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PETITIONER: JUGAL KISHORE PRASAD

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT16/08/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. DUA, I.D.

CITATION:  1972 AIR 2522            1973 SCR  (1) 875  1972 SCC  (2) 633  CITATOR INFO :  R          1974 SC  35  (3)

ACT: Probation  of Offenders Act, (20 of 1958), s.  6--Conviction for offence punishable with imprisonment for life or  lesser term-Whether accused below 21 years can invoke section.

HEADNOTE: The  appellant,  who  was less than 21  years  of  age,  was convicted  for  an offence under s. 326, read  with  6.  140 I.P.C..  and was sentenced to 3 years imprisonment.  On  the question  whether he could claim the benefit of s. 6 of  the Probation of Offenders Act, 1958, HELD  : (1) The Act was enacted with a view to provide  ’for the release of, offenders of certain categories on probation or  after due admonition with the object of  preventing  the conversion  of youthful Offenders of less than 21 years  age into  obdurate  criminals as a result of  their  association with  hardened criminals of mature age in the jail.   Where, however,  the offence for which a person has been  convicted is  of  a serious nature punishable  with  imprisonment  for life, or is one of those specified in s. 18 of the Act,  the benefit of the Act would not be available. [877G-H; 879A-C] (2)  The appellant, on being convicted for the offence under a.  326 read with s. 149, I.P.C., was liable to be  punished with  imprisonment  for life.  Therefore, he  would  not  be entitled to the benefit of S. 6 of *a Probation of Offenders Act.,  To hold otherwise would be treating the word but  not with  imprisonment  for  life’ in the  section,  as  otiose, contrary to rules of construction. [878E-G] (3)  The ’fact that imprisonment for a lesser term can  also be  awarded  for the offence would not take it  out  of  the category of offences punishable with imprisonment for  life. 1878G-H] Som Nath Puri v. State of Rajasthan, A.I.R. 1972 S.C.  1490, followed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:   Criminal Appeal No.  46,

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of 1969. Appeal under Article 134(1)(c) of the Constitution of  India from the judgment and order dated December 10, 1968, of  the Patna High Court in Criminal Appeal No. 116 of 1966. S.   M. Mishra and S. S. Jauhar, for the appellant. B.   P. Jha, for the respondent. The Judgment of the Court was delivered by Khanna, J. The short question which arises for determination in this appeal on certificate granted by Patna High Court is whether  the appellant who was less than 21 years of age  on the date of his conviction for an offence under section  326 read  with  section 149 Indian Penal Code,  can  claim  the, benefit  of section 6, of the Probation of  Offenders  Act,, 1958 (Act No. 20 of 1958). , 876 The appellant and five others, who belong to village  Mandil in  District  Gaya, were tried in the  court  of  Additional Sessions  Judge Gaya for offences under sections  147,  148, 307, 323 and 307 read with section 149 Indian Penal Code and section  25  of the Arms Act.  Jugal Kishore  appellant  was convicted  under  section  326 read  with  section  149  and section  148 Indian Penal Code and was sentenced to  undergo rigorous  imprisonment  for a period of five  years  on  the first  count and rigorous imprisonment for a, period of  two years  on  the second count.  The sentences awarded  to  the appellant were ordered to run concurrently.  The other  five accused  were also convicted for various offences  and  were sentenced on those counts. On appeal the Patna High Court as per judgment dated January 22,  1968 acquitted two of the accused.  The  conviction  of the  appellant  for  offences under section  326  read  with section  149 and 148 Indian Penal Code was maintained.   The sentence of the appellant for the offence under section  326 read  with  section 149 Indian Penal Code was  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 some of the offences, and they were  awarded sentences  of  imprisonment on that count.  After  the  pro- nouncement of the judgment by the High Court, an application was  made on behalf of the appellant that his case be  deal; with under the Probation of Offenders Act on the ground that he  wag below 21 years of age at the time of his  conviction by  the trial court.  This application was rejected  by  the High  Court  as per ,order dated December 12,  1968  on  the ground  that  the offence for which the appellant  had  been convicted was punishable with imprisonment 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  High Court certified the case to be fit for  appeal  to the  Supreme Court as it involved the question  relating  to the applicability of the Probation of Offenders Act. The   appellant  and  his  companions  were  tried  on   the allegation that on October 14, 1964 at about 10 a.m.,  while Madho Saran was getting his field bearing No. 1678  ploughed by  his  ploughman Rakshya Mahto, the  appellant  and  Raghu accused  went there and questioned Madho Saran  for  cutting the  ridge between field No. 1678 and 1719.  Field No.  1719 belonged  to the appellant.  Madho Saran went to  his  house and narrated the incident to his brother Sadho Saran.  Madho Saran  and  Sadho Saran along with others then came  out  of their house and while they were near a barrage, they met the accused  who  were accompanied by about 30 person  of  their village.   One  of the accused, namely, Hira  Lal,  who  was armed  with a gun, fired a shot as a result of  which  Sadho

