State of H.P. vs Devender Singh

Surinder Singh, J.—Respondent was held guilty for the offence punishable under Sections 341 and 354 of the Indian Penal Code and sentenced to undergo imprisonment for a period of one month u/s 341 I.P.C. and six months u/s 354 I.P.C. Both the sentences were ordered to run concurrently.

Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the respondent filed an appeal (Cr. Appeal No. 21-N/10 of 2002) before the Court of Sessions. The learned Additional Sessions Judge, vide his detailed judgment passed on 16th June, 2003 upheld the conviction for both the offences, but modified the order of sentence by allowing the benefit of probation, relying upon the judgment of this Court passed in Sharnu and Anr. v. Sate of Himachal Pradesh 1998 (1) C.L.R. 208.

The State did not feel satisfied with it, as such, filed the present appeal u/s 11(2) of the Probation of Offenders Act, 1958, in short ''the Act''. The only point taken and argued by Shri A.K. Bansal, learned Additional Advocate General is that the respondent was more than 21 years of age at the time of passing the sentence by the learned trial Court and the learned Additional Sessions Judge wrongly granted the benefit of probation to him.

Contra, Ms. Kanta Thakur, learned Counsel for the respondent supported the impugned judgment passed by the learned Additional Sessions Judge.

I have considered the rival contentions of the parties and have gone through the record of the case.

The alleged offence was committed on 27.12.1999. The respondent was apprehended and bailed out. In the certificate regarding ''identity of the accused -respondent'', prepared by the Investigating Officer on 29.12.1999, the respondent is shown to be 18 years of age. Further at the time of framing the charge in the year 2001, his age has been recorded as 20 years. Further while his statement u/s 313 Cr.P.C., he gave his age as 21 years.

Learned Counsel for the respondent has placed on record ''the School Leaving Certificate'' of the respondent, wherein the date of birth of the respondent is shown to be 20th July, 1980 and on the day of commission of the alleged offence, in all circumstances, the respondent turned out to be less than 21 years of age on the relevant date.

Section 6 of the Act reads as under:

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 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 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.

The above provisions lays down an injunction, as distinct from a discretion under Sections 3 or 4 of the Act, not to impose a sentence of imprisonment on a person who is under 21 years of 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, the Court is satisfied that it would not be desirable to deal with him under Sections 3 or 4 of the Act. This inhibition on the power of the Court to impose a sentence of imprisonment is not only applicable to trial Court but is also applicable at the appellant stage or revision as the case may be.

In Dilip Umare Vs. State of Maharashtra, while considering the matter in a case of conviction with respect to the convict for the offence u/s 354 of the Indian Penal Code in criminal revision petition against the concurrent findings of conviction and sentence of the Court below, the High Court of Bombay considered the entire facts and circumstances of the case, allowed the benefit of probation to the convict who was found to be less than 21 years of age.

In the instant case, there is no criminal history attributable to the respondent, which can disentitle him for such a benefit and also looking at the fact that from the date to releasing him on probation i.e. 8.7.2003 nothing has been brought to the notice that the respondent has committed breach of the bond executed by him. Therefore, in my opinion, no interference is called for, hence, the appeal is dismissed.

The respondent is discharged of the bail bonds entered upon by him at any stage during the proceedings of the case.

The matter stands disposed of.

Send down the records.