1. Assault case — Applicability of Section 6, Probation of Offenders Act, 1958 — Determination of offender's age and nature of offence for probation eligibility. (Para 1 , 2 )
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1962 Supreme(SC) 411
SUPREME COURT OF INDIA
6th December, 1962
Ramji Missar and another, Appellants v. State of Bihar, Respondent.
Criminal Appeal No. 144 of 1962.
Advocates appeared
M/s. B. K. P. Sinha and A. G. Ratnaparkhi, Advocates, for Appellants; Mr. S. P. Varma, Advocate and Mr. P. D. Menon, Advocate for Mr. R. N. Sachthey, Advocate, for respondent.
Criminal Appeal No. 339 of 1961, D/- 10-5-1952 - Pat.
Advocates:
A.C.RATNAPARKHI, B.K.P.SINHA, P.D.MENON, R.N.SACH, S.P.Varma
A.C.RATNAPARKHI, B.K.P.SINHA, P.D.MENON, R.N.SACH, S.P.Varma
Under Section 6(1) of the Probation of Offenders Act, 1958, the age of the offender is determined at the time of sentencing, not the date of the offence, to ensure the Act's objective of reforming youthful offenders is met.
Headnote:(A) Probation of Offenders Act, 1958 - Sections 6 and 11 - Indian Penal Code - Sections 307, 326, 324 - Determination of age for benefit of probation - The age of the person under Section 6(1) is relevant for the purpose of punishment and not for determining guilt - The object of the Act is to prevent youthful offenders from becoming criminals by association with hardened criminals in prison - Therefore, the age referred to in Section 6(1) should be the age of the offender at the time the court is dealing with him (date of sentencing), and not the date of the offence. (Para 6)
(B) Probation of Offenders Act, 1958 - Section 11 - Power of Appellate Court - Whether the power to "pass an order under the Act" includes the mandate of Section 6(1) to refrain from sentencing a youthful offender to imprisonment unless satisfied it is desirable to do so. (Paras 11-12)
Facts of the case:
Two brothers were convicted of causing hurt. The elder brother was under 21 at the time of the offence but had crossed that age by the time of sentencing. The younger brother was initially convicted of offences punishable by life imprisonment, making Section 6 inapplicable, but the appellate court later altered the conviction to a lesser offence. The trial court and appellate court refused to grant the benefits of the Probation of Offenders Act.
Findings of Court:
The court found that the age of the offender for the purpose of Section 6(1) must be determined at the time of sentencing. Regarding the elder brother, since he was not under 21 on the date of sentencing, the provisions of Section 6(1) did not apply.
Issues: Whether the age of the offender under Section 6(1) of the Probation of Offenders Act is to be determined as of the date of the offence or the date of sentencing; and whether an appellate court's power under Section 11 includes the obligations set out in Section 6(1).
Ratio Decidendi: The purpose of the Act is reformation and the prevention of youthful offenders from becoming hardened criminals. Consequently, the age must be determined at the point when the court chooses between sentencing the offender to imprisonment or applying the beneficial provisions of the Act.
Result: The court agreed with the High Court's construction of Section 6 regarding the determination of age.
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Table of Contents
2. Whether age for probation is determined at the date of offence or sentencing — Whether appellate courts possess discretionary power under Section 11. (Para 4 , 5 )
3. Age for probation is determined at the time of sentencing — Appellate courts can be the first court to find an offender guilty of a non-excluded offence. (Para 6 , 9 , 10 )
4. The age of the offender under Section 6(1) of the Probation of Offenders Act is determined at the time the court passes sentence. (Para 6 )
5. Appeal dismissed regarding the elder brother's age determination; legal analysis continued regarding the younger brother's eligibility under Section 11. (Para 6 , 7 , 8 )
6. When is the age of the offender determined for the purpose of Section 6(1) of the Probation of Offenders Act?
The age is determined at the time the court is dealing with the offender, specifically when the court must choose between sentencing the offender to imprisonment or applying the provisions of Section 6(1), rather than the date of the offence. (Para 6 )
7. Can an appellate court be considered the court by which a person is found guilty under Section 6(1)?
Yes, the phrase is wide enough to include an appellate court, particularly where the appellate court is the first to find the accused guilty of an offence that is not excluded by the statutory provisions. (Para 9 , 10 )
8. What is the scope of the power conferred on appellate courts under Section 11 of the Probation of Offenders Act?
Section 11 empowers appellate and revisional courts to pass an order under the Act notwithstanding other laws, though the court analyzed whether this includes the injunction against passing a sentence found in Section 6. (Para 5 , 11 )
Judgment
AYYANGAR, J. : This appeal by special leave granted by us on September 7, 1962 raises for consideration the proper construction of Ss. 6 and 11 of the Probation of Offenders Act, 1958 (Central Act XX of 1958) hereinafter called the Act .
2. The appellants are two brothers- Ramji and Basist. It was alleged that these two assaulted one Sidhnath (P.W. 2) who as a result suffered grievous injuries. Basist, the younger brother was charged before the Assistant Sessions Judge, Arrah with the commission of an offence under S. 307, Indian Penal Code for the reason that the injury he inflicted was a bhala-blow under circumstances "that if by that act death had been caused he would have been guilty of murder", and as the injury actually sustained was grievous he was further charged with causing grievous hurt under S. 326, Indian Penal Code. The elder brother who too caused hurt to the victim was charged under S. 324, Indian Penal Code. The Assistant Sessions Judge held that prosecution case as alleged established against both the accused. It is now necessary to mention that according to the Sessions Judge Ramji was 21 years old and Basist 19. Section 6 of the Act enacts;
"6. (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty 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 if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(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-s. (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." The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life (both Ss. 307 and 326, Indian Penal Code). He accordingly sentenced Basist to undergo rigorous imprisonment for six years under S. 307, Indian Penal Code and to four years under S. 326, Indian Penal Code, the sentences to run concurrently. As regards Ramji, the elder brother he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms :
"So far as accused Ramji is concerned I am not inclined to take recourse to the Probation of Offenders Act, 1958 because the act of assault on the informant on the part of this accused is premeditated."
He sentenced him to undergo rigorous imprisonment for two years under S. 324, Indian Penal Code.
3. Both the accused filed an appeal to the High Court. The learned Single Judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to P.W. 2, with the result that as against him the conviction under S. 307 as well as that under S. 326, Indian Penal Code were set aside and in their place he recorded a finding of guilty in respect of an offence under S. 324, Indian Penal Code for which he imposed a sentence of rigorous imprisonment for two years. As against Ramji the conviction was maintained but being informed by Counsel that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months.
4. It was urged before the High Court that the reasons assigned by the Assistant Sessions Judge for refusing to apply the provisions of S. 6 of the Act to accused Ramji were not proper. This submission was, however, rep
