Rajive Sandhu vs State of Union Territory

Satish Kumar Mittal, J.—The present revision-petition has been filed by the petitioner against the judgment dated 9-3-2004, passed by Additional Sessions Judge, Chandigarh, vide which his conviction and sentence u/s 380, I.P.C. recorded by Judicial Magistrate, 1st Class, Chandigarh, vide judgment and order dated 7-4-2003, has been set aside. However, the conviction of the petitioner u/s 411, I.P.C. has been upheld and the sentence of two years rigorous imprisonment awarded thereunder by the learned trial Court has been reduced to nine months by the learned appellate Court. The sentence of fine imposed u/s 411, I.P.C. has been upheld.

The petitioner-Rajive Sandhu was employed in M/s. K.B. Tools, Industrial Area, Phase II, Chandigarh, owned by Karnail Singh-complainant. The case against the petitioner was lodged on the basis of statement of the complainant-Karnail Singh, owner of the aforesaid company. The allegations against the petitioner are that he had stolen some tools from the factory premises. At the time of commission of the offence, the petitioner was 18 years and 9 months old.

Initially, the learned trial Court convicted and sentenced the petitioner to undergo rigorous imprisonment for two years under Sections 380 and 411, I.P.C. He was also sentenced to pay a fine of Rs. 500/- and Rs. 200/- for the aforesaid offences. In default of payment of fine the petitioner was ordered to undergo rigorous imprisonment for a period of 30 days and 15 days, respectively. In appeal, the learned appellate Court set aside the conviction of the petitioner u/s 380, I.P.C. and reduced his sentence of imprisonment u/s 411, I.P.C. to nine months. However, the sentence of fine for the commission of offence u/s 411, I.P.C. was upheld. Hence, this revision-petition.

Learned counsel for the petitioner did not raise any argument on the conviction of the petitioner. However, he made submissions only qua sentence. In this regard, he submitted that at the time of the occurrence, the petitioner was below 19 years of age. And at the time of conviction by the trial Court, he was about 20 years of age. Therefore, being a first offender, he could not have been sentenced in view of Section 6 of the Probation of Offenders Act, 1958 (hereinafter referred to as ''the Act'') and the Court was bound to release him on probation because he was less than 21 years of age. Learned counsel submitted that there is a restriction imposed by the legislation u/s 6 of the Act that when any person under 21 years of age is found guilty of having committed an offence punishable under imprisonment (but not with imprisonment for life), the Court shall release him on probation. He further submitted that before the learned trial Court, a request was made for taking a lenient view while sentencing the petitioner because he is having five brothers and sisters and is son of a poor agriculturist, who needed financial help. It was also stated that the petitioner was the first offender. But the learned trial Court did not consider, the request. Before the learned appellate Court also a specific plea was taken and the matter was considered. It was observed by the learned appellate Court that the petitioner is not a previous convict; he is a poor man having five brothers, sisters and father in his family and that the stolen articles recovered from him are also not so valuable. Learned counsel for the petitioner submitted that in spite of these observations and the fact that at the time of his conviction, the petitioner was less than 21 years of age, he was not released on probation. Regarding the age of the petitioner, his matriculation certificate has been annexed with this petition, in which his date of birth is recorded as 4-2-1983. In the judgment of the learned trial (Court) also, his age is recorded as 20 years on the date of his conviction.

While referring to Section 11 of the Act, learned counsel for the petitioner submitted that even if the matter for releasing a convict on probation is not properly considered by the trial Court or the appellate Court, this Court, in revision is fully empowered to consider the issue of his release on probation, in view of Section 6 of the Act. In support of his contentions, learned counsel relied upon the decisions of the Hon''ble Apex Court in Ishar Das Vs. The State of Punjab, ; Daulat Ram Vs. The State of Haryana, ; Mohamed Aziz Mohamed Nasir Vs. State of Maharashtra, and Masarullah Vs. State of Tamil Nadu, and two judgments of this Court in Jai Gopal Vs. The State, and Shamsher v. State of Haryan 1975 CLR 57 (DB).

After hearing the arguments of learned counsel for the petitioner and perusing the record of the case, I am of the opinion that there is merit in the contention raised by learned counsel for the petitioner.

From the record of the case, it is clear that at the time of commission of the offence, the petitioner was 18 years and 9 months old and on the day of conviction, he was about 20 years old. He was a first offender. It has also come on record that he belongs to a poor agriculturist family consisting of five brothers, sister and father. The learned appellate Court, in its judgment, has also observed that the stolen articles recovered from the petitioner were not so valuable. The sentence of his imprisonment u/s 411, I.P.C. has been reduced to nine months. It is apparent from the judgment of the learned trial Court that the issue of releasing the petitioner on probation was not considered as it may not be properly raised before it. Before the learned appellate Court, though this issue was raised, but was not properly appreciated in view of Sections 6 and 11 of the Act. It was mandatory for the trial Court as well as the appellate Court to consider this aspect of the matter in view of the fact that at the time of commission of the offence as well as at the time of conviction, the petitioner was less than 21 years of age and the sentence awarded to him by the Courts below was only two years/nine months. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.

