Hargyan, Mullah and Panchya. Shiv Charan caught hold of Shri Ram's father Vishram in his arms and Hargyan struck a Farsa blow on him. The right knee of Vishram registered a cut wound measuring 1 3/4' x 1' x 1/2' and the bone below it was fractured and a piece of the hone had to he extracted from his knee. The accused denied their guilt but the learned Magistrate found only Hargyan and Shiv Charan guilty under Section 326 read with Section 34, I.P.C. He acquitted the other accused. He awarded to Hargyan one year rigorous imprisonment and a fine of Rs. 200/, but extended the benefit to Shiv Charan under the Probation of Offenders Act and ordered him to execute a bond in the sum of Rs. 1000/- for one year to keep peace and to be of good behaviour. On appeal by Hargyan and Shiv Charan the learned Additional Sessions Judge closely examined the evidence led in the case and came to the conclusion that they were rightly convicted and their appeal was dismissed. Rut in the appeal by the State against Shiv Charan for his having been given the benefit of Section 6 of the Probation of Offenders Act the learned judge found that the Magistrate was in error and he set aside that part of the order and substituted it for one year's rigorous imprisonment and to pay a fine ofRs. 200/- and in default to undergo an additional sentence of one month's rigorous imprisonment. Dissatisfied Shiv Charan has come up before me. Nothing need be said about Hargyan because his application was rejected in limine.

2. Mr. Chatterjee, the learned counsel for Shiv Charan argued that no appeal is provided for in Section 11 against the judgment of the Magistrate when he acted under Section 6 an independent provision under the Probation of Offenders Act and, therefore, the appeal of the State against Shiv Charan was not competent. He further submitted that the forum of appeal under Section 11 has to be determined by the provisions of Code of Criminal Procedure and in the entire Code no appeal by the State lies against a conviction to a Sessions Judge and, therefore, the action of the learned Additional Sessions Judge, Gangapur City was without jurisdiction. On merits also he submitted that where three persons caught hold of Vishram, Shiv Charan alone should not have been convicted.

3. Mr. Singhvi, the learned counsel for State, argued that Section 6 is not an independent provision hut is merely an extension of Sections 3 and 4 of the Act. The order passed under Section 6 was in essence one under Section 4 and an appeal was competent. He further submitted that it is only for determining the forum for appeal under Section 11 (2) that the Code of Criminal Procedure had to be consulted and because against the judgment of the Magistrate an appeal lay before the Court of the Sessions Judge, such an appeal was properly submitted.

4. Mr. Dave also feeling interested in the question, was permitted to address me and he supported the learned counsel for the State and urged that the interpretation suggested by Mr. Chatterjee would make Sections 8 and 9 of the Probation of Offenders Act inapplicable to a bond under Section 6 of the Act.

