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Prabhu Dayal Vs. Purkharam and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 482 of 1973
Judge
Reported in1971WLN693
AppellantPrabhu Dayal
RespondentPurkharam and anr.
DispositionPetition dismissed
Cases ReferredIn Rattan Lal v. The State of Punjab
Excerpt:
.....act - section 4 & 6 distention between provisions of section 4(2) & 6(2)--report from probation officer not called under section 6(2)--held court cannot extend benefit of provisions of section 4.;it can safely be inferred that the provision of sub-section (2) of section 6 is mandatory while the provision of sub-section (2) of section 4 is directory and if the report under sub-section (2) of section 4 has not been called by the magistrate before extending the benefit of sub-section (1) of section 4, then the order of the court cannot be said to be vitiated for want of compliance of sub-section (2) of section 4.;calling for a report under sub-section (2) of section 6 for applying the provisions of sub-section (1) of section 6 is a condition precedent and unless such a report..........court from the probation officer to look in to the character of the offender and as there is no material on the record to judge the character of respondent no. 1, the order gaveling him benefit of section 4 and releasing him on probation is vitiated i regret, i cannot accept this contention of the petitioner because, in the first instance it is not necessary for the court to call for the report from the probation officer while acting under section 4 of the act and, secondly, this question was never raised by the petitioner either before the appellate authority of before the trial court that a report must be called from the probation officer it may also be noted here that the period of probation has already expired in this case and therefore, it will not be in the interest of justice.....
Judgment:

V.P. Tyagi, J.

1. This revision petition raises an important question whether the court can extend the benefit of Probation of Offenders Act under Section 4 without calling for a report from the Probation Officer,

2. Respondent No. 1 Purkha Ram was convicted by the Additional Munsiff-Magistrate, Bikaner, under Section 325 Indian Penal Code but instead of sending him to jail he was given the benefit of Section 4 of Probation of Offenders Act (hereinafter called the Act). Revision was filed by the State against the order of the Additional Munsiff-Magistrate before the Sessions Judge for releasing Purkharam on probation but that revision was dismissed. Complainant Prabhu Dayal also filed an appeal against the same order of the learned Magistrate under Section 11 of the Act and in that appeal the learned Sessions Judge, Bikaner, however, ordered that accused Purkha Ram shall pay Rs. 200/- as compensation to injured Perbhu Dayal and Rs. 50/- shall be paid to the State Government as cost. It is against this judgment of the learned Sessions Judge, Bikaner, that the present revision petition has been preferred by Prabhu Dayal.

3. The main contention of earned Counsel appearing on behalf of petitioner Prabhu Dayal is that the order of the trial court extending the benefit of the provisions of Section 4 of the Act to Purkha Ram is illegal as the court did not take care to find out the antecedents of the accused by calling for a report from the Probation Officer under Sub-section (2) of Section 4 of the Act. The argument of earned Counsel in Sub-stance is that the provision of Section 4(2) of the Act is a mandatory provision of law and without a report from the Probation Officer accused cannot be released on probation.

4. Learned Deputy Government Advocate supports the contention of the petitioner and relies on the judgment of the Supreme Court in Rattan Lal v. The State of Punjab : 1965CriLJ360 which was subsequently followed by the Judicial Commissioner of Goa in State v. Naguesh G. Shet Govenkar and Anr. AIR 1970 Goa. 49.

5. Learned Counsel appearing on behalf of accused Purkha Ram argued that it is not the mandate of the statute that before extending the benefit of the provisions of Section 4 of the Act, the court must call for the report from the Probation Officer and it is only thereafter that the accused can be released on probation. His suggestion is that for a man who has crossed the age of 21, it is not necessary that the benefit of Section 4 of the Act be given only after calling for a report from the Probation Officer. According to him, the scheme of Section 6 of the Act is entirely different from that of Section 4 and, therefore, the legislative injunction contained in Sub-section (2) of Section 6 cannot be made applicable to the cases falling under Section 4 of the Act.

6. In order to resolve this controversy, it will be relevant to look into the provisions of Sub-section (2) of Section 4 and Sub-section (2) of Section 6 and Sub-section (2) of Section 4 reads as bellows:

Section 4(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.

