Accused convicted U/S 394 of IPC can be released on probation of offender Act?

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Delivered on: 17.05.2017
CRL.A.539/2016

STATE
vs
LUCKY

CORAM:-HON’BLE MR JUSTICE ASHUTOSH KUMAR

1. The State has called in question the correctness of the order of
sentence passed by the Additional Sessions Judge-04 (Central), Tis
Hazari Courts, Delhi in Sessions Case No.7/2014 whereby the accused
person/respondent, though has been convicted under Section 394/411
read with section 34 of the IPC, but has been let off on probation of good
conduct, subject to his furnishing bond in the sum of Rs.25,000/- with
one surety of like amount before the Probation Officer to appear and
receive sentence when called upon during the period of probation and in
the meantime to keep peace and good behavior for a period of one year
from the date of furnishing of the bond. The respondent has also been
directed to pay compensation of Rs.3000/- each to both the victims of the
case.

2. The factual aspects of the case need not be gone into in detail as
conviction has not been challenged but only the order on sentence, which
has to be tested on the principles of law.

3. On 04.04.2012 Diksha, who was accompanying Vikram, both
being students of St.Stephens College, was made to deliver her mobile
telephone on point of a sharp object by the respondent and one Raju
Tiwari @ Raju. In the process, Vikram was hurt. This led to registration
of a case under Sections 392/394/411 and 34 of the IPC. Since coaccused
Raju Tiwari @ Raju was a juvenile, his case was sent to the
Juvenile Justice Board for appropriate orders. Only the respondent was
tried and convicted.

4. The mobile phone was recovered from the possession of the
respondent.

5. The Trial Court on examining 18 witnesses on behalf of the
prosecution, gave benefit of doubt to the respondent with respect to the
offence under Section 397 IPC but convicted him under Section 394/411
read with Section 34 of the IPC vide judgment dated 05.11.2015. On
19.11.2015, taking into account the fact that the respondent was a young
person aged about 22 years, had two brothers, one being handicapped and
one sister along with parents, the mother being paralyzed and also taking
into account the financial stringency, granted the benefit of probation to
the respondent. While doing so, the Court below has taken into account
the report of the Probation Officer and the fact that the respondent did not
have any previous involvement and had shown good and disciplined
behavior.

6. Learned counsel appearing for the appellant/State has challenged
the aforesaid grant of the benefit of probation to the respondent on the
ground that Sections 4 6 of the Probation of Offenders Act, 1958
specifically provide that the beneficent provisions could be invoked only
under the conditions enumerated in Section 4, viz. that the conviction is
for such offence which is not punishable with death or imprisonment for
life. It is submitted that Section 394 of the IPC entails punishment of
imprisonment for life or with rigorous imprisonment for a term which
may extend to 10 years and the accused shall also be liable to fine.

7. Section 394 of the IPC reads as hereunder:-
“394. Voluntarily causing hurt in committing
robbery.—If any person, in committing or in attempting
to commit robbery, voluntarily causes hurt, such person,
and any other person jointly concerned in committing or
attempting to commit such robbery, shall be punished
with [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine.”

8. Section 4 and Section 6 of the Probation of Offenders Act, 1958
read as follows:-

4. Power of 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:

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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) The court making a supervision order under subsection
(3) shall require the offender, before he is
released, to enter into a bond, with or without sureties, to
observe the conditions specified in such order and such
additional conditions with respect to residence,
abstention from intoxicants or any other matter as the
court may, having regard to the particular
circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of other
offences by the offender.
(5) The court making a supervision order under subsection
(3) shall explain to the offender the terms and
conditions of the order and shall forthwith furnish one
copy of the supervision order to each of the offenders, the
sureties, if any, and the probation officer concerned.
6. 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 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 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.”

9. In Arvind Kumar Sinha vs. Amulya Kumar Biswas: (1974) 4 SCC
222, the Supreme Court has held as:-

“The broad principle that punishment must be
proportioned to the offence is or ought to be of universal
application save where the statute bars the exercise of
judicial discretion either in awarding punishment or in
releasing an offender on probation in lieu of sentencing
him forthwith.”

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10. In Rattan Lal vs. State of Punjab: AIR 1965 SC 444, the Supreme
Court handed down the philosophy behind the grant of probation:-
“The Act is a milestone in the progress of the modern
liberal trend of reform in the field of penology. It is the
result of the recognition of the doctrine that the object of
criminal law is more to reform the individual offender
than to punish him. Broadly stated, the Act distinguishes
offenders below 21 years of age and those above that
age, and offenders who are guilty of having committed an
offence punishable with death or imprisonment for life
and those who are guilty of a lesser offence. While in the
case of offenders who are above the age of 21 years
absolute discretion is given to the court to release them
after admonition or on probation of good conduct,
subject to the conditions laid down in the appropriate
provisions of the Act, in the case of offenders below the
age of 21 years an injunction is issued to the court not to
sentence them 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
offenders, it is not desirable to deal with them Under
Sections 3 and 4 of the Act.”

