10 April 1964
Supreme Court
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RATTAN LAL Vs STATE OF PUNJAB

Case number: Appeal (crl.) 190 of 1962


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PETITIONER: RATTAN LAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 10/04/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1965 AIR  444            1964 SCR  (7) 676  CITATOR INFO :  R          1972 SC 214  (3)  RF         1972 SC1295  (4)  R          1972 SC1554  (8)  R          1972 SC2434  (6)  RF         1973 SC 780  (6)  F          1973 SC 906  (1)  R          1974 SC1818  (14)  R          1979 SC1271  (10)  R          1983 SC 150  (24)

ACT: Probation  of  Offenders Act, 1958,  ss.  611-Criminal  Law- Conviction of accused by trial court before the coming  into force of the Act-Whether High Court can exercise powers con- ferred on Court under s. 6.

HEADNOTE: The  appellant,  a resident of Palwal in  Gurgaon  District, committed house trespass and tried to outrage the modesty of a girl aged 7 years.  By an order dated May 31, 1962, he was convicted   by   magistrate  and   sentenced   to   rigorous imprisonment.  He was also ordered to pay fine.  At the time of his conviction, he was 16 years old. The Probation of Offenders Act, 1958 was extended to Gurgaon on September 1, 1962 and hence at the time of his conviction the magistrate had no power or duty to make any order  under the  Act.  The appeal of the appellant was dismissed by  the Additional  Sessions Judge, Gurgaon by his order dated  Sep- tember  22, 1962.  His revision petition was also  dismissed by  the  High Court on September 27, 1962.   No  ground  was taken  either before the Additional Sessions Judge  or  High Court that the provisions of the Probation of Offenders Act, 1958 should be applied in the case.  After the dismissal  of the   revision   petition,  appellant   filed   a   criminal miscellaneous petition requesting the High Court to exercise its powers under s. 11 of the Act and pass orders under  ss. 3, 4 or 6 of the Act.  The application was also dismissed by High  Court.   The appellant filed a petition  in  the  High Court for the grant of a certificate of fitness to appeal to this Court and one of the grounds taken was that High  Court should  have acted under s. 11 of the Act and passed  orders

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under ss. 3, 4 or 6 of the Act.  The certificate having been refused  by High Court, the appellant came to this Court  by special leave.  Accepting the appeal, Held  (Per Subba Rao and Das Gupta, JJ.): The order  of  the High  Court be set aside and High Court be directed to  make an order under s. 6 or if it so desires, remand the case  to the   Sessions  Court  for  doing  so.   It  is  true   that ordinarily,  this  court is reluctant to allow  a  party  to raise  a  point for the first time before it,  but  in  this case, both the Additional Sessions Judge and the High  Court ignored  the  mandatory provisions of the Act.  It  is  true that  the appellant did not bring the provisions of the  Act to  the notice of the Court till after the disposal  of  the revision petition, but that does not absolve the court  from discharging its duty under the Act. The appellate court in appeal or the High Court on  revision can, in exercise of the powers conferred under s. 11 of  the Act, make an order under s. 6(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 Act distinguishes offenders  below  21 years of age and those 677 above that age and offenders who are guilty of committing 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, 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 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 ss. 3 and 4 of the Act. An  order  under s. 1 1 (1) of the Act can be  made  by  any court  empowered  to  try  and  sentence  the  offender   to imprisonment and also by High Court or any other court  when case  comes  before it on appeal or in revision.   The  sub- section  ex facie does not circumscribe 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.   The phraseology  used  therein  is wide  enough  to  enable  the appellate  court or High Court, when the case  come  before, it,   to  make  such  an  order.   It  was  purposely   made comprehensive  as  the Act was made to  implement  a  social reform.   As  the  Act does not change the  quantum  of  the sentence,  but  only introduces a provision  to  reform  the offender, there is no reason why the legislature should have prohibited the exercise of such a power even if the case was pending  against  the accused at one stage or other  in  the hierarchy of tribunals. The  term "court" in s. 6(1) includes an appellate court  as well as revisional court. Per  Raghubar Dayal, J. (dissenting)-When a person has  been found  guilty for the first time of an offence to which  the provisions of ss. 3 and 4 of the Probation of Offenders Act, 1958 could apply, and such finding, be it of the trial court or  of  the  appellate  court,  is  arrived  at  before  the application  of  the Act, the court of  appeal  or  revision cannot  take action under s. 11(1) of the Act when the  case comes before it in appeal or revision. It  is  true that appellate courts have allowed  parties  to

