Randhir Singh vs Balraj and Another

A.N. Jindal, J.—The prime question raised by the counsel for the petitioner in this case is "whether the benefit of probation could be extended in case where the offence is punishable for life?"

Vide judgment dated 07/08.06.2004, Sub Divisional Judicial Magistrate, Gohana, Camp Court at Sonepat convicted and sentenced all the three accused-respondents (herein referred as ''the accused'') to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each u/s 324 IPC and rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000/- each u/s 326 IPC. In appeal, the learned Addl. Sessions Judge, Sonepat, vide judgment dated 07.10.2004, while dismissing the appeal, confirmed the judgment of conviction holding as under:

Seen from all angles I find that there is no infirmity in the findings recorded by the lower court. The conviction is, therefore, maintained.

However, while maintaining the sentence, the Court without mentioning any section extended benefit of probation on furnishing bonds in the sum of Rs. 25,000/- with one surety each in the like amount for a period of three years and the fine was converted into costs of proceedings. The relevant extract from the judgment of sentence passed by the Appellate Court is reproduced as under:

Now coming to the last plea taken by the accused regarding the benefit of probation, the parties are related to each other. The incident took place many years ago. The accused were on bail throughout trial. No untoward incident had taken place. They have not misused the concession of bail. Both the parties are neighbourers. No incident had been brought to my notice that any quarrel had taken place during the said period and this indicates the distinct possibility of the appellants redeeming themselves, if given an opportunity. Taking all these facts into consideration, I feel that ends of justice would sufficiently met, if the appellants are released on probation on their furnishing bonds in the sum of Rs. 25,000/- with one surety each in the like amount for a period of three years. The fine paid by them is converted into costs of proceedings. Meantime, they would keep peace and be of good behaviour and in case they fail to adhere, they will surrender and undergo the sentence passed by the trial Court. Bonds be furnished within a week. In case of failure to furnish the bonds within the time, they will undergo the punishment awarded by the trial Court.

Learned Counsel for the parties do not dispute that in an offence punishable for life, no benefit of probation could be extended to the accused. In the present case, the accused were convicted by the trial Court under Sections 324 and 326 read with Section 34 IPC and the said conviction was maintained by the Appellate Court. However, it appears that the Court, while ignoring the provisions of law, extended benefit of probation u/s 4 & 6 of the Probation of Offenders Act, 1958. Relevant extract of Section 4 of the said Act reads as under:

Power of the Court to release certain offenders on probation 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) When an order under Sub-section (1) is made, the Court, may, if it is of opinion that in the interests of the offender and of the public, it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) & (5) xxx xxx xxx

Thus, from the bare reading of the Section, it transpires that the Court would form an opinion about the expediency to release the offender on probation for his good conduct. The offence u/s 326 for which the accused/respondent was convicted and sentenced is punishable for life or ten years, meaning thereby the sentence could extend to life, as such, the benefit of Probation of Offenders Act, could not be extended to an accused convicted of an offence punishable with imprisonment for life. Similar observations were made in the judgment delivered in State of Gujarat Vs. V.A. Chauhan, . Another judgment over which reliance could be placed is Jagdev Singh and Anr. v. State of Punjab 1973 Criminal Law General 1614, wherein their lordships observed as under:

Now both Sections 4 and 6 of the Act clearly provide that the benefit of these sections is not available to persons found guilty of an offence punishable with imprisonment for life. This Act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offences, by providing for dealing with them more leniently, with a view to their reformation, under Sections 3, 4 or 6 of the Act as the case may be. An offence punishable u/s 326 IPC or under Sections 326/34 IPC is indisputably punishable with imprisonment for life. The benefit of the Act on the plain language of Sections 4 and 6 is thus not available to the present appellants.

The other Provisions of law as provided under the Code of Criminal Procedure for extending benefit of probation is Section 360 of the Code which only could be extended to the persons more than twenty-one years of age and when they are convicted for the offences punishable with fine only or with imprisonment for a term not exceeding seven years and thus benefit under this Section could be extended to a person under twenty-one years of age or any woman when he/she is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against the offender; the Court while extending such benefit was also to have regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed.

As such, the provisions of Section 360 are also not attracted in the facts and circumstances of this case.

In the wake of aforesaid discussion, I am of the opinion that the judgment of sentence, as awarded by the first Appellate Court, is not correct and the same deserves to be interfered with only qua the observation made to the extent of sentence.

Resultantly, I accept this petition, set aside the impugned judgment to the extent of quantum of sentence and remit the case back to the Appellate Court to proceed in accordance with law.