Mohd. Hashim v. State of Up & Ors.

Judgment

The Judgment of the Court was delivered by DIPAK MISRA, J.

1Leave granted.

2Respondent Nos. 2 to 10 were prosecuted for the offences punishable under Sections 498-A and 323 of the Indian Pen.al Code (IPC) .and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'the 1961 Act'). The respondent Nos.2 and 3 were convicted under Section 498-A IPC and sentenced to undergo rigorous imprisonment for two. years and to pay a fine of Rs.1,000/- (Rupees one thousand only) each with the default clause. The other accused, i.e., respondent nos.4 to 10 were convicted for the offence punishable under Section 498-A of the !PC and sentenced to undergo simple imprisonment of six months and pay a fine ofRs.1,000/- (Rupees one thousand only) each with the default clause. All the accused persons were convicted under Section 323 of the IPC and Section 4 of the 1961 Act and sentenced to undergo rigorous imprisonment for six months on the first count and for a period of one year on the second score. They were also sentenced to pay fine with the stipulation of the default clause.

3The respondents challenge~ the judgment of conviction and order of sentence before the learned Sessions Judge, Unnao, U.P. in Criminal Appeal No.55of2013 who, in course of hearing, taking note of the fact that the counsel appearing for the appellants had abandoned the challenge pertaining to the conviction but only confined the argument seeking benefit under Section 4 of the Probation of Offenders Act, 1958 (for short, 'the PO Act'), extended the benefit as prayed for.

4Being grieved by the aforesaid judgment of the learned appellate Judge, the informant preferred Criminal Revision No.252 of20 I 3 before the High Court. In its assail, the counsel for the informant placed reliance on Sliyam Lal Verma vs. Central Bureau of Investigation 1, State Tlirougll SP, New Delhi vs. Ratan Lal Arora~, and State represented by Inspector of Police, Pudukottai, T.N. vs. A. Partfliban3 to buttress the submission that the benefit under Section 4 of the PO Act could not have been extended to the convicts regard being had to the nature of the offences and the punishment provided for the same. The High Court repelling the argument concurred with the opinion expressed by the learned Sessions Judge.

5We have heard Mr. Ashutosh Jha, learned counsel for the appellant, Ms. Pragati Neekhra, learned counsel for the State and Ms. Rashmi Singh, learned counsel for the respondents. As the controversy 1 (20I4J 15 sec 340 1 (2004 l 4 sec 590 ' (2006J 11 sec 473 ·MOHD. HASHIM v. STATE OF UP & ORS. related to the Probation of Offenders Act, we have also heard Mr. Ranj it Kumar, learned Solicitor General oflndia and Ms. Pinky Anand, learned Additional Solicitor General for the Union oflndia.

6There is no dispute over the fact that the respondents were convicted as ha:s been stated earlier. The question is whether the . approach of the fearned appellate Judge wllich have been concurred by the High Court is legally sustainable.

7I.n this context, it is pertinent to appreciate the scheme of the PO Act. Sectio1d of the PO Act confers power on the Court to release certain offenders after admonition. The said provision reads as follows:- "3. Power of cour.t to release certain offenders after admonjtion.-When any person is found guilty of having committed an offence punishable under section 379 or section 3 80 or section 3 81 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."

8Section 4 of the PO Act deals with the power of Court to release certain offenders on probation on good conduct. The said provisioffis as under:- "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 punishable with death or imprisonment for life and the court by which the person is found guilty is ofopinion 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 condu.ct, 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 withoutsureties, 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. ( 4)

The Collrt making a superv,ision 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 fum!sh one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

9Section 6 of the PO Act stipulates restrictions on imprisonment of offenders under twenty-one years of age. It is 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 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 (I) 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." We may note here that the appellate court. has exercised the power under Section 4 of the PO Act.

