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PETITIONER: ABDUL QAYUM

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT15/11/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN PALEKAR, D.G.

CITATION:  1972 AIR  214            1972 SCR  (2) 381  1972 SCC  (1) 103  CITATOR INFO :  R          1972 SC1554  (11)  R          1972 SC2434  (7)

ACT: Probation  of  Offenders  Act  (20  of  1958),  ss.  4   and 6--Application of Act--Courts to keep reformative aspect  in mind.

HEADNOTE: The  appellant,  was  convicted  under  s.  379  I.P.C.  and sentenced  to  6 months R.I.. He committed the  theft  along with another accused.  At the time of the occurrence he  was 16  years  of  age and at the time of  conviction  about  18 years.   The  Probation Officer recommended that he  may  be released  on  probation  under  s. 6  of  the  Probation  of Offenders  Act, 1958, but the trial court declined to do  so on the ground that he was an associate of the other  accused who  was  a hardened criminal.  The order was  confirmed  in revision by the High Court. Allowing the appeal to this Court, HELD  : The sentence should be set aside with the  direction that the appellant be released under s. 4 of the Act on  his entering  into a bond, with his father as surety, to  appear and receive sentence by the trial court whenever called upon to do so within a period of one year, and during that  time, to keep peace and be of good behaviour. [385 C-D] Section 4 empowers the trial court to release an offender on probation and under the Act the power can be exercised by an appellate court. [384 C-D] In  the  present case, the report of the  Probation  Officer does  not justify the conclusion that the appellant  was  an associate  of  the other accused, but on the  contrary,  the report was very favourable to him.  The accused was  neither a hardened criminal nor an associate of hardened  criminals, and to sentence him to imprisonment would defeat the purpose of  the  Act  to reform an offender and  would  achieve  the object  of associating him with hardened criminals. [384  E, H; 385 A-C] Rattan  Lal  v.  State of Punjab.   A.I.R.  1965  S.C.  444, referred to.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal.No. 290 of 1968. Appeal  by special leave from the judgment and  order  dated August 8, 1968 of the Patna High Court in Criminal  Revision No. 1583 of 1967. S. N. Misra, K. K. Sinha, B. B. Sinha, S. S. Jauhar and S. K. Sinha, for the appellant. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by P.  Jaganmohan  Reddy, J. This Appeal is  by  Special  Leave against the Judgment of the Patna High Court exercising  its Revisional   jurisdiction  by  which  the  benefit  of   the provisions of the 382 probation of offenders Act, 1958 (Act No. 20 of 1958) (here- inafter called ’the Act’) was denied to the Appellant Qayum. The  Appellant  was convicted under Sec. 379 of  the  Indian Panel  Code and sentenced to rigorous imprisonment  for  six months.   The prosecution case was that on the  Vijayadashmi day  in 1964, Jagdish Kumar Sinha alongwith his friends  had gone to Mahalla Pathar Ki Masjid to see the procession.   He had in the pocket of his pant a purpose containing Rs.  56/- in currency notes.  At about 1.30 a.m. when he got down from the  Rikshaw  and went to the pan shop to purchase  pan  and cigarette  he discovered when he wanted to pay the price  of the  pan and cigarette that somebody had picked  his  pocket and his purse was gone.  He raised a hue and cry and  seeing that two boys were running, he and his friends chased  them. They succeeded with the help of the members of the public in catching the Appellant who had immediately passed the  money from the purse to his associate Shamim who however  escaped. Both  Shamim  and the Appellant were convicted.  It  appears that  before the Sub Divisional Magistrate a joint  petition of  the  owner  of the purse Jagdish  Kumar  Sinha  and  the Appellant  for permission to compound the offence was  filed under Sec. 345(2) of the Indian Penal Cod,--, but it is said no  order seems to have been passed on it and the  Appellant was  convicted  as aforesaid.  As we have not been  able  to ascertain  the  truth or otherwise of this fact  we  do  not express  any  view thereon.  There is no doubt that  at  the time of the alleged occurrence the Appellant was said to  be only  16 years of age and at the time of his  conviction  he would  be  about 18 years of age.  Before the  sentence  was passed on him it was prayed that under Sec. 6 of the Act  he be  released  on probation and that no  sentence  should  be passed  against  him.  The Trial Court called for  a  Report from the Probation Officer in respect of both the  Appellant and accused Shamim.  The Probation Officer recommended  that the  Appellant  should be given the benefit  under  the  Act which  recommendation  however  was  rejected  for   reasons recorded  by it and he was sentenced to six months  rigorous imprisonment  as aforesaid.  The reasons given by the  Trial Court  for  not giving the benefit to the Appellant  are  as under :-               "In spite of his recommendations I do not feel               inclined   to  extend  the  benefit   of   the               provisions  of the probation of Offenders  Act               to   accused  Qayum.   Apparently  he  is   an               associate of accused Shamim who is a  hardened               criminal  and a person of doubtful  character.               Incidents  of pick-pocketing are very  rampant               in  this subdivision and it was just  a  stray               chance  that accused Qayum was caught in  this