5. Since the point of law involved in this case is likely to recur, I would deal with it in some detail.

6. The Probation of Offenders Act is a legislative step in the direction of a long felt social reform. The modern trend in criminal jurisprudence is to reform and rehabilitate a person found guilty of a crime rather than to avenge the injury excepting in serious offences or offences the incidence of which pollutes the whole fabric of society. This is clear from the provisions of the Probation of Offenders Act when the nature of the offence regulates the grant of benefits and the offences under the Prevention of Corruption Act: the Suppression of Immoral Traffic in Women and Girls Act etc., have been excluded from its purview under Section 18 of the Act. Section 3 empowers a Court to release an offender after admonition, if he is found guilty of havingcommitted offence specified in that section or any offences punishable with imprisonment of not more than 2 years or fine or both under the Penal Code or any other law provided he is not a previous convict. Section 4 authorises a Court to release an offender on probation on his entering into a bond with or without sureties to appear for receiving sentence when called upon during such period not exceeding three years and in the mean time to keep the peace and to be of good behaviour. Under both these sections the Magistrate has to have due 'regard to the circumstances of the case including the nature of the offence and the character of the offender' and considerations of expediency in giving the benefit to an offender. Section 6 imposes restriction on imprisoning an offender under 21 years of age. Whether Section 6 is independent of Sections 3 and 4, is the question to which I am called upon to answer. In my opinion the answer to this question is in the negative. Section 3 is confined to offence of specified nature and to offences which are punishable with imprisonment upto two years and the offender is let off with a mere admonition. Section 4 relates to offences which are not punishable with death or imprisonment for life. It makes no reference to the age of the offender. Section 6 provides that when an offender is under 21 years of age and is found to be guilty of an offence punishable with an imprisonment but not with imprisonment for life, the Court shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with him under Section 3 or Section 4 and further when the Court passes a sentence of imprisonment on such an offender it shall record its reason for doing so. In my opinion Section 6 is in the nature of a proviso of Sections 3 and 4. The legislature has expressed a special tenderness for offenders under 21 years of age and has couched the section with a command that no offender under 21 years of age shall be sentenced to imprisonment if he is found guilty of an offence not punishable with imprisonment for life unless the Court records its reason for not extending to him the benefits under Sections 3 and 4. The Court is conferred with the power to call for a report from a Probation Officer for assistance while granting or denying the benefit under Sections 3 and 4 to such an offender. In the scheme of the Act it would appear that the orders envisaged are (a) admonition; (b) bond for good behaviour. Section 6 is an additional command to a magistrate that an offender under 21 years of age shall not be sent to imprisonment and shall be given the benefits of Section 3 or 4 as the circumstances of the case justify. It is a restriction on imprisonment of persons under 21 years of age. Mechanism has been provided to obtain from a Probation Officer report concerning the character, mental and physical condition of the offender and for consideration of the report obviously to assess 'the why' of the crime and the impact of imprisonment before giving or denying the offender of the benefits of Section 3 or 4, The denial of the benefit is required to be supported by written reasons enabling superior courts to scrutinise whether the grounds for refusal are reasonable or not. There are other provisions in the Act such as Section 8, which relates to variation of the conditions of probation and Section 9 which deals with the procedure in case an offender failed to observe the conditions of a bond. Both these sections only speak of Section 4 because that section alone relates to a bond and not Section 6. It could not be the intention of the legislature that if a bond had been given by an offender under 21 years of age there could be no variation in the condition of his bond and he could with impunity disobey the conditions of the bond.

7. Further, Section 12 provides the removal of the disqualifications attached to a conviction. It lays down that notwithstanding anything contained in any other law a person found guilty of an offence and dealt with under the provisions of Sections 3 and 4 shall not suffer disqualification if any, attaching to a conviction of an offence under such law. This section also speaks of the bond obtained under Section 4 regardless of the fact whether he is a person under or above 21 years of age, it could not have been the intention of the legislature that an offender under 21 years of age dealt with under Section 6 shall suffer from the disqualification while a person dealt with under Section 4 and who was above 21 years of age, shall be saved from disqualification attached to a conviction. I accept the arguments advanced by the learned counsel for the State that Section 6 only deals with a situation with reference to the age of an offender and in essence the bond is obviously obtained under Section 4 and therefore Section 6 is not independent of Section 4.