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take  advantage of a law enacted during the pendency of  the case, but this is done when parties can litigate further  in view of the changed law and is done to save multiplicity  of proceedings.  Such a ground is not available in the  present case. Ramji  Missar v. State of Bihar, [1963] Supp. 2 S.C.R.  745, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 190  of 1962.   Appeal by special leave from the judgment and  order dated  September  27,  1962  of the  Punjab  High  Court  in Criminal Revision No. 1172 of 1962. Nanak Chand, for the appellant. Gopal  Singh,  R.N.  Sachthey  and  R.H.  Dhebar,  for   the respondent. April 10, 1964.  The Judgment of Subba Rao and Das Gupta JJ. was delivered by Subba Rao J. Raghubar Dayal, J.  delivered a dissenting Opinion. 678 SUBBA  RAO,  J.-This  appeal by  special  leave  raises  the question  of jurisdiction of an appellate court to  exercise its power under s.6 of the Probation of Offenders Act,  1958 (Act,  No.  20  of 1958), hereinafter  called  the  Act,  in respect  of an accused who was convicted by the trial  court before the Act The facts are not now in dispute.  The appellant, a resident of Palwal in Gurgaon District, committed house trespass  and tried to outrage the modesty of a girl aged 7 years. He  was sent  up  for  trial before  the  Magistrate,  First  Class, Palwal.  The said Magistrate, on May 31, 1962, convicted him under ss. 451 and 354 of the Indian Penal Code and sentenced him  to six months’ rigorous imprisonment under  each  count and directed that the sentences should run concurrently.  He further  imposed a fine of Rs. 200/- on the appellant  under s. 451 of the Indian Penal Code and ordered that, in default of payment of fine, he should undergo rigorous  imprisonment for two months.  The appellant was 16 years old at the  time of his conviction.  The Act was extended to Gurgaon District on  September  1,  1962  and, therefore,  at  the  time  the appellant  was convicted by the Magistrate,  the  Magistrate had  no power or duty to make any order under the Act.   The appellant  preferred  an appeal against his  conviction  and sentences to the Additional Sessions Judge, Gurgaon, who  by his judgment dated September 22, 1962, dismissed the appeal. Though by the time the Additional Sessions Judge disposed of the  appeal  the said Act had come into force,  neither  the appellant relied upon the provisions of the Act nor did  the learned Additional Sessions Judge exercised his power there- under.   The  revision  filed  in  the  High  Court  by  the Appellant was dismissed on September 27, 1962.  The revision petition was dismissed in limine, but no ground was taken in the  revision  petition that the Additional  Sessions  Judge should have acted under s.6 of the Act.  After the  revision petition  was  disposed of, it appears  that  the  appellant filed  Criminal  Miscellaneous  Petition  No.  793  of  1962 requesting the High Court to exercise its jurisdiction under s.  1  of  the Act and to pass orders under ss. 3,  4  or  6 thereof.    The   said  application  was   also   dismissed. Unfortunately the said application is not on the record  and we  are  not in a position to know the exact  scope  of  the relief  asked  for in the application and  the  reasons  for which  it was dismissed.  The appellant filed a petition  in

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the High Court under Art. 134(1) (c) of the Constitution for a  certificate of fitness to appeal to this Court.   One  of the grounds for seeking such a certificate was that the High Court  should have acted under s. 11 of the Act  and  passed orders  under ss. 3, 4 or 6 thereof.  That  petition  having been  dismissed,  the appellant has  preferred  the  present appeal to this Court by obtaining special leave. 679 Learned  counsel  for the appellant  contends  that,  having regard  to  the admitted facts in the case, the  High  Court should  have acted under s. 11 of the Act and  released  the appellant  on probation of good conduct instead  of  sending him  to prison.  On the other hand, learned counsel for  the State argues that the Act is not retrospective in  operation and,  therefore, it will not apply to the appellant,  as  he was convicted before it came into force in Gurgaon District. Further  he contends that neither s. II of the Act nor-  s.6 thereof,  on  the  basis of  the  express  phraseology  used therein, can be invoked in the circumstances of the  present case.   In any view, he says that the appellant, not  having raised  this plea till after the revision petition was  dis- posed  of by the High Court, is precluded by his default  to raise this contention at this very late stage. 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.   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  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 ss, 3 and 4 of the Act. With  this short background we shall now read  the  relevant provisions of the Act.               Section 6.(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 tinder 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.               680               (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 (1) the Court shall               call  for a report from the probation  officer               and consider the report, if any, and any other