11. It has been argued on behalf of the State that for application of
Sections 4 6 of the Probation of Offenders Act, 1958, the accused
should not have been held guilty of an offence punishable with death or
imprisonment for life. It matters not that the section gives the discretion
to the Court to impose a lesser punishment, in the event of no minimum
sentence being prescribed. The Probation of Offenders Act, 1961, it has
been argued, takes out of its ambit a specific class of offences, namely,
the offences which are punishable for death or imprisonment for life.

12. The respondent on the other hand contends that when no minimum
sentence has been prescribed under Section 394 IPC meaning thereby that
lesser punishment could be awarded, the beneficent provision of
Probation of Offenders Act, 1961 would be applicable.

13. What would control and affect the applicability of the Probation of
Offenders Act, 1961 would not be the maximum sentence prescribed for
the offence, but whether the Court has a discretion to award a lesser
sentence than the maximum, without there being any caveat with respect
to the minimum sentence which has to be awarded for the offence. Since
the Penal Code does not bar the exercise of judicial discretion in the
matter of award of sentence for the offence under Section 394 IPC,
Probation of Offenders Act, 1961 would be applicable.

14. Any Court while exercising jurisdiction under Sections 4 6 of
the Probation of Offenders Act, 1958 has to keep in view the nature of the
offence and the conditions incorporated under the Act. It is only if the
Court forms an opinion that it is expedient to release the convict on
probation for good conduct, regard being had to the circumstances of the
case, then only the benefit could be extended. The nature of offence is
definitely one of the circumstances. The Court has the discretion to
decide when and how it should form such an opinion. The word
“expedient” also has been explained by the Supreme Court in State of
Gujarat vs. Jamnadas G.Pabri: AIR 1974 SC 2233. In the aforesaid
judgment, it has been observed as hereunder:-

9. The word “expedient” had been thoughtfully employed
by Parliament in the Section so as to mean it as “apt and
suitable to the end in view”. In Black’s Law
Dictionary the word expedient is defined as “suitable and
appropriate for accomplishment of a specified object”
besides the other meaning referred to earlier. In State of
Gujarat v. Jamnadas G. Pabri a three-Judge Bench of
this Court has considered the word “expedient”. Learned
Judges have observed in para 21 thus:
“Again, the word ‘expedient’ used in this
provisions, has several shades of meaning. In one
dictionary sense, ‘expedient’ (adj.) means ‘apt and
suitable to the end in view’, ‘practical and
efficient’; ‘politic’; ‘profitable’; ‘advisable’, ‘fit,
proper and suitable to the circumstances of the
case’. In another shade, it means a device
‘characterised by mere utility rather than
principle, conducive to special advantage rather
than to what is universally right’ (see Webster’s
New International Dictionary).

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10. It was then held that the court must construe the said
word in keeping with the context and object of the
provision in its widest amplitude. Here the word
“expedient” is used in Section 4 of the PO Act in the
context of casting a duty on the court to take into account
“the circumstances of the case including the nature of the
offence…”. This means Section 4 can be resorted to when
the court considers the circumstances of the case,
particularly the nature of the offence, and the court forms
its opinion that it is suitable and appropriate for
accomplishing a specified object that the offender can be
released on probation of good conduct.”

15. Thus, merely because the maximum sentence of life could have
been awarded under Section 394 of the Indian Penal Code, it would be no
ground for not granting the benefit of Probation of Offenders Act to the
respondent. The Court has a discretion in matters of sentencing and the
sentencing process would hinge on the nature and circumstances of the
case.

16. In State of Himachal Pradesh vs. Dharam Pal: (2004) 9 SCC 681,
the accused was convicted under Section 376 read with Section 511 of the
IPC and was sentenced to undergo RI for three years and was directed to
pay a fine. In appeal, the High Court upheld the conviction but
considering the relationship and the age of the accused, applied Section 4
of the Probation of Offenders Act and directed for his release on
probation of good conduct. The Supreme Court in the aforesaid case,
though took into account that the offence charged was one under Section
376 but held that the Probation of Offenders Act is intended to reform the
person who can be reformed and would cease to be a nuisance in the
society. The Supreme Court was of the view that the discretion to
exercise the jurisdiction under the Act is hedged with a condition about
the nature of offence and the character of the offender. The order of the
High Court was, therefore, affirmed and upheld by the Supreme Court.
17. In Mohd.Monir Alam vs. State of Bihar: (2010) 12 SCC 26, the
Supreme Court, taking into account the professional qualification of the
petitioner which displayed his expertise in his specialty and portrayed his
association with prestigious organizations worldwide in the field of
strategic studies, conduct and attainments after his involvement in the
matter, held that his release on probation was justified. The petitioner in
that case was convicted under Section 304(II)/149 IPC and Section 323 of
the IPC.

18. Though the respondent has been convicted under Sections 394 and
411 of the IPC but considering the nature of the offence, the character of
the offender, the report of the Probationary Officer and the respondent
leading a disciplined life on the reformed path, this Court has not been
persuaded to differ with the order of sentence by the Trial Court.

19. As such, the appeal is dismissed but without costs.

ASHUTOSH KUMAR, J
MAY 17, 2017

 

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