An appellate court or the High Court has jurisdiction to exercise its power under S. 6 of the Probation of Offenders Act, 1958 in respect of an accused who was convicted by the trial court before the Act came into force.

Headnote:
PROBATION OF OFFENDERS ACT, 1958 - SECTION 6 - JURISDICTION OF APPELLATE COURT - ACT NOT RETROSPECTIVE - SECTION 11(1) - APPELLATE COURT CAN MAKE ORDER UNDER SECTION 6(1) - SECTION 6(1) APPLIES TO APPELLATE COURT - COURT INCLUDES APPELLATE COURT - NO ANOMALIES - SECTION 11(3) NOT RELEVANT - SECTION 6(1) READ WITH SECTION 11 - APPELLATE COURT CAN MAKE ORDER UNDER SECTION 6(1) - EXPRESSION "FOUND GUILTY" INCLUDES FINDING OF GUILTY BY APPELLATE COURT - RAMJI MISSAR V. STATE OF BIHAR, AIR 1963 SC 1088, FOLLOWED.
Fact of the Case:

The appellant, a 16-year-old boy, was convicted of house trespass and attempt to outrage the modesty of a 7-year-old girl. He was sentenced to six months' rigorous imprisonment under each count, to run concurrently, and a fine of Rs. 200/- with two months' rigorous imprisonment in default. The Probation of Offenders Act, 1958 (the Act) was extended to the appellant's district on September 1, 1962, after his conviction. The appellant appealed his conviction and sentence to the Additional Sessions Judge, who dismissed the appeal. The appellant then filed a revision petition in the High Court, which was dismissed in limine. The appellant then filed a petition in the High Court under Art. 134(1)(c) of the Constitution for a certificate of fitness to appeal to the Supreme Court, which was also dismissed. The appellant then filed the present appeal to the Supreme Court by obtaining special leave.
Finding of the Court:

The Supreme Court held that the High Court had jurisdiction to exercise its power under S. 6 of the Act in respect of the appellant, even though he was convicted by the trial court before the Act came into force. The Court held that S. 11(1) of the Act empowers an appellate court or the High Court to make an order under the Act, including an order under S. 6(1), even if the trial court could not have made such an order. The Court also held that the expression "found guilty" in S. 6(1) includes the finding of guilty made by an appellate court.
Issues: 1. Whether the High Court had jurisdiction to exercise its power under S. 6 of the Act in respect of the appellant, who was convicted by the trial court before the Act came into force? 2. Whether S. 11(1) of the Act empowers an appellate court or the High Court to make an order under the Act, including an order under S. 6(1), even if the trial court could not have made such an order? 3. Whether the expression "found guilty" in S. 6(1) includes the finding of guilty made by an appellate court?
Ratio Decidendi: 1. The Act is not retrospective in operation and, therefore, it will not apply to the appellant, as he was convicted before it came into force in Gurgaon District. 2. Section 11(1) of the Act, on the basis of which the learned counsel for the State advances most of his arguments has no relevance to the present appeal: the said sub-section applies only to a case where no appeal lies or is preferred against the order of a court declining to deal with an accused under S. 3 or S. 4 of the Act, and in the instant case an appeal lay to the Sessions Judge and indeed on appeal was preferred from the order of the Magistrate. 3. The provision that directly applies to the present case is S. 11 (1) of the Act, whereunder an order under the Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision. 4. The Sub-section ex facie does not circumscribe the jurisdiction of an appellate court to make an order under the Act only in a case where the trial court could have made that order. 5. The phraseology used therein is wide enough to enable the appellate court or the High Court, when the case comes before it, to make such an order. 6. It was purposely made comprehensive, as the Act was made to implement a social reform. 7. As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender there is no reason why the Legislature should have prohibited the exercise of such a power, even if the case was pending against the accused at one stage or other in the hierarchy of tribunals. 8. If the provisions of S. 6 (1) of the Act were read along with S. 11, we would reach the same result. 9. When S. 11 (1) says that an appellate court or a revisional court can make an order under the Act, it means that it can make an order also under S. 6(1) of the Act. 10. If so, "court" in S. 6(1) will include an appellate court as well as a revisional court. 11. If an appellate court or a revisional court finds a person guilty, under that section it shall not sentence him to imprisonment unless the conditions laid down is that section are satisfied. 12. Can it be said that the expression "the court by which the person is found guilty" does not include the appellate or revisional court ? 13. When an appellate court or a revisional court confirms a conviction made by a trial court or sets aside an acquittal made by it and convicts the accused, in either case if finds the accused guilty, for without finding the accused guilty it cannot either confirm the conviction or set aside the order of acquittal and convict him. 14. If the contention advanced by learned counsel for the State, namely, that the Act will apply only to convictionsmade by the trial court after the Act came into force, be accepted , it would lead to several anomalies: it would mean that the Act would apply to a conviction made by a trial court after the Act came into force, but would not apply to an accused, though his appeal was pending after the Act came into force: it would apply to the accused if the appellate court set aside the conviction and sent back the case to the trial court for fresh disposal, but would not if the appellate court itself convicted him. 15. On the other hand, if he expression "found guilty" was given the natural meaning it would take in the finding of guilty made by any court in a pending criminal proceeding in the heirchy of tribunals after the Act came into force.
Final Decision: The Supreme Court allowed the appeal, set aside the order of the High Court, and remanded the case to the High Court for consideration of the appellant's application under S. 6 of the Act.