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             information  available to it relating  to  the               character and physical and mental condition of               the offender.               Section   11.  (1)  Notwithstanding   anything               contained  in  the Code or any other  law,  an               order under this Act may be made by any  Court               empowered to try and sentence the offender  to               imprisonment and also by the High Court or               any other Court when the case comes before  it               on appeal or in revision.               (2)   Notwithstanding  anything  contained  in               the  Code, where an order under section  3  or               section  4  is made by any  Court  trying  the               offender (other than a High Court), an  appeal               shall  lie  to  the  Court  to  which  appeals               ordinarily  lie  from  the  sentences  of  the               former Court.               (3)   In  any  case  where  any  person  under               twenty-one  years  of age is found  guilty  of               having  committed an offence and the Court  by               which he is found guilty declines to deal with               him  under section 3 or section 4, and  passed               against him any sentence of imprisonment  with               or  without fine from which no appeal lies  or               is preferred, then, notwithstanding- any thing               contained  in the Code or any other  law,  the               Court to which appeals ordinarily lie from the               sentences  of the former Court may, either  of               its own motion or on an application made to it               by  the  convicted  person  or  the  probation               officer,  call for and examine the  record  of               the  case  and pass such order thereon  as  it               thinks fit.               (4) The  first question is whether the High Court, acting  under s.  II  of the Act, can exercise the power  conferred  on  a court   under  s.6  of  the  Act.   It  is  said  that   the jurisdiction of the High Court under s. 11(3) of the Act  is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the  trial court could not have made any order under s.6  of the  Act, as at the time it made the order the Act  had  not been extended to Gurgaon District.  On this assumption,  the argument proceeds, the Act should not be given retrospective operation,  as,  if so given, it would affect  the  criminal liability of a person for an act committed by him before the Act  came into operation.  In support of this  contention  a number of decisions bearing on the question of retroactivity of a 681 statute  in  the context of vested rights have  been  cited. Every  law  that  takes away or impairs a  vested  right  is retrospective.  Every  ex  post  facto  law  is  necessarily retrospective.   Under Art.  St 20 of the  Constitution,  no person  shall  be  convicted  of  any  offence  except   for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under  the law  in force at the time of the commission of the  offence. But an ex post facto law which only mollifies the rigour  of a  criminal law does not fall within the  said  prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid.  The  question whether  such  a, law is retrospective and if  so,  to  what

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extent  depends,  upon the interpretation  of  a  particular statute,  having  regard  to  the  well  settled  rules   of construction.  "Maxwell On Interpretation of Statutes", 11th edition,  at  pp. 274-275, summarizes the relevant  rule  of construction thus: -               "The  tendency  of modern decision,  upon  the               whole, is to narrow materially the  difference               between   what  is  called  a  strict  and   a               beneficial construction.  All statutes are now               construed with a more attentive regard to  the               language,  and criminal statutes with  a  more               rational  regard to the aim and  intention  of               the   legislature,  than  formerly.    It   is               unquestionably  right  that  the   distinction               should  not  be  altogether  erased  from  the               judicial  mind,  for  it is  required  by  the               spirit  of  our  free  institutions  that  the               interpretation  of  all  statutes  should   be               favourable  to  personal  liberty,  and   this               tendency   is  still  evinced  in  a   certain               reluctance to supply the defects of  language,               or  to  eke  out the  meaning  of  an  obscure               passage  by strained or  doubtful  influences.               The effect of the rule of strict  construction               might almost be summed up in the remark  that,               were  an equivocal word or ambiguous  sentence               leaves a reasonable doubt of its meaning which               the  canons of interpretation fail  to  solve,               the  benefit of the doubt should be  given  to               the subject and against the legislature  which               has  failed to explain itself.  But it  yields               to the paramount rule that every statute is to               be  expounded  according to its  expressed  or               manifest  intention and that all cases  within               the  mischiefs aimed at are, if  the  language               permits,  to  be  held  to  fall  within   its               remedial influence." Let  us now proceed to consider the question raised  in  the present  case.  This is not a case where an act,  which  was not an offence before the Act, is made an offence under  the Act; nor 682 is this a case where under the Act a punishment higher than that  obtaining  for an offence before the Act  is  imposed. This  is  an instance where neither the ingredients  of  the offence nor the limits of the sentence are disturbed, but  a provision  is  made to help the reformation  of  an  accused through  the  agency  of the court.   Even  so  the  statute affects  an offence committed before it was extended to  the area  in question.  It is, therefore, a post facto  law  and has  retrospective operation.  In considering the  scope  of such  a  provision  we must adopt  the  rule  of  beneficial construction  as enunciated by the modern trend of  judicial opinion  without  doing violence to the  provisions  of  the relevant section.  Section 11(3) of the Act, on the basis of which the learned counsel for the State advances most of his arguments, has no relevance to the present appeal: the  said subsection applies only to a case where no appeal lies or is preferred  against  the order of a court declining  to  deal with  an  accused under s.3 or s.4 of the Act,  and  in  the instant case an appeal lay to the Sessions Judge and  indeed an  appeal was preferred from the order of  the  Magistrate. The  provision that directly applies to the present case  is s.  1 1 (1) of the Act, where under an order under  the  Act may  be  made any Court empowered to try  and  sentence  the

