Jugal Kishore Prasad v. State of Bihar

Judgment

II JUGAL. KISHORE PRASAD STAlE OF BIHAR August 16. 1972 [1. M. SHELAT, I. D. DuA AND H. R . .KHANNA, JJ.] ~~!ba:ion ,o,h1 o,Demfer;r Act, 1(20 o,t 1958). II, 6-Convicticns tor obtDU p11nu,.. 1t w m~ruonTMnt or 1/e or leJ>ur ttrm-Witnh below 21 ytars can mvoke uction. tr o.tu:rt. The appellant, who was les!l. than 21 yean of age, waa convicted far an oft'~.:;ce . under s. 326 read 'Mth. t. 1<40 I.P.C., and was sentenced to 3 years 1111pnsonment • . On the question whether he could claim the bellllt of s. 6 of the Probalton of Offenders Act, 1958, HELD : ( 1)

The Act Wa! enacted with a view to provide for the ·rek:ase o! offenders of certain categora:.. on probation or after due admoa.ition with the object of preventing the conver!ion of youthful offenders of lts5 than 21 yean ~into obdurate c:rimiiWs IIlia result of their a.s5o~atioa with hardened criminal! dl mature a~ in the jail Where, however, tb ofi'enc.e tor which a person has been convicted is of a serious naturo puni!hable with imprisonment for life, or i~ one of thoae speCified in a. IS of the Act, the benefit of the Act woul~ not be available. [877G-H; 879A-CJ (2) '[he appellant, on being convicted for the offence under a. 3l0 re:od with a. 149. I.P.C., was liable to be punished with impruonmenl r.r li!e. Therefore. he would not be entitled to the beneftt of ,_ 6 of 1U Probation of Offenders Act. To bold othel"'''t'iee would be treatinJ the 'lt'il~ir.! 'but not with imprisonment for life' in the section, as oti~. contra,ry to rules ot construction. (878B-GJ (3)

The 'lact that impri5onmeot for a lesser term can also be a~ard.ed for the offence would not take it out of the categJry of offent'CS pun~ble with impruonment for life. [8780·Hl . Som Natfr Puri v. State of Rajattlran, A.I.R. 1972 S.C. 1•90, followea. CRntrNAL APPELLATE JURISDICTION: Criminal Appeal No, 46 of J 969 . .4 p~l under Article 134 (1 )(c) of the Co~mrrgo~ 96~£ lndia from tbe juds~ment and ~rd~ 1daAted ~~: 1 r 6 of 1966: of Che Patna Hi~h Court in Cnmma ppea S M M . h d S S Jaulwr for the nppell::mt. ts ra an B. P. Jha, lor the respondent. The Judgment of the Courl was delivered by hlch arises for deteriiiJ.JlatJon J. The short quC-'tion w Patna High Court is wbeln thU appeal on certificnte granted b~ 1 ear-~ of age on the date lher the appellant who was lc:ss = y tion 326 read wit~ 8ec· or hi'! ronviction for an offence fr· sec the benefit of sectton 6 tion 149 Indian Penal Code, can 195gn(Act No. 20 of 1958). or the Prob<~tion of Offenders Act, . I. I I 816 . sUPJJ!ME CO'llllT :&EPOI.TS Uan and fiveotherS. who belong to. ~I.agc Mand.il ap~aya.,t were tried in the court of Additional Sessions in d 15~ct for offences under sections 147, 148, 307,, 323 and 111 ge ;~th ~tion 149 Indian Penal Code and S;CCtion 25 of Act.

Jugal Kishore appellant 'Yas convict~ under 5eetion 326 read with section 149 and .sectton !48 ~Penal Code and was sentenced to undergo ngoro.us IID.P'JSOilJ?lent for a period of five years on the first COilDt and ngorous unPnsonment for a period of two years on the second count. The sentcnce5 awarded to the appellant were ord~red to run c~ncurrently. The other five accused were also conVlcted for vanous offences and were sentencd on those counts. On appeal the Patna High Court as per judgment . ~a~ January 22 1968 acquitted two of the accused. The convtction <>f the appe'Uant for offences under section 326 read with section 149 and 148 Indian Penal Code was maintained. The sentence of the a!)pel!ant for the offence under section 326 read with section 149 Indian Penal Code wa'! reduced from five years to three years. The sentence for the offence under section 148 ·Indian Penal Code was, however, maintained.