Sections 6 and 11 of the Act are reproduced for ready reference :--

"6. Restriction 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 case including the nature of the offence and the character of the offence, 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 offender."

Courts competent to make order under the Act, appeal and revision and powers of Courts in appeal and revision.

(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 u/s 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 He 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 u/s 3 or Section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything 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) When an order has been made u/s 3 or Section 4 in respect of an offender, the appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law:

Provided that the appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty."

From the bare perusal of Section 6 of the Act, it is clear that this Section imposes restriction on the power of the Court to sentence a convict under 21 years of age for the commission of the offence mentioned therein unless the Court is satisfied that it is not desirable to deal with him u/s 3 or 4 of the Act. The Court is also required to record reasons for passing sentence of imprisonment on such offender.

In Mohamed Aziz Mohamed Nasir''s case supra, the accused was convicted u/s 379 read with Section 34, I.P.C. and was sentenced to undergo rigorous imprisonment for six months. He was less than 21 years of age at the time of commission of the offence and his conviction, but his case for probation was not considered by the trial Court, appellate Court as well as by the High Court, as the provisions of Section 6 of the Act were not specifically brought to the notice of the Courts. The Hon''ble Supreme Court, while releasing the petitioner on probation, observed as under at Page 584; of Cri LJ:--

".....Sub-section (1) of Section 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 u/s 3 or Section 4 and if the Court chooses to pass any sentence of imprisonment on the offender, it shall record its reasons for doing so. Sub-section (2) of Section 6 then goes on to say that 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. Section 6 thus lays down an injunction, as distinct from a discretion u/s 3 or Section 4, not to impose a sentence of imprisonment on a person who is under twenty-one years age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him u/s 3 or Section 4. This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the stage of trial Court but also at the stage of "High Court or any other Court when the case comes before it on appeal or in revision", vide Section 11, Sub-section (1) of the Act. It is, therefore, obvious that even though the point relating to the applicability of Section 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."

Similarly, in Daulat Ram''s case supra, where the accused, who was less than 21 years of age, was convicted u/s 325 read with Section 34, IPC and sentenced to undergo rigorous imprisonment for two years, it was held as under :--

"Section 6 places restriction on the Court''s power to sentence a person under twenty-one years of age for the commission of offences mentioned therein unless the Court is satisfied that it is not desirable to deal with the offender under Sections 3 and 4 of the Act. The Court is also required to reasons for passing sentence if imprisonment on such offender. Section 11 of the Act empowers the Court of appeal and revision also to make order under the Act. The object of Section 6 of the Act is to see that young offenders are not sent to jail for the commission of less serious offences mentioned therein because of grave risk to their attitude to life to which they are likely to be exposed as a result of their close association with the hardened and habitual criminals who may happen to be the inmates of the jail. This section deserves to be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company."

In Masarullah''s case supra, where the accused was convicted for offences under Sections 397 and 452, IPC and was sentenced to 5 and 7 years'' imprisonment respectively, it was held that in case of the accused/offender under the age of 21 years on the date of commission of the offence and belonging to a lower middle class, the Court is expected ordinarily to give benefit of Section 6 of the Act. While deciding whether the offender should be granted the benefit, it is necessary for the Court to keep in view three relevant aspects i.e. nature of the offence, character of the offender and the attendant and surrounding circumstances. In that case, the Hon''ble Supreme Court granted benefit of probation to the accused/ offender. Similarly, in Jai Gopal''s case (supra), this Court has held that if the accused is less than 21 years of age at the time of his conviction by the trial Court, the Court must release him on probation u/s 6 of the Act, but if the Court decides not to release him on probation, then it must call the report of the Probation Officer u/s 6(2) of the Act whose provisions are mandatory. If the report of the Probation Officer is not called and the accused is awarded imprisonment the sentence awarded to him is illegal. Similarly, a Division Bench of this Court in Shamsher''s case (supra), where conviction of the accused was altered from Section 302, IPC to u/s 304(2) read with Section 34, IPC and he was sentenced to seven years rigorous imprisonment, he was released on probation.

Thus, from the aforesaid precedents, it is clear that the object of Section 6 of the Act is to ensure that the young offenders are not sent to jail for the commission of less serious offences because of grave risk to their attitude to life to which they are likely to be exposed as a result of their close association with the hardened and habitual criminals. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. It is for this reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6 of the Act.

In view of the aforesaid legal position and the fact that at the time of conviction, the petitioner was under 21 years of age; has five brothers and sisters; is son of a poor agriculturist and that the stolen articles recovered from him are not so valuable, the sentence of imprisonment imposed by the learned appellate Court is set aside and the petitioner is directed to be released on probation of good conduct for a period of six months. He should in the meantime keep peace and be of good behaviour during the said period of six months. He shall furnish the requisite bonds with one surety to the satisfaction of Additional Sessions Judge, Chandigarh.

With the aforesaid modification in the sentence, the present petition stands disposed of.