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             case.   Having regard to these facts  and  the               nature  of  offence and the  circumstances  in               which 383               accused Qayum was caught, he does not  deserve               ’the benefit of Section 4 of the Act". The Appeal filed against the conviction and sentence however was  dismissed  and his prayer for giving  him  the  benefit under  the  Act was also rejected.  Thereafter  he  filed  a Revision Petition against his conviction and sentence in the High  Court of Patna where, as appears from the Judgment  of that Court, the only point ,that was urged on behalf of  the Appellant was that on the date when the revision came on for hearing the Appellant was below 20 years and the benefit  of the  provisions  of the Act should have been given  to  him. The  High Court after referring to the reasons given by  the Trial Court said that the Probation Officer had not made any recommendations  for granting benefit under the Act  to  the other accused Shamim, in as much as he was a hardened crimi- nal  and a habitual pick pocket and therefore  rejected  the Revision  Petition  as in its opinion the  Trial  Court  was justified in not granting the benefit under the Act  because of  "the association of the petitioner with such  a  hardned criminal and a pick pocket.... In  our view neither the Trial Court, the  Appellate  Court, nor the High Court applied their mind to the requirement  of the  provision of the Act.  As pointed out by this Court  in Rattan  Lal  v.  The  State of  Punjab(1),  "The  Act  is  a milestone  in  the progress of the modern liberal  trend  of reform  in the field of penology.  It is the result  of  the recognition of the doctrine that the object of criminal  law is  more  to reform the individual offender than  to  punish him".  The provisions of the Act must therefore be viewed in the  light  of this laudable reformatory  object  which  the legislature   was  seeking  to  achieve  by  enacting:   the legislation.   The  Act differentiated  offenders  below  21 years  of age who are guilty of having committed an  offence punishable with death or imprisonment for life and those who are  guilty of a lesser offence.  It is only in the case  of offenders  who are below the age of 21 years and  guilty  of lesser  offences than those punishable with death  and  life imprisonment  that an injunction is issued to the Court  not to sentence them 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 offenders, it is not desirable to deal with them under Sec. 3 and Sec.  4. It  is also provided in sub-sec. 2 of Sec. 6 that the  Court shall  for  the  purposes of satisfying  itself  whether  it should give the offender the benefit referred to in sub-sec. (1), call for and consider a report from a Probation Officer along with any other information available to it relating to the   character,  physical  and  mental  condition  of   the offender. It may be noted that Sec. 3 empowers the Court to release an offender after admonition where he has been found guilty  of hav- (1)  A.T.R. 1965 (Vol. 52) S.C. 444. 384 ing committed an offence under Sections 379, 380, 381,  404, 420 or any offence punishable with imprisonment of not  more than  ,two  years or fine or both either  under  the  Indian Penal  Code  or  under any other law and that  there  is  no previous  conviction  proved  against  him;  while  Sec.   4 empowers  it  to release an offender on  probation  of  good character  where it considers it expedient to do so  instead