The conviction. of the other three accused was maintained for som'=!' of the offences, and they were awarded sentences of impnsonmcnt on that count. After Ll-)e pronouncement of the jud~ment by the High Court, an app!icatiot) was made on behalf o{ the appellant that his case be deal with under t.lJe Probation of Offeuders Act on the ground that hCJ was below 21 years of age at the time of his conviction bv the trial court. This application was reject~ by the High Court as per · order ~ated December 12, 196R . n the ground that the offence for wh1ch _the al)~llant had been convicted wa'> t~unic:l,able wi1h imnric;onment for life, and as such. the provisions of Probation of Offenders Act could no be invoked in his case. On prayer made by -the appellant, the Hi~h Court certified the case to be fit for appeal t~ th~ ~upreme Court a<~ it involved the question relating to the apohcab11lty of the Probation o£ Offend'!n Act.

1be appellant and his companions were tried on the allegation that on ~to!>er 14, 1964- at about 10 a.m., while Madho Saran was getun~ hiS field bearing No. 1678 ploughed bv hi3 vlouobman Raks~va Mahto. the appellant and Rl!hu accused went there and f~esttoned Madho S~ran for cuttin~ th~ ridge between field No. M 78 and 1719. F1eld No. 1719 belonged to the avpe'lant ~ho Saran went to his house and narrat~d the incident to biJ Qtb her ~adho Saran. Madho Saran and Sadho Saran aton~ ~ith ba ers entheycame out of thdr house and while they were near a 30rrage, m~ ~0 accusa;J who were accompanied bv aboUt h person of theJr villue. One of the accused namelv Hira La!. S 0 was arm~ with. a ~n. fired a shot as a ~ult of whlch SadbO aran wa! h1t on bl! h'!ad. Sadho Saran feU down whe~r 0 .J. K. PRASAD V. BIHAR. (Khanna, I.) the other accused, including the appellant who was armed ·th ~arasa. c~used further injuries to Sadho Saran and his~~ pawons wtth sharp-edged and blun~ weapons.

The injur~ were thereafter taken t~ Jehanabad Hospnal. On receipt of intimation from the doctor .mcharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran N~d Kis~ore, one of the accused, also lodged a report at th~ pollee station .. questi~n w~th which we are concerned in this appeal, as menvoncd earlier, lS whether the appellant can claim tho benefit of the Probation of Oifenders Act. The appellant gave his age to be 19 years in his statl:ment under Section 342 of the Code of Criminal Procedllfe, and the case has been argued before us on the a.asumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Jr~dge. lbe main offence for which the apPellant has been convicted is section 326 re&i with sectio& 149 Indian Penal Code.

Section 326 deals with the offence of voluntarily causing grievous hurt by danger01ts weapons or means and the punishment prescribed for Mle offence is impri~oftment for life, or imprisonment of either description for a term which may exrend to ten years. The convicted person shall also be liable to pay fine. Ac~:ording to section 149 of the Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members _of that assembl_y knew to be likely to be committ~d in prosecu_tJ<?n of that ObJect, ~ery person who, at the time of the comnuttmg of that offence, 1s. ~ member of the same assembly, is guilty of that off~nce.

It Js, therefore, manifest that the appellant on. ~ing convxctc:d for the offence under section 326 read with secnon 149 In~an Pe~al Code was liable to be punished for imprisonment.for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine. The P.(obation of Offenders Act was enacted in )958 wi~ a view to provide for the release of offenders of cert31D categones on probation or after due admonition and for ~atters ~ecte1 therewith.

The object of the Act is to prevent e converst~n o vouthful offenders into obdurate criminals as a .result of therr association with hardened criminals of ma~ure ~go tne~in.t~~t~; ful offenders are sentenced to un.dergo unpnsonm d · 1 th · field above object is in c~nsonance. wtth ~~ ~{:~~t :ee':na: toe bring of penology, nccordtn~ to whJ~h eff e individual offenders and about correction an~ r~fo"!lat~on ~~ern criminal ;urisprudence not to .resort to retnbuttye JUSttce. 'minal and that gooJ many r~mses that no one 1S a b;<>ro ~~omic milieu. Although net cnmes are the vroduct of soc!~· =nnls considerable stre~s has much can be done for hardencu cnm. j I I I· I ii: If... : I .. i! . [· ·I I i78 SUPREME COUitT REPOI<·. ~' [1973] 1 ~ beon laid on bringing about reform ot ~oung ~ffender~ n?t &Uilty ol ve serious offences and of :prevenung their asso7~tion with kUcteZed criminals. The Act g~ves ~tatutory recogrutioa. to the above objective.

