Lakhvir Singh etc. vs The State of Punjab & Anr.

Probation of Offenders Act, 1958: s.6 – Appellants were convicted by trial court for offence under s.397 IPC and sentenced to undergo rigorous imprisonment of seven years each – High Court dismissed the appeal against the conviction by trial court – Appellants filed special leave petition and annexed compromise deed arrived at between the complainant and the appellants in terms whereof the complainant had stated that he did not want to pursue any action against the appellants and has no objection to their release on bail on acquittal – Appellants have already served about 50% of their sentence while in custody – The prosecution however objected that the minimum sentence provided by the statute under s.397 IPC is seven years and the same cannot be reduced below that period – On this submission, the appellants-convicts sought benefit under the Probation of Offenders Act – Held: Appellants were below 21 years of age as on the date of offence – The benefit of probation under the Act is not excluded by the provisions of the mandatory minimum sentence under s.397 of IPC, the offence in the present case – Appellants have not served out the minimum sentence of seven years though they have served about half the sentences – They were aged under 19 and 21 years of age as on the date of offence but not on the date of sentence – The redeeming feature in their case is that the person who suffered, appears to have forgiven them, possibly with the passage of time – No adverse report has been brought to notice against them about their conduct in jail – Fit case to extend benefit of probation to the appellants under the Act in view of the provisions of s.4 of the Act on completion of half the sentence – Appellants are released on probation of good conduct under s.4 of the Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they will maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence – Penal Code, 1860 – s.397. Probation of Offenders Act, 1958: s.4 – Essential feature of – Held: “notwithstanding” contained in s.4 permits, despite anything contained in any other law for the time being in force, the court to release a person on bond, with or without sureties, for a period of three years instead of sentencing him in order to ensure that he keeps peace and good behaviour – In this regard, under sub-section (2), before making any order under sub-section (1), the court is required to take into consideration the report, if any, of the probation officer concerned in relation to the case.

Probation of Offenders Act, 1958: s.6 – Determining factors while giving benefit under – Held: The relevant aspects while giving benefit under s.6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer’s report.

Probation of Offenders Act, 1958: s.4 and s.6 – Distinction between – Held: s.4 is distinct from s.6 as it is discretionary in nature while s.6 provides that a court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report.

Probation of Offenders Act, 1958: s.6 – Applicability of – Held: Appellants were under 21 years of age on the date of the offence and not on the date of conviction, s.6 would not come to their aid.

Disposing of the appeals, the Court

HELD: 1. The Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. Section 6 of the said Act, as per its own title, provides for restrictions on imprisonment of offenders under twenty-one years of age. [Para 6][275-B-D]

State of Madhya Pradesh v. Vikram Das (2019) 4 SCC 125: [2019] 3 SCR 691 – relied on.

2. The rationale is that the underlying purpose of the provision being reformative – Section 6 being a special provision enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals. In the facts of the present case, the appellants are stated to be below 21 years of age as on the date of offence. The sentencing order was passed by the trial Court noting that the appellants committed an offence of serious nature against a poor person and were thus disentitled from the benefits under the said Act or under Section 360 Cr.P.C. [Para 7] [276-D-E]

3. In the case of the appellants, Section 3 would have no application taking into consideration nature of offence. However, Section 4 could come to the aid of the appellants as the offence committed, of which they have been found guilty, is not punishable with death or imprisonment for life. However, the trial court opined against the appellants. Also the “notwithstanding” contained in Section 4 permits, despite anything contained in any other law for the time being in force, the court to release a person on bond, with or without sureties, for a period of 3 years instead of sentencing him in order to ensure that he keeps peace and good behaviour. In this regard, under sub-section (2), before making any order under sub-section (1), the court is required to take into consideration the report, if any, of the probation officer concerned in relation to the case. [Para 8][278-D-G]

Satyabhan Kishore v. State of Bihar (1972) 3 SCC 350 – relied on.

4. Section 4 is distinct from Section 6 as it is discretionary in nature while Section 6 provides that a court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer’s report. [Para 9][278-G-H; 279-A]

5. The appellants who were under 21 years of age on the date of the offence and not on the date of conviction, Section 6 would not come to their aid. The benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC. [Paras 10, 13] [279-A-B; 280-C-D]

Ramji Missar vs. State of Bihar AIR 1963 SC 1088 : [1963] Suppl. SCR 745 ; Ishar Das vs. State of Punjab (1973) 2 SCC 65 : [1972] 3 SCR 312 ; Joginder Singh vs. State of Punjab ILR (1981) P&H 1 – relied on.

6. The facts of the present case are that the appellants have not served out the minimum sentence of 7 years though they have served about half the sentences. They were aged under 19 & 21 years of age as on the date of offence but not on the date of sentence. The redeeming feature in their case is that the person who suffered, appears to have forgiven them, possibly with the passage of time. No adverse report has been brought to notice against them about their conduct in jail. This is a fit case that the benefit of probation can be extended to the appellants under the said act in view of the provisions of Section 4 of the said Act on completion of half the sentence. The appellants are released on probation of good conduct under Section 4 of the said Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence. [Paras 14, 15][280-E-G; 281-A]

Masarullah v. State of Tamil Nadu (1982) 3 SCC 458 ; Sudesh Kumar v. State of Uttarakhand (2008) 3 SCC

111 : [2008] 2 SCR 146 ; CCE vs. Bahubali (1979) 2 SCC 279 : [1979] 1 SCR 1104 ; State vs. Ratan Lal Arora, (2004) 4 SCC 590 : [2004] 1 Suppl. SCR 631 – referred to.