10It is submitted by the learned counsel for the appellant that as the respondents were convicted under Section 498-A ofIPC and Section 4 of the 1961 Act, the respondents could not have been conferred the benefit of probation on good conduct, for Section- 4 of the 1961 Act , prescribes a minimum sentence. Additionally, it is also canvassed by him that even if the said provision is applicable, the Court has not considered the nature of offences and other requisite aspects to extend the benefit under the said provision.

11We shall deal with the first aspect, that is, whether Section 4 of the 1961 Act prescribes a minimum sentence, first. In Sltyam Lal Verma (supra), a two-Judge Bench, after referring to Ratan Lal Arora (supra), has held thus:- "It is not in dispute that the issue raised in this app~al has been considered by this Court in State Through SP. New Delhi Versus Ratan !al Arora (supra) wherein in similar circumstances, this Court held that since Section 7 as well as Section 13 of the Prevention of Corruption Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine, in such circumstances claim for granting reliefunder the Probation of Offenders Act is not permissible. In other words. in cases where a specific provision prescribed a minimum sentence, the provisions of _ the Probation Act cannot be invoked. Similar view has been expressed in State Represented by Inspector of Police. Pudukottai. T.N. Vs. A. Parthiban (supra)." f Emphasis addedl

12In this regard, the learned counsel appearing for the Union of India has commended us to a three-Judge Bench Decision in Superintendent, Central Excise, Bangalore vs. Ballubafi• wherein the Court was dealing with the case where the respondent was convicted by the High Court under Rule I 26-P(2)(ii) of the Defence oflndia Rules which prescribes a minimum sentence of six months. Be it stated, the High Court had reversed the judgment of acquittal to one of conviction but directed that the respondent therein be released on probation of good conduct under Sections 3, 4 and 6 of the PO Act. Dealing with the applicability of the PO Act, the Court scanned the anatomy of the Defence oflndia Rules and the provisions of the PO Act and opined thus:- " ...

It would also be seen that Section 6 of the Probation of Offenders Act, 1958 puts a restriction on the power of the court to award imprisonment by enjoining on it not to sentence an offender to imprisonment ifhe is under 21 years of age and has committed an offence punishable with imprisonment but not with imprisonment for life except where it is satisfied that having regard to the circumstances ofthe,case including the nature of the offence and character of the offender it would not be desirable to deal with him under Sections 3 and 4 of the Probation of Offenders Act, 1958. The incompatibility between Sections 3, 4 and 6 of "r 1979) 2 sec 279 the Probation of Offenders Act, 1958 and Rule 126-P(2)(ii) of the DI Rules is, therefore, patent and does not require an elaborate discussion.

The view that the aforesaid provisions of the Probation of Offenders Act, .1958 are·' inconsistent with the provisions of the Dl Rules which cast an obligation on the court to impose a minimum sentence of imprisonment .and fine is reinforced by Section 18 of the Probation of Offenders Act, 1958 which saves the provisions of(l) Section 31 of the Reformatory School Act, 1897 (Act 8 of 1897), (2) sub-section (2) of Section 5 of · the Preventfon of Corruption Act, 1947 (Act.2of1947), (3) the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104of1956) and ( 4) of any law in force in any State relating to juvenile offenders or borstal schools, which prescribe a minimum sentence."

After so stating, the Court further proceeded to state that:- "The provisions of the Probation of Offenders Act, 1958, being, therefore, obviously inconsistent with:Rule 126~ P(2)(ii) of the DI Rules under which the minimum penalty of six months' imprisonment and fine has to be imposed, the former have to yield place to the latter in view of Section · 43 of the Defence oflndiaAct, 1962 which is later than the Probation of Offenders Act, 1958 and embodies a non obstante clause clearly overriding the. provisions of the enactments which contain inconsistent provisions including those of the Probation of Offenders Act to the extent of inconsistency.

The result is that the provisions of rules made , and issued under the Defence of India Act prescribin& minimum punishment which are mal1ifestly inconsistent with the aforesaid provisions of the Probation of Offenders Act are put on par with the provisions of the enactments specified therein so as to exclude them from applicability of the Probation of Offenders Act."