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offender  to imprisonment and also by the High Court or  any other  court when the case comes before it on appeal  or  in revision.   The sub-section ex facie does  not  circumscribe 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.  The phraseology used therein is  wide enough to enable the appellate court or the High Court, when the  case  comes before it, to make such an order.   It  was purposely  made  comprehensive, as the Act was made  to  im- plement  a  social reform.  As the Act does not  change  the quantum of the sentence, but only introduces a provision  to reform the offender, there is no reason why the  Legislature should have prohibited the exercise of such a power, even if the  case  was pending against the accused at one  stage  or other  in the hierarchy of tribunals.  If the provisions  of s.  6(1)  of the Act were read along with s.  11,  we  would reach  the  same  result.   When s.  11  (1)  says  that  an appellate  court  or a revisional court can  make  an  order under the Act, it means that it can make an order also under s.6(1) of the Act.  If so, "court" in s.6(1) will include an appellate  court  as  well as a  revisional  court.   If  an appellate court or a revisional court finds a person guilty, under that section it shall not sentence him to imprisonment unless  the  conditions  laid  down  in  that  section   are satisfied.  Can it be said that the expression "the court by which  the  person  is found guilty" does  not  include  the appellate or revisional court?  When an appellate court or a revisional court confirms a conviction made by a trial court or  sets  aside  an acquittal made by it  and  convicts  the accused, in either case it 683 finds  the accused guilty, for without finding  the  accused guilty it cannot either confirm the conviction or set  aside the  order of acquittal and convict him.  If the  contention advanced by learned counsel for the State, namely, that  the Act  will apply only to convictions made by the trial  court after the Act came into force, be accepted, it would lead to several anomalies; it would mean that the Act would apply to a  conviction made by a trial court after the Act came  into force, but would not apply to an accused, though his  appeal was pending after the Act came into force; it would apply to the accused if the appellate court set aside the  conviction and  sent  back  the  case to  the  trial  court  for  fresh disposal,  but  would  not, if the  appellate  court  itself convicted  him.  On the other hand if the expression  "found guilty" was given the natural meaning, it would take in  the finding  of guilty made by any court in a  pending  criminal proceeding in the hierarchy of tribunals after the Act  came into  force.   This view gets support from the  judgment  of this Court in Ramji Missar v. State of Bihar(1).  The  facts of  that case relevant to the present case were as  follows: The  Assistant Sessions Judge, Arrah, convicted  one  Basist under  s. 307 and s. 326 of the Indian Penal Code.   As  the offences  under  the  said  sections  were  punishable  with imprisonment  for life, the provisions of the  Probation  of Offenders  Act,  1958, were not applicable  to  Basist  and, therefore,  the  Assistant Sessions Judge sentenced  him  to undergo  rigorous imprisonment for 6 years under s.  307  of the Indian Penal Code and for 4 years rigorous  imprisonment under  s. 326 of the said Code and ordered the sentences  to run concurrently.  But the High Court on appeal found Basist guilty  of an offence under s.324 of the Indian Penal  Code. It was contended that the High Court could not make an order under s.6(1) of the Probation of Offenders Act, 1958, on the ground that s. 11 of the Act did not confer such a power  on

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the  High  Court.  Dealing with this  argument,  this  Court observed:-               "It  is however possible that the words in  s.               11(1) "pass an order under the Act" are not to               be construed so strictly and literally, but to               be understood to mean "to exercise the  powers               or  jurisdiction conferred by the  Act."  This               wide interpretation might perhaps be justified               by  the  scope  and object  of  this  section.               Section   11  is  to  apply   "notwithstanding               anything in the Code or any other law" to  all               courts  empowered  to  sentence  offenders  to               imprisonment.  To read a beneficial  provision               of this universal type in a restricted  sense,               so as to confine the power of these courts  to               the exercise of the               [1963] Supp. 2 S.C.R. 745, 755.               684               powers  under ss. 3 and 4 alone would not,  in               our   opinion,   be  in  accord   with   sound               principles  of statutory  interpretation.   We               are therefore inclined to hold that the Courts               mentioned  in  s. II be they trial  courts  or               exercising     appellate     or     revisional               jurisdiction are thereby empowered to exercise               the jurisdiction conferred on Courts not  only               under  ss.  3  and  4  and  the  consequential               provisions but also under s.6." When  it was contended that the word "may" in s. 11  of  the Act  empowers  the  appellate court or  the  High  Court  to exercise  the power at its option and the words  "any  order under the Act" empower it to make an order without reference to  the standards laid down in the Act, this Court  rejected both the contentions.  It held that the expression "may" has compulsory  force  and that the power conferred on  the  ap- pellate court was of the same nature and characteristic  and subject  to  the  same criteria  and  limitations  as  those ,conferred  on  courts under ss. 3 and 4 of the  Act.   This decision lays down three propositions, namely, (i) an appel- late  court  or a revisional court can make an  order  under s.6(1)  of  the Act in exercise of its power  under  s.11(1) thereof;  (ii) it can make such an order for the first  time even  though  the trial court could not have  made  such  an order,  having regard to the finding given by it; and  (iii) in making such an order it is subject to the conditions laid down in ss. 3, 4 and 6 of the Act.  The only  distinguishing feature  between the present case and the said  decision  is that  in the present case the trial court did not  make  the order  as  the Act was not extended to the area  within  its jurisdiction  and in the said decision the trial  court  did not make the order as it could not, on its finding that  the accused  was guilty of an offence Dunishable with  imprison- ment  for  life.  But what is important is that  this  Court held that the High Court for the first time could make  such an  order  under  s.  11 of the Act, as  such  a  power  was expressly  conferred  on  it  by s.  11  of  the  Act.   We, therefore,  hold that the appellate court in appeal  or  the High  Court  in  revision  can, in  exercise  of  the  power conferred  under  s. 11 of the Act, make an order  under  s. 6(1)  thereof,  as the appellate court and the  High  Court, agreeing  with the Magistrate, found the accused  guilty  of the offences for which he was charged. The  next  question is whether this Court can  exercise  the same  power  under  s.  11(1) of the  Act.   This  Court  in disposing  of an appeal against an order of the  High  Court

