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2008(1) Supreme 651
SUPREME COURT OF INDIA
C.K. Thakker & P.P. Naolekar, JJ.
Sudesh Kumar — Petitioner
versus
State of Uttarakhand — Respondents
Appeal (crl.) 204 of 2008
Decided on : 29.01.2008
[(1976) 4 SCC 310, (1984) 3 SCC 123, (1984) Supp. SCC 228], AIR 1963 SC 1088 — Relied upon.
Probation of Offenders Act, 1958- Section 6- Interpretation of -Object of Section 6 of Act, is to see that young offenders are not sent to jail for the commission of less serious offences mentioned therein because of grave risk to their attitude to life to which they are likely to be exposed as a result of their close association with the hardened and habitual criminals who may happen to be the inmates of the jail- Section 6 lays down an injunction as distinguished from discretion under Sections 3 and 4 not to impose a sentence of imprisonment on an offender, unless reasons are recorded. (Paras12, 13)
(1972) 2 SCC 626, (1972) 3 SCC 350 — relied upon.
Probation of Offenders Act, 1958- Section 6-Object and purpose of the Probation of Offenders Act, 1958 for applying the relevant provisions to the accused are different and cannot be said in pari materia with the Juvenile Justice Act, 1986 and the Juvenile Justice (Care and Protection of Children) Act, 2000 — The Court would not construe a Section of a statute with reference to that of another statute unless the latter is in pari materia with the former — Therefore, a decision made on a provision of a different statute will be of no relevance unless underlying objects of the two statutes are in pari materia — The decision interpreting various provisions of one statute will not have the binding force while interpreting the provisions of another statute. (Para 20)
Facts of the Case :
1.Appellant along with other accused person was convicted herein in the instant case u\s 392 r\w 34 of IPC and Section 25 of Arms Act.
2.Present Appeal has been filed on plea that since accused appellant on date of offence, was below 21 years of age ,as such he was entitled to consideration and benefit under Section 6 of Act.
Findings of the Court
The Court held that Section 6 of Act applies to accused who is under 21 years of age on date of imposition of punishment by trial court and not on date of commission of offence. If on date of order of conviction and sentence by trial court accused is below 21 years of age provisions of Section 6 of Act applies in full force. Even if date of birth of accused was taken to be 28.6.1962 as alleged by him in petition, on date of delivery of judgment of conviction and sentence on 26.7.1985 by Sessions Judge he was more than 21 years of age and hence was not entitled to benefit under Section 6 of Act. That apart, question of applicability of Act had been raised for first time while filing special leave petition. The accused had not claimed benefit under Section 6 of the Act during trial before Additional District & Sessions Judge or before High Court. Only material which was placed before Sessions Judge or High Court was statement recorded of the accused appellant under Section 313 Cr.P.C. wherein age of accused was given as 20 years.Appeal having no merit ,dismissed.
Result : Appeal dismissed.
judgment
C.K. Thakker, J. —
1.I have had the benefit of going through the judgment prepared by my learned Brother. I am in agreement with him that the appeal deserves to be dismissed. I, however, decide the appeal on the second ground that on the facts and in the circumstances of the case, the appellant has failed to make out a ground that he was less than 21 years of age at the time of commission of offence.
2.As observed by my learned Brother, the accused had not claimed benefit of Section 6 of the Probation of Offenders Act, 1958 either before the trial Court or before the High Court. My learned Brother has also referred to Yaduraj Singh & Ors. v. State of U.P.,1 (1976) 4 SCC 310 wherein this Court did not allow a new plea as to age of the accused to be raised for the first time in this Court.
3.In Sushil Kumar Mehrotra v. State of Uttar Pradesh,2 (1984) 3 SCC 123, a similar plea was raised for the first time by the appellant-accused in this Court against his conviction for an offence punishable under Section 302 read with Section 34 and Section 394 of the Indian Penal Code (IPC). It was held that the contention of the accused that he was 15= years of age at the time of occurrence was a complete after thought and refused to grant the benefit on that basis.
4.It is, no doubt, true that the provision is beneficial and benevolent in nature and no technical objection should be raised that such plea was not taken before the Courts below. [Gopinath Ghosh v. State of West Bengal,3 (1984) Supp. SCC 228]. But in my opinion, there must be credible and trustworthy evidence in support of such plea. In the present case, a certificate in the form of Scholar Record & Transfer Certificate is annexed wherein the date of birth of the appellant was shown as June 28, 1962. The certificate was not on record either before the trial Court or before the High Court. From the True Copy, it is clear that it is purported to have been issued by the Principal only on February 10, 2007. Thus, it cannot be said that there is credible evidence or trustworthy material that the appellant was less than 21 years of age at the time of commission of offence. In my considered opinion, such question cannot be permitted to be raised for the first time in this Court and I am in agreement with my learned Brother on that point.
5.Since the appeal can be decided on this ground, I refrain from expressing any opinion on the question dealt with and decided by my learned Brother on interpretation of Section 6 of the Act.
6.The appeal is accordingly dismissed.
P.P. Naolekar, J. —
Leave granted.
7. The appellant was convicted by the judgment and order dated 26.7.1985 passed by the Additional District & Sessions Judge, Dehradun, along with another accused person, under Section 392 read with Section 34 of the Indian Penal Code (IPC) and sentenced to undergo five years rigorous imprisonment and further to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. The appellant was further convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. In appeal preferred by the appellant, the High Court has confirmed the order of conviction and sentence by its order dated 9.7.2007.
8.The case of the prosecution in brief is that one Jagdish Prasad was wholesale beedi merchant and carried on his business in the name and style of M/s. Madrasee Basant Beedi in Vikasnagar, District Dehradun. Jagdish Prasad used to go to collect his dues from the retailers on every 15th day. On 7.3.1981, he went to Purola, Badkot for realization of his dues. Along with other persons, he was travelling in the car which was being driven by the driver Gyanendra Singh. While returning to Vikasnagar from Purola, they had stopped at the curve of Katta Pather and alighted from the car. Four miscreants came on scooter and parked the said scooter in front of the motor car. Two miscreants were armed with revolvers and the rem
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