1. Heard Shri Amitabh Tripathi, learned counsel for the revisionist, learned AGA for the State respondent and Shri S.H. Ibrahim, learned counsel for opposite party nos.2 to 10.
2. A very short question is involved in this criminal revision as to whether cases of Probation of Offenders Act, 1958 (for short the Act) will be applicable or not to the cases where minimum sentence is provided, and whether the Court can, instead of granting minimum sentence, release him on probation?
3. As factual matrix of the case, a case under Sections 498-A, 323, 504 IPC and Section ¾ of the Dowry Probation Act, 1961 was registered against opposite party nos.2 to 4 in Police Station Salwan, District Rae Bareli. After investigation, charge sheet was submitted and charges were framed. The prosecution witnesses were examined and opposite party nos.2 to 10 were convicted under Section 498-A, 323 IPC and Section 4 of the Dowry Prohibition Act. They were acquitted under Section 504 IPC and Section 3 of the Dowry Prohibition Act. Meera Bux and Afsar were directed to undergo 2 years RI and Rs.1000/- fine under Section 498-A IPC. Shamshad, Dilsher, Babloo, Chhoti Bitiya, Haddo, Nisar Ahmad, Smt. Noori were directed to undergo six months SI under Section 498-A and were also directed to pay Rs.1000/- each as fine. Meera Bux, Shamshad, Dilsher, Babloo, Chhoti Bitiya, Haddo, Afsar, Nisar Ahmad, Smt. Noori were also directed to undergo six months SI under Section 323 IPC. Meera Bux, Shamshad, Dilsher, Babloo, Chhoti Bitiya, Haddo, Afsar, Nisar Ahmad, Smt. Noori were directed to undergo one year SI and were also directed to pay fine of Rs.1000/- under Section 4 of the Dowry Prohibition Act. Feeling aggrieved, criminal appeal no.55 of 2013 was filed, which was partly allowed, and conviction of accused persons was maintained, by giving benefit of Secton 4 of the Probation of Offenders Act, 1958 and were released on their executing one surety of Rs.5000/- on condition that they will maintain peace and good conduct for one and half year. The informant feeling aggireved filed this criminal revision.
4. Learned counsel for the revisionist relied upon the decision of the Apex Court in the case of Shyam Lal Verma v. Central Bureau of Investigation, 2013 (81) ACC 470 and submitted that the Apex Court has held that in cases where specific provisions prescribed minimum sentence, Probation of Offenders Act, 1958 cannot be invoked.
5. Learned counsel for opposite party no.2 to 10 submitted that Probation of Offenders Act, 1958 is applicable to all the offences barring death or imprisonment for life.
6. The only point for consideration before the Apex Court while deciding the cases of Shyam Lal Verma (supra) was that whether the provision of the Act was applicable to offences under the Prevention of Corruption Act?
7. The Apex Court, in the case of Shyam Lal Verma (supra), has held that "It is not in dispute that the issue raised in this appeal has been considered by this Court in State Through SP, New Delhi v. Ratan Lal Arora, 2004 (4) SCC 590 wherein in similar circumstacnes, this Court held that since section 7 as well as section 13 of the Prevention of Corruption Act provide for a minimum sentence of six months and one year respectively in additon to the maximum sentences as well as imposition of fine, in such circumstacnes claim for granting relief under the Probation of Offenders Act is not permissible. In other words, in cases where a specific provision prescribed a minimum sentence, the provisions of the Probation Act cannot be invoked. Similar view has been expressed in State Represented by Inspector of Police, Pudukottai, T.N. v. A. Parthiban, 2006 (56) ACC 465.
8. The Probation of Offenders Act, as observed by the Apex Court in the case of Rattan Lal v. State of Punjab MANU/SC/0072/1964 : 1965 Cri.L.J. 360, is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of Criminal Law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the Court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years, an injunction is issued to the Court not to sentence them 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 offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act.
9. It is manifest from plain reading of Sub-section 1 of Section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years. On the contrary, the said Sub-section is applicable to persons of all ages subject to certain conditions which have been specified therein. Once those conditions are fulfilled and the other formalities which are mentioned in Section 4 are complied with, power is given to the Court to release the accused on probation of good conduct. Section 6 of the Act deals specifically with persons under twenty-one years of age convicted by a Court for an offence punishable with imprisonment other than imprisonment for life. In such a case an injunction is issued to the Court not to sentence the young offender to imprisonment, unless the Court is of the view 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 release him after admonition under Section 3 or on probation of good conduct under Section 4 of the Act.
10. The fact that out of various offences in which minimum sentence is prescribed only the offence under sub Section (2) of Section 5 of the Prevention of Corruption Act has been mentioned, in Section 18 of the Probation of Offenders Act and not the other offences for which the minimum sentence is prescribed shows that even in case of other offences, the provisions of Probation of Offenders Act can be invoked. Reference may be made to Ishwar Das v. State of Punjab, (1973) 2 SCC 65.
11. In the case of Ishwar Das (supra) it has been held by the Apex Court that "we find that Sub-section 1 of Section 4 of the Probation of Offenders Act contains the words "notwithstanding anything contained in any other law for the time being in force". The above non-obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. Those conditions are (1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the Court finding him guilty is of the 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, and (3) the accused in such an event enters 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 behavior. Sub-section 1 of Section 6 of the above mentioned Act, as stated earlier, imposes a duty upon the Court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other than imprisonment for life, not to sentence him to imprisonment unless the Court 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 Sections 3 or 4 of the Act but to award a sentence of imprisonment to him. The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals. So far as persons who are less than 21 years of age are concerned, special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals. It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there exist reasons which justify such a course. Such reasons have to be recorded in writing."
12. According to Section 18 of the Probation of Offenders Act, the aforesaid Act shall not affect the provision of Section 4 of the Dowry of Prohibition Act. The last mentioned provision, namely, Section 4 of the Dowry of Prohibition Act, prescribes, in the absence of special reasons, a minimum sentence of imprisonment for a term of not less than six months for those convicted under Section 4 of the Dowry of Prohibition Act. If the object of the legislature was that the provisions of the Probation of Offenders Act should not apply to all cases where a minimum sentence of imprisonment is prescribed by the statute, there was no reason to, specify Section 4 of the Dowry of Prohibition Act in Section 18 of the Probation of Offenders Act. The fact that out of the various offences for which the minimum sentence is prescribed, only the offence under Section 4 of the Dowry of Prohibition Act has been mentioned in Section 18 of the Probation of Offenders Act and not the other offences for which the minimum sentence is prescribed, shows that in case of such other offences the provisions of Probation of Offenders Act can be invoked.
13. In view of settled legal position, this Court is of the view that the learned Sessions Judge, Rae Bareli has not erred in granting benefit of Section 4 of the Act to respondent nos.2 to 10.
14. Consequently, in view of foregone conclusion, the crminal revision is liable to be dismissed, and is hereby dismissed.
Order Date :- 9.5.2014 Anupam (Justice Arvind Kumar Tripathi - II)