Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.47-48 OF 2021
[Arising out of SLP(Crl) Nos.6283-6284/2020]
LAKHVIR SINGH ETC. ….Appellants
VERSUS
THE STATE OF PUNJAB & ANR. ….Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The appellants were youngsters aged 20 and 19 years when they fell
foul of the law. On 14.02.2003, at around 7.30 p.m., the appellants
alongwith co-accused Gurpreet Singh1
approached the complainant – PW1
to hire a taxi to go to a village. Enroute, when at their behest the car was
stopped, Gurpreet Singh caught hold of the complainant and the appellant
1 He faced trial before a Juvenile Court.
1
Jagdeep Singh took a dagger and inflicted 6-7 injuries on PW1’s forehead.
Appellant Lakhvir Singh inflicted 2-3 injuries on his abdomen and 1 injury
on his neck using a knife. The complainant was thrown out of his taxi and
the three people fled with the taxi. In pursuance to the reporting of the
crime by complainant, an FIR was registered on 15.02.2003 under Section
382 and Section 307 read with Section 34 IPC. Knife and dagger were
recovered alongwith the taxi and the trial Court framed charges under
Section 397 IPC. Post trial, the appellants were convicted by the trial
Court vide judgment dated 8.1.2005 and sentenced to undergo Rigorous
Imprisonment of 7 years each.
2. The appeal preferred by the appellants has been dismissed by the
impugned judgment dated 24.10.2019.
3. The appellants approached this Court by a special leave petition.
Annexed thereto, the compromise deed arrived at between the complainant
Amrik Singh and the appellants before us, in terms whereof the
complainant has stated that he did not want to pursue any action against the
appellants and has no objection to their release on bail or acquittal. The
2
appellants have already served about 50% of their sentence while in
custody.
4. On 3.12.2020, this Court while recording the aforesaid plea, issued
notice on the SLP and on the prayer for interim relief of bail while
simultaneously impleading the complainant as the 2nd respondent. On
18.12.2020, counsel for the State and respondent no. 2 entered appearance
and counsel for respondent no.2 confirmed that the dispute had been
amicably resolved. However, counsel for respondent no.1 submitted that
the minimum sentence provided by the statute under Section 397 is 7 years
and the same cannot be reduced below that period. On this submission,
learned counsel for the appellants sought benefit under the Probation of
Offenders Act, 1958, hereinafter referred to as ‘the Act’. It is on the limited
conspectus of the aforesaid aspect that on 11.01.2021, we granted leave and
reserved the judgment upon conclusion of arguments and the parties having
filed their respective synopsis.
The legal position
5. The plea of the learned counsel for the State respondent no.1 is based
on the judgment of this Court in the case of State of Madhya Pradesh v.
3
Vikram Das2
opining that the courts cannot impose less than the minimum
sentence prescribed by the statute. He thus seeks continuing detention of
the appellants to serve out the remaining sentence. On the other hand,
learned counsel for the appellants has sought the benefit under the said Act
in view of the age of the appellants when the offence was committed.
6. We may notice that 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. The said provision reads as under:
“6. 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
2
(2019) 4 SCC 125.
4
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.”
7. A view was taken by a 4-judge bench of this Court in Ramji Missar
vs. State of Bihar,
3 while seeking to apply the said provision to offenders
who were under the age of 21 years on the date of sentencing and not on
the date of commission of offence. In Masarullah v. State of Tamil Nadu4
there are observations to the effect that “in case of an offender under the
age of twenty one years on the date of commission of the offence, the Court
is expected ordinarily to give benefit of the provisions of the Act and there
is an embargo on the power of the Court to award sentence unless the Court
considers otherwise, 'having regard to the circumstances of the case
including nature of the offence and the character of the offender', and
3 AIR 1963 SC 1088.
4
(1982) 3 SCC 458
5
reasons for awarding sentence have to be recorded. Considerations relevant
to the adjudication of this aspect are, circumstances of the case, nature- of
the offence and character of the offender. It is, therefore, necessary to keep
in view the afore-mentioned three aspects while deciding whether the
appellant should be granted the benefit of the provisions of the Act.” But
in the subsequent judgment in Sudesh Kumar v. State of Uttarakhand5
the
judgment of the four Judge Bench in Ramji Missar (supra) was noted as
possibly having escaped attention. Thus, the legal position was clarified as
the one being reflected in Ramji Missar (supra). 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.6
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.
5
(2008) 3 SCC 111
6
Ishar Das v. State of Punjab, (1973) 2 SCC 65, pr.7
6
8. In Satyabhan Kishore v. State of Bihar,
7
this Court had noted the
distinction between Section 6, which is in the nature of an injunction for
courts to follow as distinct from Section 3 or 4 of the Act; which are
discretionary in nature. The relevant provisions read as under:
“3. Power of court to release certain offenders after
admonition.—When any person is found guilty of
having committed an offence punishable under section
379 or section 380 or section 381 or section 404 or
section 420 of the Indian Penal Code, (45 of 1860) or
any offence punishable with imprisonment for not more
than two years, or with fine, or with both, under the
Indian Penal Code or any other law, and no previous
conviction is proved against him and the court by which
the person is found guilty is of opinion that, having
regard to the circumstances of the case including the
nature of the offence, and the character of the offender,
it is expedient so to do, then, notwithstanding anything
contained in any other law for the time being in force,
the court may, instead of sentencing him to any
punishment or releasing him on probation of good
conduct under section 4, release him after due
admonition.