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of  sentencing  him at once to any  punishable.   In  Rattan Lal’s case(1) a question had arisen as to whether Section  1 1  (2)  of  the Act circumscribes  the  jurisdiction  of  an Appellate.   Court to make an order under the Act only in  a case  where the Trial Court could have made that order,  and consequently in an appeal against an order of the High Court passed  in  exercise of its  revisional  jurisdiction,  this Court  could  pass  such an order.  It  was  held  that  the phraseology  used  therein was wide enough  to  enable,  the Appellate Court or the High Court to make such an order  and that it was purposely made comprehensive as the Act was made to implement a social reform, as such either it could do  so itself  or direct the High Court to do so.  In  either  case the  provisions  of Sec. 6 of the Act have  to  be  complied with. In this case it is true that the Trial Court, the  Appellate Court as well as the High Court did consider the question of giving the benefit to the Appellant under Sec. 6 but in  our view  they  have completely misdirected  themselves  to  the essential  requirements  of that provision.   The  Probation Officer’s  report nowhere indicates that the accused is  ’an associate  of  accused  Shamim’.   The  High  Court  thought apparently he is an associate of Shamim.  Even if Shamim was a  hardened  criminal  as  it  appears  from  the  Probation Officer’s  report  dealing with that accused  there  was  no war-rant for infering that the Appellant was his  associate. A  referrence to the report of ’the Probation Officer  dated 7-8-65  would  show that the accused  was  approximately  18 years of age and was physically and mentally normal.  Though he  was  illiterate  lie  had  a  vocational  aptitude,  for tailoring and was working in the Bihar Tailoring Works.   He was  interested  towards his work- as a tailor  and  behaves properly  with  his  father  and  brothers  and  has  normal association with friends.  Unfortunately he lost his  mother when  he was 10 years old and his family  history  disclosed according to the report that he comes from a poor family and though  he has no landed property he has a house of his  own to  live  ill.  Both his father and his  elder  brother  are employed.   The attitude of the family towards the  offender appellant  was one of sympathy and affection and the  father exercised  reasonable control over him.  The report  of  the neighbours is also in his favour.  In the end the  Probation Officer  expressed the view that there is no report  against the character of the offender, no previous conviction has (1)  A.I.R. 1965 (Vol. 52) S.C. 444. 385 been  proved  against  him prior to this  case  and  in  the circumstances mentioned by him the release on probation  may be  a  suitable  method to deal  with  him.   He,  therefore recommended that he be released on probation by getting  his father  to execute a suitable security.  This report in  our view  does not justify the conclusion that the appellant  is either  a hardened criminal or is associated  with  hardened criminals  for denying him the benefit of the provisions  of the  Act.   To  sentence him to  imprisonment  would  itself achieve   the  object  of  associating  him  with   hardened criminals  which association the Courts thought was  a  good ground  for  denying him the benefit of  being  released  on probation.   We  have  no doubt that if he  is  released  on probation  of  good  conduct  there is  hope  of  his  being reclaimed and afforded the opportunity to live a normal life of  a  law  abiding citizen.  In this  view  the  Appeal  is allowed  and  the sentence is set aside with  the  direction that he be released under Sec. 4 of the Act on his  entering into  a bond, with his father as a surety in the sum of  Rs.

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500/-  to  appear and receive sentence by  the  Trial  Court whenever  called upon to do so within a period of  one  year and  during  that  time, to keep the peace and  be  of  good behaviour.  The Trial Court is directed to take a bond  from the Appellant and a surety bond from the Appellant’s  father as  aforesaid.  His bail bond will enure till then and  will be  deemed to be cancelled after the directions are  carried out. V.P.S. 386