13It is profitable to state here that the Court referred to the decision in Arvi11d Moltm1 Sin It a vs. Amulya Kumar Biswas-' wherein it has been held thus:- "The broad principle that punishment must be proportioned ' ( 1974).4 sec 222 to the uffence is or ought to be of universal· applkation save where the statute bars the exercise of judicial discretion either in awarding puniShment or in releasing an offender on probation in lieu of sentencing him fort_hwith." -14. At this juncture, we must state with promptitude that the three- Judge Bench in Baltubali (supra) opined that the applicability of the PO Act as has been held in Arvind Mo/tan Sin/ta (supra) could not be taken aid of inasmuch as attention of the Court was not seemed to have been invited in the said case to Section 43 ofthe Defence oflndiaAct, 1962 which contains a 11011 obstante clause. 15:

The three-Judge·Bench while adverting to the concept of "minimum sentence", relied on the observations made in Balmbali (supra) which we have reproduced_ hereinabove, and opined that:- "The above observations also clearly show that where there is a ·statute which bars the exercise of judicial discretion in the matter of award of sentence, the Probation of Offenders Act will have no application or relevance. As Rule 126- P(2)(ii) of the DI Rules manifestly bars the exercise of judicial discretion in awarding punishment or in releasing an offend~r 01) probation in liel) of sentencing him by laying down a minimum sentepce of imprisonment, it has to prevail over the aforesaid provisions of the Probation of Offenders Act, 1958 in view of Section 43 of the Defence of India Act, 1962 which is later than the Probation of Offenders Act and has an overriding effect."

16In Rutan L(l/ Arom (supra) the learned single Judge of the Delhi High Court while upholding conviction of the accused under the Prevention of Corruption Act, 1988 further held him to be entitled to the benefits of Section 360 of the Code of Criminal Procedure. The Court adverted to Section 7 and Section 13 of the Prevention of Corruption Act which provide for minimum sentence of six months and one year respectively in addition .to the maximum sentence as well as imposition of fine. Reference was made to Section 28 that stipulates that the '' provisions of the Act shall be in addition to and not ih derog::ition ofany other law for the time being in force. Reliance was pla0«d on the decision in Ba/1ubali (supra) while interpreting the said provision and relying on the '!Uthority in Baltubali (supra) the Court ruled that Section 28 of the Prevention of Corruption Act had a tenor of S6ction 43 of the Defence oflndia Act. In that context, it observed:- ''Unlike the provisions contained in Section 5(2) proviso of .the old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded i.n writing, the Act did not carry any such power to enable the court concerned io show any leniency bele>w the minimum sentence sti'pulated. Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of . probation even under the Code."

17Tli.e said principle has been reiterated in State represented by Inspector of Po/ice,-Pudukoitai, T.N. vs. A. Partlliban 6•

18The issue that arises for consideration is whether minimum sentence is provided for offences under which the respondents have been convicted. On a plain reading of Section 323 and 498-A, it is quite cleitr that there is no prescription of minimum sentence. Learned counsel for the appellant woufo contend that Section 4 of the 1961 Act provides for minimum punishment. To appreciate the said contention, the provision is reproduced below:-. "4. Penalty for"demanding dowry.-If any person demands, directly or indirectly, from the parents or other . relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: PrQvided that the Court may, for adequate and special reasons to be ri'lentjoned in Hie judgment, impose a sentence of imprisonment for a term. of less· than six months."

19Learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six 11_1onths and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence .. The said submission· does not impress 6 (2006) I I SC 473 us in view of the authorities in Arvind Mohan Sinha (supra) and Rutan Lal Arora (supra). We may further elabor_ate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment.

Such discr~tion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum· of punishment _which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equa~ed with· a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have~ different implications, which should be recognized and accepted for the PO Act. 20: Presently, we shall advert to the second plank of the submission advanced by the learned counsel for the appellant. In Rattan Lal vs. State of Punjab7• Subba Rao, J ., speaklilg for the majority, opined thus:- "TheAct is a milestone in the progress of the modern liberal frend of reform in the field of penology.