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’Saran  was  hit  on  his  head.   Sadho  Saran  fell  down, whereafter 87 7 the  other  accused, including the appellant who  was  armed with  a garasa, caused further injuries to Sadho  Saran  and his  companions  with sharp-edged and  blunt  weapons.   The injured  were  thereafter taken to Jehanabad  Hospital.   On receipt  of  intimation  from the  doctor  incharge  of  the hospital,  a police Sub Inspector went to the  hospital  and recorded the statement of Madho Saran, Nand Kishore, one  of the accused, also lodged a report at the police station. The question with which we are concerned in this appeal,  as mentioned  earlier, is whether the appellant can  claim  the benefit  of the Probation of Offenders Act.   The  appellant gave. his age to be 19 years in his statement under  Section 342 of the Code of Criminal Procedure, and the case has been argued  before us on the assumption that the  appellant  was less  than 21 years of age at the time of his conviction  by the  Additional Sessions Judge.  The main offence for  which the  appellant has been convicted is section 326  read  with section  149 Indian Penal Code.  Section 326 deals with  the offence  of voluntarily causing grievous hurt  by  dangerous weapons  or  means  and the punishment  prescribed  for  the offence is imprisonment for life, or imprisonment of  either description  for a term which may extend to ten years.   The convicted   person  shall  also  be  liable  to  pay   fine. According  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 assembly knew to be  likely  to  be committed  in prosecution of that object, every person  who, at  the time of the committing of that offence, is a  member of  the same assembly, is guilty of that offence.   It  is., therefore,  manifest that the appellant on  being  convicted for  the  offence under section 326 read  with  section  149 Indian Penal 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  Probation of Offenders Act was enacted in 1958  with  a view  to  provide for the release of  offenders  of  certain categories  on  probation or after due  admonition  and  for matters  connected therewith.  The object of the Act  is  to prevent  the conversion of youthful offenders into  obdurate criminals  as  a result of their association  with  hardened criminals  of mature age in case the youthful offenders  are sentenced to undergo imprisonment in jail.  The above object is  in  consonance with the present trend in  the  field  of penology, according to which effort should be made to  bring about correction and reformation of the individual offenders and  not to resort to retributive justice.  Modern  criminal jurisprudence recognises that no one is a born criminal  and that  good  many  crimes are the  product  of  socioeconomic milieu.   Although  net  much  can  be  done  for   hardened criminals, considerable stress has 878 been  laid on bringing about reform of young  offenders  not guilty  of  very serious offences and  of  preventing  their association   with  hardened  criminals.   The   Act   gives statutory  recognition  to  the  above  objective.   It  is, therefore  provided  that youthful offenders should  not  be sent  to  jail, except in  certain  circumstances.   Before, however, the benefit of the Act can be invoked, it has to be shown  that  the convicted person even though less  than  21 years  of age, is not guilty of an offence  punishable  with

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imprisonment  for life.  This is clear from the language  of section 6 of the Act.  Sub-section (1) of that section reads as under               "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 per-son 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." Mr.  Misra on behalf of the appellant has urged that as  the offence under section 326 read with section 149 Indian Penal Code  is punishable not only with imprisonment for life  but also with imprisonment which may extend up to ten years, the benefit  of  section  6 of the Act can  be  invoked  by  the appellant.   This  contention, in our opinion, is  not  well founded.  Plain reading of section 6 makes it manifest  that it deals with persons under twenty-one years of age who  are found guilty of having committed an offence punishable  with imprisonment  but  not  with  imprisonment  for  life.    As imprisonment  for life can also be awarded for  the  offence under section 326 read with section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of section 6. To hold otherwise.  would have  the  effect  of  ignoring  the  words  "but  not  with imprisonment for life" and treating them to be otiose.  Such a  construction is plainly not permissible. We  also  cannot subscribe  to the view that the offences excluded  from  the purview  of  the  section are only  those  offences  wherein punishment prescribed is imprisonment for life and not for a lesser  term, for the language used in the section does  not warrant such a view.  On the contrary, the ,Plain meaning of the  section  is  that the section cannot be  invoked  by  a person  who  is  convicted for an  offence  punishable  with imprisonment  for  life.  The fact that imprisonment  for  a lesser  term can also be awarded for the offence  would  not take  it  out of the category of  offences  punishable  with imprisonment  for  life.   The  policy  underlying  the  Act appears to be that it is only in 879 cases  of  not  very  serious  nature,  viz.,  offences  not punishable  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   punishable   with imprisonment  for life, the benefit of the Act would not  be permissible  in  his  case.   Likewise,  there  are  certain offences  like those under the Prevention of Corruption  Act wherein the convicted person cannot claim the protection  of the  Act.   Section 18 of the Act  expresser  excludes  such offences from the purview of the Act. In  the case of Som Nath Puri v. State of Rajasthan (1)  the appellant  had been convicted for an offence  under  section 409  Indian  Penal Code.  Punishment for the  offence  under section 409 Indian Penal Code is the same as for the offence under  section  326,  namely,  imprisonment  for  life,   or imprisonment  of  either description for a  term  which  may extend  to ten years and the liability to pay fine.  It  was

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held  by  this Court that in such a case the  provisions  of section  4  of  the Probation of  Offenders  Act  cannot  be invoked.   It may be mentioned that section 4 of  the,  Pro- bation  of  Offenders Act also excludes from  its  operation persons  convicted of offences punishable with  imprisonment for life.  In 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 applicable to a case of  a                             person  found  guilty of  having  comm itted  an               offence   not   punishable   with   death   or               imprisonment for life." We,  therefore,  hold that the appellant cannot  invoke  the benefit of section 6 of the Probation of Offenders Act. The appeal fails and is dismissed. Appellant to surrender to the bail bond. Appeal dismissed. (1) A.I.R. 1972 S.C. 1490. 880