It is, thereforo p~oVIded ~at .youthful offenders tbould not be sent to jail. except m certam. crrcumst!Wces. Befcxe, however, the benefit of the Act can be mvoked, It has to be Jlaown that the convicted person even ~ough 1~ t~an ~1 years. 8 of age, is not guilty of an offenco purusbable w.1th lmpnsonment for life. This is clear from the language of section 6 of the Act. S.ll-section ( 1) of that section reads as under :

"When any person under twenty-Qne years of age is founc! 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 rcgarrl 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 ;f tho Ccurt passes any sen~ n tence of imprisonment on the offender it shall record its reasons for doing so." Mr. Misra on .behalf of the appellant has urged that as the olfence under section 326 read with section 149 Indian Penal C~de. is p_unishable not only with imprisonment for life but a!iO With Jn:tpnsonment which may extend up to ten year:;, the benefit of sect1_on ~ of the ~c.t can be invoked by the aopcl!ant.

This con:entl~·u, m our Opllllon, is not well founded Plain readin" of sechon 6 makes it manifest that it deals with person.; u;dcr I:'Wen~-one vem:s of ago who are found guilty of.having committed an ° encc_ PUnishable with imprisonment but not with· imnrison· · me.nt for life As un· · t ~nsonment or l•fe can also be awarded for ~edoffence under section 326 read with section 149 Indian Penal enotit~~a 1~e~~ 0 !1 fo~ndb guilty o( suc~l ah offence would not. be would have th~~ t ~ f ~nefit_ of section 6 .. To hold otherwlS.:. ment for lite" and ~~futgnonng tho wor<!s "but not with impris?ni!f plainly not ermissi them t~ bo OtiOGe. Such a construcr;on that the offen~es excl~~-d 'f0 alsf canno~ subscribe to t~e vt<)W only those off,.nce~ w e . rom ~ tc purv1ew of the secuon are ment for life a~d not ~rem! pumshment prescribed is i.nwrisop· the 'ection does not war a csscr term, for the language used tn nlain meaning of the sec~ant. such a. view.

On the contrary, the ?Y a. person who is con~~ that the section cannot be invok.ed 1mpnsonment for life Th f for an offence punishable wtth term can also be awuded f 6 act that imprisonment for a Jesser the cat~ory of 'offences ~r .the offenc_o would not take it out of The policy underlying: tlt~ ~able wuh imprisonment for lif;· c appears to be that it is only Ill J, K, PRASAD V. BII-lAR (Khaii!W, J.) H7fJ cases of not very serious natm:e, viz., offences not pumshable with imprisonment for life that the convicted person should have the benefit of provisions of the Act. Where, however, the offence for which a person has been convicted is of a serious nature punish~ able with imprisonment for life, the benefit of the Act would not be permissible in his case. Likewise, there are certain offencefi like thOSe under the Prevention of Corruption Act wherdn the convicted person cannot claim the protection of the Act.

Section 18 of the Act expressly excludes such offences from the purvie"' .of the Act. In the case of Som Nath Puri v. State of Rajastlwn(l) the ap~llant had been convicted for an offence under section 409 Indian Penal Code. Punishment for the offence under s~ction 409 Indian Penal Code is the same ac; for the offence under section 326, namely, imprisonment for life, or imprio;onment of either description for a term which may extend to ten years and the liability to pay fino. It was h~ld by this Court that in such 3. cas=: the provisions of section 4 of the Pmbation of Offenders Act cannot ·be invoked. It may be mentioned that section 4 of the Probation of Offenders Act also excludes from its operation persor,s convicted of offences punishable with imprisonment for life. J n that connection, the Court observed :

"As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only apolicablb to a case of ~ person found guilty of having committed an offence not punishable with death or imprisonment for life." We, therefore, hold that the appellant cannot invoke th.e bene~ fit of section 6 of tho Probation of Offenders Act. The appeal fails and is disnissed. Appel1ant to surrender to the bail bond. App~al dismiss~d • .. (1) A.l.R. 1972 S.C. 1490.