R. Mahalingam vs G. Padmavathi and Another

Paul, J.—This Criminal Revision Petition is against the order of the learned III Metropolitan Magistrate, Saidapet, releasing the respondents-accused on probation of good conduct under S. 4(1) of the Probation of Offenders Act,

The petitioner it the private complainant who laid the private complaint before the learned III Metropolitan Magistrate, Saidapet, Madras, against the respondents-accused alleging an offence under S. 417, I.P.C. The learned Magistrate has found the respondents guilty of an offence under S. 417, I.P.C. but released them under the Probation of Offenders Act.

It is now contended that the learned Magistrate has not before passing the order under S. 4(1) of the Probation of Offenders Act, called for and considered the report of the Probation Officer and further that, in these circumstances of this case, it is not appropriate to invoke the provisions of the Probation of Offenders Act.

In Gouranga Charm Bhol v. State of Orissa 1974 Crl.L.J. 955 , it has been held by the Orissa High Court that the Court before releasing an accused under the Probation of Offenders Act must have the opinion that having regard to the circumstances of the same including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct and this opinion the Court can form on the basis of report of the Probation Officer only and hence the obtaining of the report is mandatory. To the same purport is the decision in State v. Nogvash G Shat AIR 1970 Goa. Daman and Diu 49 S. 4(1) of the Probation of Offenders Act states as follows:

When any person it 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 behavicur.

We are not concerned with the proviso to that sub-Section. Sub-S.(2) states:

Before making any order under sub-S.(l), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the same.

The question now is whether in view of this sub-section, it is obligatory on the part of the Court to call for a report from the Probation Officer and then pass an order or refuse to pass an order under S. 4(1). No doubt, the sub-section says that the Court shall take into consideration the report. Therefore, if any report is filed by the Probation Officer, the court it bound to consider it.

But then, the words "if any" occurring after the words "the court shall take into consideration the report" raise a doubt as to whether the Court is bound to call for a report from the Probation Officer. In the decisions referred to by me above, both the Orissa High Court and the Judicial Commissioner, Goa, Daman and Diu are of the view that obtaining such a report of the Probation Officer is mandatory since the sub-section says that the court shall consider the report of the Probation Officer and that the words "if any" does not mean that the court seed not call for a report from the Probation Officer. In support of that view, the decision of the Supreme Court in Rattan Lal Vs. State of Punjab, has been referred. In the afore said decision, the Supreme Court was considering S. 6 of the Probation of Offenders Act. The Supreme Court observed as follows:

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 considering the said material the Court shall satisfy itself whether it is desirable to deal with the offender under Ss. 3 and 4 of the Act. If it is not satisfied that the offender should be dealt with: under either of the 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 words "shall" make it a mandatory condition and the expression "if any" can in the context, only cover a ease 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.

There is a slight difference between sub-S. (2) of S. 4 and sub-s. (2) of S. 6. Sub-S. (2) of S. 4 reads as follows:

Before making any order under sub-S. (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the same.

Sub-S. (2) of S. 6 states:

For the purpose of satisfying itself whether it would not be desirable to deal under S. 3 or S. 4 with an offender referred to in sub-S. (1), the court shall call for a report from the Probation Officer and consider the report, if any...

Sub-S. (2) of S. 6, therefore, makes it very clear that the report of the Probation Officer shall be called for and then it states that the court shall consider the report, if any. Sub-S. (2) of S. 4, however, does not state that the court shall call for a report from the Probation Officer, but merely states that the Court shall take into consideration the report, if any. Both the sub-sections use the words "if any" and the Supreme Court has pointed out that these words "if any" would only cover a case where notwithstanding such requisition, the Probation Officer, for one reason or other, has not submitted a report Therefore, I am also of the view that before deciding to act under S. 4(1) also, it is mandatory on the part of the court to call for a report from the Probation Officer and if such a report it received, it is mandatory on the part of the court to consider the report. But, for one reason or the other, if such a report is not forthcoming, the court has to decide the matter on other materials available to it. In this case, the Magistrate has not called for any report from the Probation Officer. He has merely referred to the fact that the circumstances of the case reveal that A-l and A-2 were in agitating state of mind and upset due to the presence of P.W.3 with a bailiff and hence the circumstances do not warrant a deterrent sentence. He has also referred to the fact that A-1 is a warren and A-2 is a student studying in the college. Now, S. 4(1) states that the court should form the 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. Now in this case, the learned Magistrate has not referred to the character of offenders. Therefore, I find that the order of the learned Magistrate has to be set aside and the case is remanded back to the III Metropolitan Magistrate, Saidapet, Madras, for considering the question afresh with reference to the requirements of S. 4 of the Probation of Offenders Act as to whether the offenders should be released on probation under the Probation of Offenders Act or whether they should be sentenced. The revision petition is allowed to this extent.