Section 6(1) of the Probation of Offenders Act mandates that a court shall not sentence an offender under 21 years of age to imprisonment unless it is satisfied that, having regard to the circumstances of the case, the nature of the offence, and the character of the offender, it would not be desirable to deal with the offender under Section 3 or Section 4 of the Act.

JUDGMENT : The Judicial Magistrate at Margao tried Mafaldina Fernandes on a charge under Section 380 I.P.C. and on the basis of plea of guilty entered by the accused he convicted and sentenced her on 29th of June 1967 to three months' rigorous imprisonment. The convict lodged an appeal in the Court of Session in which the only grievance made was that she being a first offender and a female of tender age being 16, she should not have been denied the benefit of the provisions of Section 3 of the Probation of Offenders Act, hereinafter called the Act. Faced with Section 412 of the Criminal P.C., which shuts out appeal in a case founded on plea of guilty except in the matter of legality of quantum of sentence the Sessions Judge decided to treat the memorandum of appeal as a petition for revision. He then made a reference to this Court recommending that the sentence be quashed and the case remanded to the trial court for determining if the provisions of Section 6 of the Act were attracted.

2. When the case came up before this Court for hearing on 22nd current, Shri Tamba, the learned Government Pleader, urged that it is not obligatory on the trial court to take into consideration the provisions of Section 6 of the Act even where the accused happens to be under 21 and as such no exception can be taken to the sentence imposed on the convict by the trial court. Shri Tamba also emphasised that the convict had stolen three gold chains from the house wherein she was employed as domestic servant and that since she had also disposed of a part of the stolen property it was clear that she had committed the offence after preparation and with deliberation and so she was not entitled to the benefit of the provisions of the Act. However, I have not been able to persuade myself into accepting the first submission made by Shri Tamba and the other submission I would leave open to be looked into by the trial court as ordered in the last part of this judgment.

3. Section 6 of the Act is in the following terms :

"Restrictions on imprisonment of offenders under twenty-one years of age -

(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-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."

A plain reading of the section would indicate that if the person in the dock is under 21 years in age and he is found guilty of having committed an offence punishable with imprisonment other than imprisonment for life the Court shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case, the nature of the offence and the character of the offender it would not be expedient to deal with him under Section 3 or Section 4 of the Act. Another duty enjoined by the section on the court is that if it happens to pass any sentence of imprisonment on the offender in such a case it has to record its reasons for adopting such a course. Shri Tamba frankly conceded that the trial court did not appear to have applied its mind to the applicability of the provisions of the Act before awarding the sentence of imprisonment to the accused. It would follow that the trial court had flouted positive injunction

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