7. The language used by the legislature while enacting Sub-section (2) of Section 6, for the grant of the benefit of Sub-section (1) of Section 6 to an offender under 21 years of age is as follows:

Section 6(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

8. The difference of language in Sub-section (2) of Section 4 and Sub-section (2) of Section 6 is obvious because under Section 6 the Court has no option but to extend the benefit of the Act to the offender who is below 21 yaers of age except in cases where the circumstances of the case and the character of the offender require the court to send him to jail. That is not the case under Section 4. The scheme of Section 6 is different from that of Section 4 of the Act, and it is on account of this difference of scheme of these two sections that a duty has been cast on the Court under Section 6(2) of the Act to call for a report from the probation officer before the benefit of probation is given to the accused and consider the character and physical and mental condition of the offender and then pass the older of the release of an offender on probation. While exercising discretion under Section 4 it is not incumbent in all cases for the court to call for a report as is required under Sub-section (2) of Section 4. Sub-section (2) of Section 4, however, requires that if any report has been called rhen before exercising its discretion of extending the benefit of Sub-section (1) of Section 4 the court shall take into consideration the report, if any, of the probation officer concerned. This difference when can fully studied leaves no room for doubt that the legislature made it obligatory for the court to call for a report under Sub-section (2) of Section 6, but that is rot so where the provisions of Section 4 are pressed into service. It is entirely a discretionary affair with the court to send for a report if power under Section 4 is to be exercised by it. Under these circumstances, it can safely be inferred that the provision of Sub-section (2) of Section 6 is mandatory while the provision of Sub-section (2) of Section 4 is directory and if the report under Sub-section (2) of Section 4 has not been called by the Magistrate before extending the benefit of Sub-section (1) of Section 4, then the order of the court cannot cannot be vitiated for want of compliance of Sub-section (2) of Section 4.

9. In Rattan Lal v. The State of Punjab : 1965CriLJ360 , it was urged before the Supreme Court that the provisions of Sub-section (2) of Section 6 were not of mandatory nature as the expression 'if any' indicates that the report would take into consideration while applying Section 3 or Section 4 of the Act only when such a report is on the record. This contention was repelled by the learned Judges of the Supreme Court while observing as follows:

It is suggested that the expression 'if any' in Sub-section (2) of Section 6 indicates that it is open to the Court to call for a report or not; but the word 'shall' makes it a mandatory condition and the expression 'if any' can in the context only cover a case where not with-standing such requisition the Probation Officer for one reason or other has not submitted a report. Briefly stated the calling for a report from Probation Officer is a condition precedent for the exercise of the power under Section 6(1) of the Act by the court.

10. These observations of their Lordships of the Supreme Court make it abundantly clear that calling for a report under Sub-section (2) of Section 6 for applying the provisions of Sub-section (1) of Section 6 is a condition precedent & unless such a report has been called the court cannot extend the benefit of the provisions of Section 3 or Section 4 of the Act. Their Lordships, however, explained the presence of the expression 'if any' in Sub-section (2) of Section 6 and observed that these worlds do not lend any other colour to the provision of Section 6(2) and the mandatory nature thereof is not in any manner taken away because of the legislature has used the words 'if any' in this sub-sections. These observations of the Supreme Court, however, do not help us to to interpret Sub-section (2) of Section 4, the language and scheme where of is different from Sub-section (2) of Section 6. Under Section 4 it is necessary that in all cases the Court should extend the benefit of the provisions of Section 4. At the dose the trial if the Court comes to this conclusion that in the circumstances of a particular case benefit of Section 4 may, be extended to the offender, then it may do so while taking in to consideration the circumstances of the case and the character of the offender. In order to judge the character of the offender the court may call for a report under Sub-section (2) of Section 4 but it is not imperative in every case to send for such a report. For acting under Section 6, the court has to see not only the nature and circumstances of the offence and the character of the offenders as is the requirement of Section 4 but it has also to look into the physical and mental condition of the offender which the Court can find out after calling for a report Since the Court is under a duty to extend benefit of Sub-section (1) of Section 6 in every case when the offender is below 21 years of age and therefore, in such a case as soon as it comes to the notice of the court that the person who stands charged is below 21 years, then he must call for a report under the mandate given to it by the legislature so that it may not find any difficulty at the fag-end of the trial to apply the provisions of Sub-section (1) of Section 6. In this manner the difference lies in the application of the provisions of Section 6 and Section 4 of the Act, and it shall have to be borne in mind while interpreting Sub-section (2) of Section 4 in the background of the Supreme Court observations in the aforementioned case.

11. It is contended by earned Counsel for the petitioner that since in that instant case the report was not called by the trial Court from the probation officer to look in to the character of the offender and as there is no material on the record to judge the character of respondent No. 1, the order gaveling him benefit of Section 4 and releasing him on probation is vitiated I regret, I cannot accept this contention of the petitioner because, in the first instance it is not necessary for the court to call for the report from the Probation Officer while acting under Section 4 of the Act and, secondly, this question was never raised by the petitioner either before the appellate authority of before the trial court that a report must be called from the Probation Officer It may also be noted here that the period of probation has already expired in this case and therefore, it will not be in the interest of justice to disturb the order of the trial court releasing the respondent No. 1 on probation.

12. For the reasons mentioned above, the revision fails and it is hereby dismissed.


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