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Judgment

SUBBA RAO, J. : (for himself and on behalf of K. C. Das Gupta J.) :

This appeal by special leave raises the question of jurisdiction of an appellate court to exercise its power under S. 6 of the Probation of Offenders Act, 1958 (Act No. 20 of 1958), hereinafter called the Act, in respect of an accused who was convicted by the trial court before the Act came into force.

2. The facts are not now in dispute. The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years. He was sent up for trial before the Magistrate, First Class, Palwal. The said Magistrate, on May 31, 1962, connected him under Ss. 451 and 354 of the Indian Penal Code and sentenced him to six month s rigorous imprisonment under each count and directed that the sentences should run concurrently. He further imposed a fine of Rs. 200/- on the appellant under S. 451 of the Indian Penal Code and ordered that, in default of payment of fine, he should undergo rigorous imprisonment for two months. The appellant was 16 years old at the time of his conviction. The Act was extended to Gurgaon District on September 1, 1962 and, therefore, at the time the appellant was convicted by the Magistrate, the Magistrate had no power or duty to make any order under the Act. The appellant preferred an appeal against his conviction and sentences to the Additional Sessions Judge, Gurgaon, who, by his judgment dated September 22, 1962, dismissed the appeal. Though by the time the Additional Sessions Judge disposed of the appeal the said Act had come into force, neither the appellant relied upon the provisions of the Act nor did the learned Additional Sessions Judge exercise his power thereunder. The revision filed in the High Court by the appellant was dismissed on September 27, 1962. The revision petition was dimissed in limine, but no ground was taken in the revision petition that the Additional Sessions Judge should have acted under S. 6 of the Act. After the revision petition was disclosed of, it appears that the appellant filed Criminal Misc. Petn. No. 793 of 1962 requesting the High Court to exercise its jurisdiction under S. 11 of the Act and to pass orders under Ss. 3, 4 or 6 thereof. The said application was also dismissed. Unfortunately the said application is not on the record and we are not in a position to know the exact scope of the relief asked for in the application and the reasons for which it was dismissed. The appellant filed a petition in the High Court under Art. 134(1)(c) of the Constitution for a certificate of fitness to appeal to this Court. One of the grounds for seeking such a certificate was that the High Court should have acted under S. 11 of the Act and passed orders under Ss. 3, 4 or 6 thereof. That petition having been dismissed, the appellant has preferred the present appeal to this Court by obtaining special leave.

3. Learned counsel for the appellant contends that, having regard to the admitted facts in the case, the High Court should have acted under S. 11 of the Act and released the appellant on probation of good conduct instead of sending him to prison. On the other hand learned counsel for the State argues that the Act is not retrospective in operation and, therefore, it will not apply to the appellant, as he was convicted before it came into force in Gurgaon District. Further, he contends that neither S. 11 of the Act nor S. 6 thereof, on the basis of the express phraseology used therein, can be invoked in the circumstances of the present case. In any view, he says that the appellant, not having raised this plea till after the revision petition was disposed of by the High Court, is precluded by his default to raise this contention at this very late stage.

4. The Act 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 individ

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1964 Supreme(SC) 130

An appellate court or the High Court has jurisdiction to exercise its power under S. 6 of the Probation of Offenders Act, 1958 in respect of an accused who was convicted by the trial court before the Act came into force.

Cases Referred (1)