Harbhajan Singh vs Tarlok Singh and others

C.G. Suri, J.—Four persons were jointly tried for offences made punishable u/s sections 323, 324 and 325 read with section 4 of the Indian Penal Code for having, in furtherance of their common intention, voluntarily caused simple and grievous injuries to three members of the complainant party. Two of the accused persons were admittedly below 21 years of age. The trial Magistrate found them all guilty but having regard to the circumstances of the case, decided to release them on probation of good conduct u/s 4 of the Probation of Offenders Act, 1958 (hereinafter briefly referred to as ''the Act)''. He had apparently not found it necessary to send for the Probation Officer''s report u/s 6 (2) of the Act.

The complainant felt aggrieved against the lenient view taken by the trial Magistrate and fled a revision petition. The Additional Sessions Judge, Patiala, has recommended that the case should be sent back to the trial Magistrate and that he (the Magistrate) should be directed to pass a proper sentence on the accused. In his view it was Incumbent on the trial Magistrate to call for and take into consideration the Probation officer''s report under sub-section (2) of lection 6 before giving the accused the benefit of section 4 of the Act. Reliance has in this connection been placed by the learned Additional Sessions Judge on the Supreme Court ruling in Rattan Lal Vs. State of Punjab, .

The accused have not but in appearance in this Court. No one hat, therefore, come forward to oppose this recommendation. Shri Prasher, the learned Assistant Advocate General who appears for the State of Punjab, has also nothing to say against it. On a careful perusal of the provisions of the Act and the observations of the Hon''ble Judges in Rattan Lal''s case (supra), I however feel that there was no real necessity for recommending interference in revision in this case.

As observed by the Hon''ble Judges of the Supreme Court in The State of Orissa Vs. Sudhansu Sekhar Misra and Others, , a decision is only an authority for what it actually decides and what is of the essence of the decision is its ratio and not every observation found therein Similarly, it was observed by the Hon''ble Judges in B. Shama Rao Vs. The Union Territory of Pondicherry, , that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down.

The facts in Rattan Lal''s case (supra) were quite different. There was only one accused and he was below 16 years of age. He had been convicted and sentenced to imprisonment for six months by a Magistrate u/s 354, Indian Penal Code, before the coming into force of the Probation of Offenders Act, 1958. The provisions of the Act were not noticed even by the Additional Sessions Judge while dismissing the offender''s appeal after a few days of the Act having been extended to the territories in which the offence bad been committed. The High Court had also declined to give the accused the benefit of the provisions of the Act. It was on these facts that the Hon''ble Judges of the Supreme Court were pleased to observe that it was incumbent on the Courts below to send for and consider the Probation Officer''s report u/s 6(2) of the Act before denying the accused the benefit of probation. This ruling would not imply that where the Courts feel on the basis of material already brought on record that the accused can be given the benefit of section 4 of the Act without calling for that report they cannot do so. A Probation Officer''s report can be called u/s 6(2) only in cases where the accused is below 21 years of age. Where the accused is above that age, section 6(2) will not apply. The language of section 4 of the Act, however, makes it clear that the benefit of this section can also be given under certain circumstances, to accused persons who are above the age of 21 years. If adults can be given the benefit of probation without calling for the Probation Officer''s report, I do not see why the same leniency cannot be shown to persons when their tender age would be an additional circumstance going in their favour. It would be helpful at this stage to reproduce below the pertinent portions of sections 4 and 6 of the Act :--

Power of Court to release certain offenders on Prabation 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 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 to release him on probation of good conduct, 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 without sureties, 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), (4) and (5) ... ... ...

(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 casa including the nature of the offence, and the character of the offender, it should not be desirable to deal with him u/s 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 u/s 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 information available to it relating to the character and physical and mental condition of the offender.

On a careful reading of the provisions of the Sections, it appears obvious that the bar is to the passing of a sentence of Imprisonment on a youthful offender under the age of 21 years unless the Court has satisfied itself after considering the Probation Officer''s report and other circumstances that an order u/s 3 or section 4 of the Act would not be the appropriate step to be taken in the case There is no such bar or prohibition to the granting of probation to an offender, whether he be young or old, where the Court is satisfied, independently of the Probation Officer''s report, but otherwise on a consideration of the circumstances already appearing on record, that the grant of such probation would be the just order. It is only in cases where the Court has decided to pass a sentence of imprisonment on a youthful offender that it has to look into the circumstances for the purposes of satisfying itself about the desirability of granting probation. It is for this satisfaction that the Court is called upon to send for the Probation Officer''s report and that also in the case of youthful offenders only. The benefit of section 4 can also be granted to persons who are above 21 years of age in cases where the offence committed is not punishable with imprisonment for life or with death. Where the offences is punishable with shorter terms of imprisonment, the offender can be granted the benefit of section 4 even if he is above the age of 21 years. In his case, not report can possibly be called u/s 6(2). The words "if any" in section 4(2) would call for a different interpretation than had been put on these words by the Hon''ble Judges in Rattan Lal''s case (supra) and that is so because the only accused in that case was an offender below 21 years of age and the Courts had passed a sentence of imprisonment without satisfying themselves, in the manner laid down, that it would not be desirable to deal with him u/s 3 or section 4. In the changed context, the words "if any" in section 4(2) may seem to assume an altogether different significance than the one construed in Rattan lal''s case (supra). The word "shall" in section 4(2) would nature-ally cease to have any mandatory connotation in the case of offenders above 2 1 years of age because no report can legally be called in respect of such offenders under sub-section (2) of section 6 of the Act. The language of this sub-section makes it clear that the Probation Officer''s report can be called only in respect of offenders referred to in sub-section (1) of that section. Section 6 deals only with offenders below 21 years of age and no report can be called under sub-section (2) thereof in respect of adult offenders above 21 years of age. The word "shall" in section 4(2) cannot have the same meaning in respect of adult offenders as it may have in case of offenders below 21 years of age and to whom the Court may have decided to deny the benefit of probation. Where the Court decides to grant probation, the calling of a report u/s 6(2) is not obligatory It is only if the Court decides to award imprisonment to a youthful offender, as in Rattan Lal''s case (supra), that the calling of a report u/s 6(2) and its consideration for the satisfaction of the Court have been made obligatory. As observed by the Hon''ble Judges of the Supreme Court in Rattan Lal''s case (supra), the Act is a milestone in the progress of the modern liberal trend of reform in the filed of penology. To render a beneficial provision of this universal type in a restricted sense so as to confine the powers of the Courts would not be in accord with sound principles of statutory interpretation. No material irregularity or illegality which could be described to have caused any miscarriage of justice, has been committed by the Magistrate and the case does not call for any interference in revision.

I accordingly decline the recommendations made by the Additional Sessions Judge, Patiala and dismiss the revision petition filed by the complainant against the trial Magistrate''s order.