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would  be deciding what the High Court should have  held  in the  revision before it.  This Court’s power would  also  be confined  to the scope of the power exercisable by the  High Court.   This  Court, therefore, can either  make  an  order under s.6(1) of the Act or 685 ,direct  the  High Court to do so.  But whether  this  Court directly  makes  an order under s.6(1) or directs  the  High Court  to do :so, it is bound to comply with the  provisions of  s.6  of the Act.  A court cannot impose  a  sentence  of imprisonment on a person under 21 years of age found  guilty of having committed ,an offence punishable with imprisonment (but not with imprisonment for life) 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 s.3 or s.4 of the Act.  For The purpose of satisfying itself in  regard to the said action, under sub-s. (2) of s.  6  of the Act 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.  After  con- sidering  the said material the court shall  satisfy  itself whether it is desirable to deal with the offender under s. 3 or  s.  4  of  the Act.  If it is  not  satisfied  that  the offender  should be dealt with under either of the said  two sections,  it can pass the sentence of imprisonment  on  the offender  after recording the reasons for doing so.   It  is suggested that the expression "if any" in sub-s. (2) of  s.6 indicates that it is open to the court to call for a  report or not; but the word "shall" makes it a mandatory  condition and the expression "if any" can in the context only cover  a case  where notwithstanding such requisition  the  Probation Officer for one reason or other, has not submitted a report. Briefly  stated the calling for a report from the  Probation Officer  is  a condition precedent for the exercise  of  the power  under s.6(1) of the Act by the Court.  We think  that in  the  circumstances  of the case the best  course  is  to remand  the matter to the High Court to make an order  after complying with s. 6(1) of the Act. lastly  it is contended that we should not at this very late stage  of  the  proceeding, and especially in  view  of  the observations of the Additional Sessions Judge in  sentencing the  accused,  interfere with the order of the  High  Court. Ordinarily  -this Court would be reluctant to allow a  party to raise a point for the first time before it.  But in  this case  both the Additional Sessions Judge and the High  Court ignored  the  mandatory provisions of the Act.  It  is  true that the accused did not bring the provisions of the Act  to the notice of the court till after the revision was disposed of.   But that does not absolve the court  from  discharging its  duty  under  the Act.  The  observations  made  by  the Additional  Sessions  Judge in sentencing the  accused  were made  de  hors  the  provisions of  the  Act.   From.  these observations  it cannot be held that the learned  Additional Sessions Judge had satisfied himself of the conditions  laid down in s.6(1) of the Act.  That apart, as we have pointed out,  he  could not have legally satisfied  himself  of  the matters  mentioned  in s.6(1) of the Act  without  complying with  the  conditions laid down therein.  We  are  satisfied that, as the Act was recently extended to Gurgaon  District, its  existence had escaped the attention of  the  Additional Sessions Judge as well. as of the High Court and, therefore, it is a fit case for our interference under Art. 136 of  the Constitution.  We set aside the order of the High Court  and

