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PETITIONER: MOHAMAD AZlZ MOHAMED NASIR

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT04/09/1975

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  730            1976 SCR  (3) 663  1976 SCC  (1) 657

ACT:      Probation of offenders Act, 1958-S. 6-Scope of.

HEADNOTE:      On the question whether the provisions of the Probation of offenders Act 1958 should have been applied in this case,      Allowing the appeal, ^      HELD:  (1)  Even  though  the  point  relating  to  the applicability of  s.6 was  not raised  before the Presidency Magistrate or  the High  Court, this  Court is bound to take notice of  the provisions  of  that  section  and  give  its benefit to the appellant, particularly since it is a section which is  intended for  the benefit  of juvenile delinquents reflecting the  anxiety of  the Legislature  to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them is responsible and useful members of society. [665 B-C]      (2) Section  6 lays  down an injunction not to impose a sentence of  imprisonment on  a reason who is under 21 years of’ age  and is  found guilty of having committed an offence punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under s.  3 or  s. 4.  ’This inhibition  on the power of the court to  impose a sentence of imprisonment applies not only at the  state of trial but also at the stage of "High, Court or any  other court  when the case comes before it in appeal or revision" s. 11 (i) [664-H]      In the instant case the appellant was below 21 years of age. The  appellant was  at one time a well known child film actor  and   won  several   awards  for   acting  in  films. Subsequently he  fell in  bad company and took to evil ways. The offence  of theft  of two Sarees, though it could not be lightly ignored.  was of  minor. character  and this was the first offence  of the  appellant. It  Count be  said that it would not be desirable to deal with the appellant under s. 3 or s. 4 of the Act. [665 G-H]

JUDGMENT:

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    CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 129 of 1971 .      Appeal by  Special Leave  from the  Judgment and  order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969.      R B. Datar and Rajen Yash Paul, for the Appellant.      M. N Shroff, for the Respondent.      The Judgment of the Court was delivered by-      BHAGWATI, J.  The appellant  and one  Mohd. Yusuf Gulam Mohd. were  charged for  an offence under s. 379 read with s 34 of  the Indian  Penal Code  for snatching two sarees from one Govind  whilst he was carrying them from the show of his master to  that of a washer and dyer. The learned Presidency Magistrate, who  tried the  case, accepted  the  prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd. guilty of the offence under s. 379 read with s. 34 and 664 Sentenced each  of their to suffer rigorous imprisonment for six months.   It  does not  appear from  the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited  to the  provisions of  s. 6 of the Probation of offenders Act,  1958.  The  appellant  preferred  an  appeal against the  order of  conviction and  sentence to  the High Court of  p Bombay but the appeal was unsuccessful. The High Court took  the same  view of  the evidence  as the  learned Presidency Magistrate  and confirmed  the conviction  of the appellant under  s. 379  read with  s. 34.  So  far  as  the question of sentence was concerned, a submission was made on behalf of  the appellant  that since  he was  a young boy of about seventeen  years and  three months  and this  was  his first offence,  leniency should  be shown  tow him.  But the High Court  r observed  that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since  the date of the offence to deserve the mercy of the  Court and  it did  not, therefore, see any reason to interfere with  the sentence  of imprisonment passed against the appellant.  It appears that once again the provisions of s. 6  of the  Probation of  offenders  Act,  1958  were  not specifically brought to the notice of the High Court and the sentence of  imprisonment was  maintained by  the High Court without applying  its mind  to those  provisions. Hence  the appellant preferred  a petition  for special  leave to  this Court and on that petition, this Court granted special leave limited to  the question  "whether  the  provisions  of  the Probation of  offenders Act  should have been applied in the case".      We are  concerned in  this appeal  with  s.  6  of  the Probation of  offenders Act, 1958, for it is only under that section  that  the  appellant  claims  the  benefit  of  the provisions contained  in the Act. Subsection (1) of s. 6, on a plain  grammatical reading  of its language, provides that when any  person under  twenty-one years 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  impose any  sentence of 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 665 him under  s. 3 or s. 4. This inhibition on the power of the Court to  impose a sentence of imprisonment applies not only

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at the  state of  trial court  but also  at the  stage "High court or  any other  Court when  the case comes before it on appeal or  in revision.’. Vide s. 11, sub-s. (1) of the Act. It  is,  therefore,  obvious  that  even  though  the  point relating to  the applicability of s. 6 was not raised before the learned  Presidency Magistrate  or the  High Court, this Court is  bound to  take notice  of the  provisions of  that section and  give its benefit to the appellant, particularly since it  is a  section which is intended for the benefit of juvenile  delinquents,   reflecting  the   anxiety  of   the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime  and  rehabilitate  them  as  responsible  and  useful members of society.      Here, we  find that  whatever  date  be  taken  as  the relevant date  for determining  the applicability  of s.  6- whether the  date of the offence or the date of the judgment of the  learned Presidency  Magistrate or  the date  of  the judgment of  the High  Court-the appellant  was below twenty one years age. The offence of which he is found guilty is an offence under  s. 379  read with  s. 34 and it is clearly an offence  punishable   with   imprisonment   but   not   with imprisonment for  life. The   conditions  requisite for  the applicability of  s. 6 are, therefore, plainly satisfied and under s.  6, Sub-s.  (1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the  Court   is  satisfied   that,  having   regard  to  the circumstances of  the case,  including  the  nature  of  the offence and  the character of the appellant, it would not be desirable to  deal with  him under  s. 3 or s. 4. It is true that sub-s.  (2) of  s. 6  requires that  for the purpose of satisfying itself  whether it would not be desirable to deal with the appellant under s. 3 or s. 4, the Court is required to call for a report from the Probation officer and consider the report,  if any, but we do not think it necessary in the present case  to call  for any  report  from  the  Probation officer nor  to remand  the case  to the  learned Presidency Magistrate for  passing an  appropriate order  after calling for a  report from the Probation officer and considering it. We  have   on  record  the  antecedent  history  giving  the background of the appellant. The appellant was at one time a well known  child film  actor and  he actually  won  several awards  for  acting  in  films.  It  appears  that  at  some subsequent stage  he fell  in bad  company and  took to evil ways The  offence which  he is  convicted is,  no doubt,  an offence as  theft which cannot be lightly ignored, but it is comparatively of  a minor characters in that only two sarees were snatched  away from  the hands of Govind, perhaps under the stress  of economic necessity. Moreover, this is a false offence of  the appellant.  We are,  therefore, not  at  all satisfied 12-L925SupCI/75 666 that it  would not  be desirable  to deal with the appellant under s.  3 or   s.  4 and  consequently,  the  sentence  of imprisonment passed on the appellant must be set aside.      We accordingly  set aside  the sentence of imprisonment passed on  the appellant  and direct  that he be released on his entering  into a  bond wit  one surety in the sum of Rs. 500/ to  appear in the Court of the Presidency Magistrate to receive sentence,  whenever called  upon to  do so  within a period of  six months  and during  that period  to keep  the peace and  be of  good  behaviour.  The  learned  Presidency Magistrate is  directed to  take the necessary bond from the appellant and the necessary surety bond from a surety to his

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satisfaction. The  appellant will continue on bail till such time as  these directions  are carried  out, after which the bail bond will stand canceled. P.B.R.                                       Appeal allowed. 667