8. Moreover Section 11 which deals with appeals and revisions and powers of Court in that behalf consists of 4 sub-sections. Sub-section (1) provides that notwithstanding anything contained in Code of Criminal Procedure or in any other Law an order made in that Act may be made by any Court, empowered to try and sentence an offender to imprisonment and also by High Court or any other Court when the case comes before it in appeal or in revision. In other words the benefit under the Act could be also granted by Courts exercising appellate or revisional jurisdiction. Sub-section (2) of Section 11 provides that notwithstanding anything contained in the Code of Criminal Procedure where an order under Sections 3 and 4 is made bythe Court trying the offender, an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court. This sub-section clearly provides for an appeal against orders passed under Sections 3 and 4 of the Act. Sub-section (3) deals with persons under 21 years of age and if he has not been given the benefit under Section 3 or 4 and any sentence is imposed against him where an appeal lies from such an order of sentence or has been preferred or not then notwithstanding anything contained in the Code of Criminal Procedure or any other law the Court to which an appeal ordinarily lies from the sentence of former Court may either on its motion or an application made to it by the convicted person or the Probation Officer, call for and examine the record of the case and pass such order thereon, as it thinks fit. This sub-section again shows special case bestowed by the legislature for offenders under 21 years of age. If benefit that could have been given to such a person, has been declined by the Court whether there is an appeal or not suo motu or at the instance of the Probation Officer a Court could grant the benefit under Sections 3 and 4 to a person covered by Section 6. Sub-section (4) of Section 11 pro-vides that where an order has been made under Sections 3 and 4 in respect of any offender, the Appellate Court or the High Court in exercise of its powers of revision may set aside such order and in lieu thereof pass sentence on such offender according to law. This indicates that while exercising appellate or revisional jurisdiction a Court can set aside an order passed under Sections 3 and 4. If the interpretation suggested by Mr. Chatterjee is accepted then the result would be that benefit given to a person covered by Section 6 could never be interfered with by an Appellate Court. Such could not have been indeed the intention of the legislature.

9. For the aforesaid I am of the opinion that the benefit of either admonition or bond are two varieties of the orders that are envisaged by the Act and Section 6 merely deals with the offender who is under 21 years of age and the benefit under the Act, when extended is in substance one under Section 3 or 4 of the Act. The appellate Court was perfectly competent to interfere with an order passed under Sections 3 and 4 as will be evident by reference to the provisions to Sub-section (2) of Section 11. Where a sentence is imposed on an offender covered by Section 6 then Sub-section (3) of Section 11 comes into operation.

10. The next argument of Mr. Chatterjee is that the State was not competent to appeal under Section 11 because under the Code of Criminal Procedure the State can never appeal before a Sessions Judge against a conviction. This argument has no force.

11. Operation of Code of Criminal Procedure has been excluded by a non obstinate clause with which Sub-section (2) of Section 11 begins. It reads:--

'Notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court.'

12. The Code of Criminal Procedure is merely available for determining the Court of appeal under its provisions. Other provisions of Code of Criminal Procedure are clearly excluded. Moreover, in the case before me the accused Shiv Charan had also appealed and the learned Additional Sessions Judge could have acted under Sub-section (4) of Section 11 which reads:--

'When an order has been made under Section 3 or Section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law.'

13. Coming to the question whether the learned Additional Sessions Judge was right in denying the benefit of Sections 4 and 6 of the Act, it would be remembered that the benefit is only available if the offence of which the offender is found guilty, is not punishable with imprisonment for life. Section 326, I. P. C. is punishable with imprisonment for life or with imprisonment or either description which may extend to 10 years and shall also be liable to fine. Two alternative terms of the imprisonment are prescribed by the Penal Code. Both under Section 4 and Section 6 the word employed is 'punishable'. In my opinion this word has reference to the maximum punishment to which the offender is liable to be punished. According to Black's Law Dictionary Fourth Edition Page 1398 'punishable' means 'Deserving of or capable or liable to punishment; capable of being punished by law or right,' According to Websters Third New International Dictionary Volume II, Page 1843 'punishable' has been given the same meaning as mentioned above. In Oxford English Dictionary V. VIII, Edition 1933, Page 1603 'punishable' means liable to punishment; capable of being punished. The reference, therefore, is clearly to the maximum punishment awardable in a given case to a person found guilty of an offence. Even though Shiv Charan was under 21 years of age the benefit of Section 6 was not available to him.

14. The last argument of Mr. Chatterjee was that Shiv Charan should be acquitted because all other accused have been acquitted. This argument has no force. I have examined the evidence and I see no reason to take a different view from theone taken by both the courts below. Shiv Charan was the person, who first felt offended by the remonstrance of Shri Ram, when he was cutting the Neem leaves. In my opinion he was rightly convicted and sentenced.

15. This revision fails and is dismissed.


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