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direct  it to make an order under s.6 of the Act, or, if  it so desires, to remand it to the Sessions Court for doing so. We  should  also  make it clear that we  do  not  intend  to question  the  correctness of the finding of the  courts  in regard  to  the guilt of the accused;  indeed,  the  learned counsel for the appellant did not question the said finding. that when a person has been found guilty for the first  time of an offence to which the provisions of ss. 3 and 4 of  the Probation  of  Offenders  Act, 1958 (Act No.  XX  of  1958), hereinafter  called the Act, could apply, and such  finding, be  it  of  the trial Court or of the  appellate  Court,  is arrived  at before the application of the Act, the Court  of appeal or revision cannot take action under s. 11 (1) of the Act when the case comes, before it in appeal or revision. In  this case, the trial Court had convicted  the  appellant prior  to the application of the Act in that area and  could not  take into consideration the provisions of that  Act  in the passing of the sentences on convicting the appellant. The  appellant was convicted by the trial Court on  May  31, 1962,  prior  to the application of the Act to  that  area,. The  Act was applied on September 1, 1962, by  a  Government Notification, when the appellant’s appeal was pending in the Court  of the Sessions Judge.  The appeal was  dismissed  on September  22,  1962.   The  appellant  did  not  draw   the attention  of the Court to the provisions of the  Act.   The Court did not consider them. The  appellant  went  in revision to the  High  Court.   The revision  was  dismissed on September 27,  1962.   The  High Court also did not refer to the provisions of the Act. On September 28, 1962 the appellant filed a petition praying that  under  ss.  3, 4 and 6 of the Act  the  petitioner  be released  or  that he be dealt with under s. 562(2)  of  the Code  of Criminal Procedure, hereinafter, called  the  Code. That  application was rejected.  Neither this  petition  nor the  order of’ rejection was mentioned in the  petition  for special leave to appeal.  Reference to these is found in the petition filed in the High Court for leave to appeal to this Court under Art. 134(1)(c) of the Constitution dated October 3, 1962, printed at 687 p.   25  of the appeal record and in the grounds  of  appeal accompanying  it.  The petition for special leave  filed  in this  Court  sought leave to appeal against  the  order  and judgement dated September 27, 1962 in the main revision case and  not against the order rejecting the petition,  Criminal Miscellaneous,  No.  793  of 1962.  It  was  not  a  correct statement  in paragraph 9 of the special leave petition,  to the  effect that the petitioner filed an  application  under Art. 134(1)(c) of the Constitution for grant of  certificate of  fitness  for leave to appeal to this Court, but  it  was refused on October 19, 1962.  The ground, as recorded, prima facie  showed  that  such an application was  for  leave  to appeal against the order in the Criminal Revision, No.  1172 of 1962.  In these circumstances, the special leave  granted is liable to be revoked. The  appellate court sees that the order of the court  below ,on the material on record is correct or not and has to pass a correct order on that material.  If the trial Court  could not have taken action under the provisions of the Act  which was  riot in force at the time it found the accused  guilty, the appellate Court could not have taken action under  those provisions  unless the Act specifically provided  for  those provisions to be applicable to cases which had been  decided earlier, prior to its application.  There is no such express provision  in  the  Act  and I do  not  find  any  necessary

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implication from the provisions of the Act in that regard. It  is  true that appellate Courts have allowed  parties  to take  advantage of a law enacted during the pendency of  the case, but this is done when parties can litigate further  in view of the changed law and is done to save multiplicity  of proceedings.  Such a ground is not available in the  present case. Ordinarily,  it  takes a few years for a case decided  by  a Magistrate  who  tries  it in the first  instance,  and  the passing  of the final order by the High Court  in  revision. Ordinarily,  an appeal lies to the Sessions Judge  from  the order of the Magistrate and a revision against the  Sessions Judge’s order to the High Court.  The two proceedings before the Sessions Judge and the High Court do take time.  The Act is an all-India Act -and there would be a very large  number of   persons  convicted  by  trial  Courts  prior   to   the enforcement of the Act.  It is too much to suppose that  the legislature intended that all the orders of the  Magistrates in  such cases of conviction against persons under 21  years of age automatically become illegal and liable to correction by  the Courts of appeal and revision.  Not only would  they be  liable  to  be  set aside,  the  setting  aside  of  the Magistrates’ orders about sentences would not have ended the matters  but  would have led to further  proceedings  to  be taken  by  the Magistrates or the appellate Courts  for  the purpose  of  coming to a conclusion whether  action  can  be taken in accordance with the provisions of ss. 3, 4 and 6 of the Act.  All those numerous cases would have to be reopened and I  cannot believe that the legislature would  have  intended such  a  result  and would not have  expressed  itself  very clearly if it had really intended so. Section  3 of the Act empowers the Court to release  certain offenders  after admonition and s. 4 empowers the  Court  to release certain offenders on probation of good conduct.  The Court  which is to take action under these sections  is  the Court by which the person is found guilty of the offences in the  respective sections and in circumstances  specified  in the  respective sections.  Such orders are made  instead  of sentencing  the person found guilty to any punishment  which could  be  awarded to him.  It is clear  that  action  under these  sections  can  be taken by the Court  which  finds  a person  guilty of the offence for the first time.  A  person may  be found guilty of the respective offence by the  trial Court or by appellate Court if it alters his conviction  for an offence which did not fall under either of those sections to  one which falls under any of them, or by the High  Court if  it  finds the accused person guilty  on  appeal  against acquittal.  It is in these circumstances that it can be said that  the  trial Court or the appellate Court  or  the  High Court  has  found an accused guilty.  A  Court  of  revision cannot  convert  a finding of acquittal into  a  finding  of conviction  and therefore no such case can arise in which  a Court of revision for the first time finds an accused guilty of an offence to which the provisions of ss. 3 and 4 of  the Act apply. When an appellate Court confirms the conviction of a  person it is not the Court which finds him guilty but is the, Court which  confirms  the finding of the trial  Court  about  the person being guilty on forming an opinion that the order  of the trial Court is correct.  If the expression ’the Court by which  the  person  is  found guilty’  was  to  include  the appellate  Court confirming the conviction of a  person  for the  offence  which fell under any of the two  sections,  it would not have been necessary to clothe the appellate  Court