H is the result of the recognition of the doctrine that the object of criminal · 1aw is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and · offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act; in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the 7 AIR 1965'

SC 444 circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections· 3 and 4 of the Act." We have reproduced the aforesaid passage to understand the philosophy behind the Act'.'

21In this regard, it is also. seemly to refer to other authorities to highlight how the discretion vested in a court under the PO Act is to be exercised. In Ram Prakaslt vs. State of Himaclutf Pradeslt 8, while dealing with Section 4 of the PO Act in the context of the Prevention of Food Adulteration Act, 1954, the Court opined that the word 'may' used in Section 4 of the PO Act does not mean 'must'. On the contrary, as has been held in the said authority, it has been made clear in categorical terms that the provisions of the PO Act distinguishes offenders below 21 years of age and those above that age and offenders who are guilty of con.imitting an offence punishable with death or imprisonmenl for life and those who are guilty of a lesser offence. Thereafter, the Court has proceeded to observe:- "While in the case of offenders who are above the age of 21 years, absolute discretion is given to the Court to release them after admonition or on probation of good conduct in the case of offenders below t11e age of2 l years, an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstar1ces of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act. (Ratan Lal vs. State of Punjab (supra) and Ramji Missir.vs. the State of Bihar (AIR 1963 SC I 088)."

22Be it noted, in the said case, keeping in view the offence under the Prevention of Food Adulteration Act, 1954, the Court declined to confer the benefit under Section 4 of the PO Act.

23We have referred to the aforesaid authority to stress the point that the Court before exercising the power under Section 4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under Section 4 of the PO Act. Be it stated i11 Dllfbir Sing It R AIR I 973 SC 780 ~UPREME COURT REPORTS vs. State of Harya11a and otlzers'-ii. has been held that Parliament has made it 9lear that only ifthe Court forms the opinion that it is expedienf to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court. to be expedient.

Explaining the word '.'expedient", the Court held thus:- "9. The word "expedient" had been thoughtfully employed by Parliament in the section so as to mean it as "apt and suitable to the end in view". In Black's Lall' Dictionary the word expedient is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G Pabri10 a three-Judge Bench or'this Court has .considered the word ."expedient". Learned Judges have . observed in para 21 thus: ';Again, the word 'expedient' used in this provisions, has · several shades of meaning. In one dictfunary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; --profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'.

In another ...s.J.1ijde, it means a· device 'characterised by mere,utility rather than principle, conducive to special advantage rather than to what is universally right' (see Webster's New lnternati_onal Dictionary).:' I 0. It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 ofthe PO Act in the context of casting a duty · on the court to take into account "the circumstances of the case including the nature of the offence ... ". This means Section 4 can be resorted to when the court considers the 9 AIR 2000 SC i 677 '" AIR I 974 SC 2233 MOHD. HASHIM v. STATE OF UJi' & ORS. , 967 circumstances of the case, particularly the nature of the - offence, and the court forms its opinion that it is suitable and appropriate.for accom,plishing a specified objec(ihat the offender cari be released on probation of good conduct."

24We have highlighte<:I these aspects for the guidance of the appe!late court as it has exercised the jurisdiction in a perfunctory manner and we are obligated to say that the High Court should have been well advised to rectify the error.

25At this juncture, learned counsel for the res.pondents would submit that no~rguments on merits were ad~anced before the appellate court except seeking release under the Po Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the court has to be guided bythe-provisions of the PO Act and the precedents of this Court. Regard being had to the facts and cifrumstances .. in entirety, we are also inclined to accept the submission of the learned counsel for the responde-nts that it will be open for them to raise all points b.efore t~~ appellate ~ourt on · merits including-seeking release under th& PO Act. -

26Resultantly, the appeal is allow:d, the judgment and qrder passed_ by the High Court and the appellate. court are-set· aside and the . matter is remitted to the appeilate c01.1rt for _disposal in accordance with law. Divya .Pandey Appeal allowed,