Ramesh Lal vs State of J & K

Condonation of delay for filing this conviction appeal has already been granted in CMP No:253 of 1994 on 831995.

On coming up this appeal for admission and after hearing learned counsel for the parties and considering the application for bail which came to

be registered as Cr. M.P. No:22 of 1994, it is proposed to dispose of the matter at the preliminary hearing.

Ld. Counsel for the appellant has drawn my attention to the fact that the accused who has been convicted under Section 376/511 RPC for

having committed attempt to rape with a minor girl of eight years, admittedly when the accused/appellant was below the age of 21 years.

It is also submitted by learned counsel for the appellant that he raised a plea at the time of awarding the quantum of sentence after the conviction

of the appellant, that the Court may be lenient in awarding the sentence and may take recourse to Section 6 of the Probation of Offenders Act,

where under the offenders/ convicts below the age of 21 years are being afforded an opportunity to show good behaviour. Section 6 reads thus:

Restriction on imprisonment of offenders under twentyone 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 the character of the offender, it would not

be desirable to deal with him under 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. 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 subsection (!) 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.

But his contentions were rejected by the trial Court and the benefit was not given to the accused/appellant and craves for the indulgence of this

Court on the appellate jurisdiction to entertain the plea and pass appropriate orders on that count.

On the other hand, Mr. Kapoor argued that the provisions of Section 6 of the probation of Offender Act and the provisions envisaged under

Section 562 of the Cr. P.C. are same and the provisions of Section 562 provided that when a person not under twenty one years of age is

convicted of an offence punishable with imprisonment for not more than seven years, he is to be given the behalf under Section 562 Cr. P.C. which

reads:

562: power of Court to release certain convicted offenders on probation of good conduct instead of sentencing to punishment. (1) when any

person not under twenty one years of age is convicted of any offence punishable with imprisonment for not more than seven years or when any

person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous

conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or

antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released

on probation of good conduct, 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 mean time to keep the peace and be of good behaviour:

Provided that, where any first offender is convicted by a Judicial Magistrate of the second class not specially empowered by the High Court in this

behalf, and the Magistrate is of opinion that the powers conferred by this Section should be exercised, he shall record his opinion to that effect, and

submit the proceedings to a Judicial Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such

Magistrate, who shall dispose of the case in manner provided by Section 380.

Thus learned counsel for the respondents want to impress upon this Court that the person at the time of conviction must be below 21 Years of

age and here in the present case, the person at the time of conviction is admittedly of 27 Years of age and as such, he is not entitled to any such

benefit which is being claimed by the appellantconvict.

I am afraid to give restrictive interpretation to the provisions of law. It will be anomalous position in case a person who is found quilty at the time

of his conviction, but quilt has been committed when he was below 21 Years of age, he will be given benefit and a person who has committed an

offence at the age of below 20 Years, but his conviction is passed on a latter stage by protraction of trial and the procedural wrangles, he is being

denied this benefit and that will be most unfortunate day in case this interpretation is given to this Section. The Hon'ble Apex Court has clinched

this issue in AIR 1973 SC 906, wherein their lordships while disposing of the appeal have relied upon Judgments passed by the Apex Court and

which are reported as AIR 1965 SC 444 and 19651 Criminal Law Journal 360 and 1964 (7) SC Reporter 676 and while making reliance on

these Judgments, the Hon'ble Apex Court has observed:

After hearing learned counsel for the parties, following order must be made in this case in view of the decisions of this Court in 1964 (7) SCR

676 and 1965 (1) Cr. Law Journal 360) when the birth certificate produced shows that the appellant was below 21 Years of age at the time of the

commission of the offence:

The order of the High Court is set aside and the High Court is directed to make an order under Section 6 of the probation of Offenders Act 1958

and if it so desires remand the case to the Sessions Court or the trial Court for doing so. The appeal shall stand allowed accordingly.....

So in light of the Judgment given by the apex Court, the facts and circumstances of the case and the ratio of the decision arrived at is aptly

applicable to the case in hand and on the basis of the Judgment and after hearing learned counsel for the parties, I dispose of the appeal and while

allowing the bail application, appellant is directed to furnish bail and personal bond to the tune of Rs.10,000/ to the satisfaction of the Additional

Registrar Jammu with two sureties and in the meanwhile, I remand the case back to the learned Judge with the direction that he shall consider and

hear the parties afresh regarding extension of benefit of probation of Offenders Act read with section 562 Cr. P. C. to be afforded to the accused.