Explanation.—For the purposes of this section,
previous conviction against a person shall include any
previous order made against him under this section or
section 4.
4. Power of court to release certain offenders on
probation of good conduct.—(1) When any person is
found guilty of having committed an offence not
7
(1972) 3 SCC 350.
7
punishable with death or imprisonment for life and the
court by which the person is found guilty is of opinion
that, having regard to the circumstances of the case
including the nature of the offence and the character of
the offender, it is expedient to release him on probation
of good conduct, then, notwithstanding anything
contained in any other law for the time being in force,
the court may, instead of sentencing him at once to any
punishment direct that he be released on his entering
into a bond, with or without sureties, to appear and
receive sentence when called upon during such period,
not exceeding three years, as the court may direct, and
in the meantime to keep the peace and be of good
behaviour:
Provided that the court shall not direct such
release of an offender unless it is satisfied that the
offender or his surety, if any, has a fixed place of abode
or regular occupation in the place over which the court
exercises jurisdiction or in which the offender is likely
to live during the period for which he enters into the
bond.
(2) Before making any order under sub-section
(1), the court shall take into consideration the report, if
any, of the probation officer concerned in relation to the
case.
(3) When an order under sub-section (1) is made,
the court may, if it is of opinion that in the interests of
the offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a
probation officer named in the order during such period,
not being less than one year, as may be specified
therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision
of the offender.
8
(4) The court making a supervision order under
sub-section (3) shall require the offender, before he is
released, to enter into a bond, with or without sureties,
to observe the conditions specified in such order and
such additional conditions with respect to residence,
abstention from intoxicants or any other matter as the
court may, having regard to the particular
circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of other
offences by the offender.
(5) The court making a supervision order under
sub-section (3) shall explain to the offender the terms
and conditions of the order and shall forthwith furnish
one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation officer
concerned.”
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. We may also note
that 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.
9
In this regard, under sub-section (2), before making any order under subsection (1), the court is required to take into consideration the report, if any,
of the probation officer concerned in relation to the case.
9. We may note that the aforesaid 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.8
10. We may notice that since we are concerned with 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. In a subsequent
judgment of this Court9
, it was noted that in Masarullah (supra), this Court
had calculated the age of the convict as on the date of commission of the
offence incorrectly and there has been no discussion of the potential tension
8 Masarullah vs. State of Tamil Nadu, 1982 3 SCC 458, pr.6.
9 Sudesh Kumar vs. State of Uttarakhand, (2008) 3 SCC 111.
10
between grant of probation under the Act and the mandatory minimum
sentence of 7 years under Section 397 of the IPC.
11. The legal position insofar as invocation of Section 4 is concerned has
been analysed in Ishar Das vs. State of Punjab10 elucidating that nonobstante clause in Section 4 of the Act reflected the legislative intent that
provisions of the Act have effect notwithstanding any other law in force at
that time. The observation in Ramji Missar (supra) was cited with
approval to the effect that in case of any ambiguity, the beneficial
provisions of the Act should receive wide interpretation and should not be
read in a restricted sense.
12. The aforesaid aspect is confirmed by the wording of the said Act
which reads as under:
“18. Saving of operation of certain enactments. —
Nothing in this Act shall affect the provisions of section
31 of the Reformatory Schools Act, 1897 (8 of 1897), or
sub-section (2) of section 5 of the Prevention of
Corruption Act, 1947 (2 of 1947), or of any law in force
in any State relating to juvenile offenders or Borstal
Schools.”
10 (1973) 2 SCC 65.
11
13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947
(hereinafter referred to as ‘the PC Act’) prescribes a minimum sentence of
imprisonment for not less than 1 year, an exception was carved out keeping
in mind the application of the Act. In Ishar Das (supra), this Court noted
that if the object of the legislature was that the Act does not apply to all
cases where a minimum sentence of imprisonment is prescribed, there was
no reason to specifically provide an exception for Section 5(2) of the PC
Act. The fact that Section 18 of the Act does not include any other such
offences where a mandatory minimum sentence has been prescribed
suggests that the Act may be invoked in such other offences. A more
nuanced interpretation on this aspect was given in CCE vs. Bahubali11. It
was opined that the Act may not apply in cases where a specific law
enacted after 1958 prescribes a mandatory minimum sentence, and the law
contains a non-obstante clause. Thus, the benefits of the Act did not apply
in case of mandatory minimum sentences prescribed by special legislation
enacted after the Act.12 It is in this context, it was observed in State of
Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a
sentence less than the mandatory sentence prescribed by the statute. We
11 (1979) 2 SCC 279.
12 State vs. Ratan Lal Arora, (2004) 4 SCC 590.
12
are of the view that the corollary to the aforesaid legal decisions ends with
a conclusion that the benefit of probation under the said Act is not excluded
by the provisions of the mandatory minimum sentence under Section 397
of IPC, the offence in the present case. In fact, the observation made in
Joginder Singh vs. State of Punjab13 are in the same context.
The factual position
14. 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. There is no adverse report against them
about their conduct in jail otherwise the same would have been brought to
our notice by learned counsel for the State. Faced with the aforesaid legal
position, 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.
13 ILR (1981) P&H 1
13
15. We, thus, release the appellants 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.
16. The appeals are disposed of in the aforesaid terms leaving the parties
to bear their own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[HRISHIKESH ROY]
NEW DELHI.
JANUARY 19, 2021.
14