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with a power to take action under these sections, as  sub-s. (1) of s. 11 does.  This subsection reads:               "Notwithstanding  anything  contained  in  the               Code or any other law, an order under this Act               may be made by any Court empowered to try  and               sentence the offender to imprisonment and also               by the High Court or any other Court when  the               case  comes  before  it on appeal  or  in  re-               vision." It  is clear from the language of this sub-section that  the Court which is empowered to order under the Act in the first instance is the Court which is empowered to try and sentence the offender to imprisonment, i.e., the original trial 689 Court.  It is given the power to take action under the  Act. Orders  under the Act can also be made by the High Court  or any  other Court when the case comes before it on appeal  or in  revision.  The question is as to in which case the  High Court  or any other Court, can exercise its power.   It  can exercise  it, when the case in which the trial  Court  could have  exercised  the power comes before it.  This is  to  be deduced  from  the  use  of the word  ’also’  and  from  the occasion  when  the High Court or any other Court  can  make such  an  order, it being when the case comes before  it  on appeal  or in revision.  It must, therefore, be the case  in which  the trial Court could take a certain action in  which the  High  Court or any other Court could also  take  action only when it came before it on appeal or in revision.  I  do not consider it reasonable to construe the language of  sub- s. (1) to mean that the High Court or any other Court  could take  action  in all cases of appeal or revision  before  it irrespective of the fact whether the trial Court could  have made an order tinder the Act in those cases or not. The  scheme of s. 11 seems to support this view sub  section (1) mentions the Courts which can make orders under the Act. Sub-section (2) provides an appeal where an order under s. 3 or  s. 4 is made by any Court in trying an  offender.   This means that when a Court trying an offender convicts him  and takes action under s. 3 or s. 4, an appeal in that case will lie.   Of course no question of the appellate  Court  taking action  under  s. 3 or s. 4 arises in such  appeals  because action  has  already been taken by the trial Court  and  the appellate  Court would only look to the correctness  of  the conviction and in case it finds action under s. 3 or s. 4 to be  unjustified,  may  even set aside that  order  and  pass suitable  sentence as provided in sub-s.  (4).   Sub-section (2)  makes  provision  for an appeal and  sub-s.  (4)  makes provision for the appellate Court to consider the  propriety of  any  order  made under ss. 3 or 4  of  the  Act.   These provisions in sub-s. (2) and sub-s. (4) exhaust the cases in which  orders  under ss. 3 or 4 could be made  by  the  High Court or any other Court. While ss. 3 and 4 confer a discretionary power in the  Court to  make  an  order under those  sections  in  certain  cir- cumstances,  sub-s.  (1) of s. 6 makes it incumbent  on  the Court  finding  a  person under 21 years of  age  guilty  of offences  punishable with imprisonment not to sentence  such person  convicted of such an offence to imprisonment  unless it is satisfied, having regard to the facts mentioned in the sub-section that it would not be desirable to deal with  him under  s.  3 or s. 4 and in that case it has to  record  its reasons for sentencing him to imprisonment.  Sub-section (2) makes  it  incumbent on the Court to get a report  from  the Probation Officer and consider it in order to satisfy itself whether  it would not be desirable to deal under s. 3 or  s.

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4. These provisions of s. 6 restrict 690 the discretion of the trial Court for taking action under s. 3  and s. 4 in regard to persons under 21 years of  age  and constricted of all offences except offences punishable  with imprisonment for life.  A Court can, however, sentence  such a  person  to imprisonment only  after  considering  various matters  and finally satisfying itself that it would not  be desirable  to make an order under s. 3 or s. 4 in regard  to that person. A  case to which the provisions of s. 6 apply is dealt  with by sub-s. (3) of s. II which provides that when a Court  has declined to deal with the person under s. 3 or s. 4 and  has passed a sentence of imprisonment and when no appeal lies or none has been preferred from that order, the Court to  which appeals  ordinarily lie from the sentence of the Court  may, suo  motu or on an application made to it by  the  convicted person  or the Probation Officer, call for and  examine  the record of the case and pass such order thereon as it  thinks fit.   Of course, if the order is appealable, the  appellate Court can consider the matter in view of the power conferred under sub-s. (1), which enables the appellate Court when the case  comes  before  it to make any  order  under  the  Act. Action  under sub-s. (3), it is clear, can be taken  by  the appellate  Court only in cases in which the trial Court  has declined to take action under s. 3 or s. 4, that is to  say, the trial Court, at the time of conviction and sentencing  a person,  had the power to make an order under s. 3 or  s.  4 and had felt satisfied that such an order was not desirable. If  it has no such power at the time and has passed  a  non- appealable  order,  or when the convicted  person  does  not appeal,  action cannot be taken under sub-s. (3) because  it cannot  be said with any propriety that the trial Court  had declined to take action under s. 3 or s. 4. This is a strong indication  of  the fact that powers conferred on  the  High Court or any Court of appeal or revision under s. II are  to be  exercised in the cases coming before them in  which  the trial Court itself could have made an order under the Act. Reference  may  also be made to an  incidental  matter.   An order  of admonition under s. 3 puts an end of the  case  it being the final order against the convicted person,  subject of  course to the orders of the appellate Court in case  the convicted  person  appeals  against  his  conviction.   This cannot be said with respect to an order under s. 4, an order which would direct that the convicted person be released  on his entering into a bond to appear and receive sentence when called  upon during such period, not exceeding 3  years,  as the  Court may direct and in the meantime to keep the  peace and  be  of  good behaviour.  The passing  of  the  sentence provided for the offence is put off and the convicted person stands  the risk of a proper sentence being  passed  against him in future in 691 certain  circumstances.  Section 9 provides in case  of  the convict’s failure to observe the conditions of the bond that he  and his sureties be summoned to Court which  may  remand the  accused to custody or grant him bail and, if  satisfied that  he had failed to observe any of the conditions of  the bond, forthwith to sentence him for the original offence and where the failure is for the first time to impose upon him a penalty  not  exceeding Rs. 50/- without  prejudice  to  the continuance  in  force  of the bond.  In  case  a  convicted person  has not been able to observe the conditions  of  the bond, he, in a way, stands to suffer larger punishment  than what  he  would have got in the first instance  in  case  in

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addition  to the sentence which would be passed upon him  he had  already, for a certain period, observed the  conditions of the bond and had also, in view of the provisions of s. 5, paid compensation to the victim of the offence and costs  of the proceedings which are recovered as fine.  The Code  does not  provide for the payment of costs and provides  for  the payment of compensation when ordered out of the fine imposed on an accused; vide ss. 545 and 546A of the Code. This Court considered certain provisions of the Act in Ramji Missar  v. State of Bihar(1) and held that the crucial  date for the application of the aforesaid sections viz., ss. 3, 4 and 6 of the Act to, the case of an accused whose conviction by  the trial Court of offences to which those  sections  do not apply, was altered by the appellate Court to an  offence to which the provisions of those sections applied, would  be the (late of the decision of the trial Court in view of  the terms  of the section on grounds of logic as well as on  the theory  that the order passed by an appellate Court was  the correct  order  which the trial Court  should  have  passed. This  tends to support the view I have expressed above.   It may  be  mentioned that in that case the trial  Court  could make an order under s. 4 of the Act at the time it convicted one  Basist, who was then under 21 years of age, if  it  had convicted him of the offence to which the provisions of s. 4 applied.   The High Court altered the conviction to such  an offence but held that it was not competent to pass an  order under  s. 6 of the Act.  This Court held that it could.   In the instant case, the trial Court could not take any  action in accordance with the provisions of the Act for the  simple reason that the Act was not in force on the day it convicted the appellant. I am, therefore of opinion that the point for  determination before us. that is, whether the appellate Court can make  an order under the Act in cases in which the trial Court on the date  of conviction could not have made an order  under  the Act did not arise for decision in that case.  This question, (1)  [1963] Supp. 2 S.C.R. 745. 692 is  very  different from the question whether  an  appellate Court  can  make an order under the Act when it  alters  the conviction  of  an appellant to an offence with  respect  to which  an  order under the Act could have been made  by  the trial Court as arose in Ramji’s Case(1). I am therefore of opinion that the High Court could not have made an order under the Act in this case and that  therefore this appeal should fail.  I would accordingly dismiss it.                            ORDER In accordance with the opinion of the majority, we set aside the  order of the High Court and direct it to make an  order under  s. 6 of the Probation of Offenders Act, 1958, or,  if it so desires, to remand it to the Sessions Court for  doing so. Appeal allowed. (1) [1963] Supp. 2 S.C.R. 745. 693