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1967 DIGILAW 242 (ALL)

Bhoodev v. Jagdish Prasad

1967-07-26

GUPTA, KIRTY, UNIYAL

body1967
JUDGMENT Gupta, J. - We have before us two criminal revisions Nos. 1614 of 1963 and 593 of 1964. 2. In Cr. Rev. No. 1614 of 1963 the sole opposite party Jagdish Prasad was convicted of the offences punishable Under Sections 465, 467, 468 and 471 of the IPC by the I Asstt. Sessions Judge, Aligarh. The learned Judge ordered that Jagdish Prasad be put on probation for a period of two years u/s 4 of the UP First Offenders' Probation Act (hereinafter referred to as the Act). The directions as to what Jagdish Prasad was required to do to avail himself of the benefit u/s 4 of the Act need not be detailed herein. The complainant Bhoodeo filed an application in revision in this Court raising the contention, inter alia, that Jagdish Prasad was not entitled to the benefit of the provisions contained in Section 4 of the Act. The revision came up for hearing by brother Khare who referred to certain authorities of this Court and having found a divergence of opinion on the question, directed that the papers be laid before the Hon'ble the Chief Justice for constituting a larger Bench to decide the aforesaid question. The revision then came up before a Division Bench which, by order dated 7-12-1965, directed the record to be laid before the Hon'ble the Chief Justice for constituting a Full Bench. By the aforesaid order it was also directed that this revision be connected with the other revision which is before us, viz., Cr. Rev. No. 593 of 1964. 3. Cr. Rev. No. 593 of 1964 arises out of a judgment of the learned Sessions Judge, Etah, thereby the sole Respondent Bhumiraj, aged 12 years, was, on a plea of guilty, convicted u/s 376 of the IPC. The learned Sessions Judge gave to Bhumiraj the benefit of Section 4 of the Act with certain directions. The State of UP thereupon filed this revision which was referred by brother D.S. Mathur to a larger Bench which, for reasons similar to those in Cr. Rev. No. 1614 of 1963, directed the papers to be laid before the Hon'ble the Chief Justice for the constitution of a still larger Bench. This is how Cr. Rev. No. 593 of 1964 is also before us. 4. Rev. No. 1614 of 1963, directed the papers to be laid before the Hon'ble the Chief Justice for the constitution of a still larger Bench. This is how Cr. Rev. No. 593 of 1964 is also before us. 4. The common question that has arisen for consideration by us is as to whether Respondents Jagdish Prasad and Bhumiraj are entitled to the benefit of Section 4 of the Act. Having heard learned Counsels and having considered the relevant provisions of the Act and the cases cited at the Bar, we are of the opinion that the answer to the question must be in the negative 5. Section 4 of the Act need not be reproduced in its entirety. For the purposes of deciding the controversy before us it is sufficient to reproduce Clause (1) of Section 4, excluding the provisos, which runs as follows: When any person 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, antecedent or physical or mental condition 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 meantime to keep the peace and be of good behaviour. The only question is as to what was intended by the Legislature by the use of the expression "when any person is convicted of an offence not punishable with death or imprisonment for life". 6. There are several reported decisions bearing on the questions, but before referring to the decisions of this Court a brief reference may be made to certain decisions of the other High Courts. 6. There are several reported decisions bearing on the questions, but before referring to the decisions of this Court a brief reference may be made to certain decisions of the other High Courts. In the case of AIR 1932 130 (Nagpur) decided by the Nagpur High Court it was held that the provision contained in Section 497 of the Code of Criminal Procedure about release of a person on bail could not be applied to a case where reasonable grounds appeared for believing that that person had been guilty of an offence punishable with death or transportation for life. In the case of Lakhi Sahu (Kanu) v. Emperor AIR 1932 Gal 487 decided by a Division Bench of the Calcutta High Court a similar question arose in connection with the interpretation of Section 29-B of the Code of Criminal Procedure. The aforesaid provision laid down that any offence other than punishable with death or transportation for life committed by any person who at the date when he appeared or was brought before the court was under the age of 15 years may be tried by a District Magistrate or a Chief Presidency Magistrate, etc. It was held that since an offence u/s 304 IPC was punishable with transportation for life a person charged with that offence could not be tried by the authorities mentioned in Section 29B of the Code of Criminal Procedure. In the case of In Re: Ezhuvan Velappan, AIR 1943 Mad 681 decided by the Madras High Court provision contained in Section 562 of the Code of Criminal Procedure relating to first "offenders came up for consideration. It provided that "when any person...is convicted of an offence punishable with imprisonment for not more than seven years...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...." It was held that since the offence u/s 326 IPC was one punishable with transportation for life or with imprisonment of either description for a period of ten years the aforesaid provision could not be applied. The same view was taken by the Madras High Court in the case of Public Prosecutor Vs. Pingali Mallikarjana Kota Paneswara Rao, AIR 1946 Mad 173 . The same view was taken by the Madras High Court in the case of Public Prosecutor Vs. Pingali Mallikarjana Kota Paneswara Rao, AIR 1946 Mad 173 . 173 in which the conviction was u/s 409 IPC A Division Bench of the Rajasthan High Court held in the case of Sarkar Vs. Jalamsingh, AIR 1950 Raj 28 that in the case of an offence u/s 307 IPC the provisions of Section 562 of the Code of Criminal Procedure were not applicable inasmuch as the person found guilty u/s 307 IPC was liable to be sentenced to rigorous imprisonment for life. A Division Bench of the Madhya Pradesh High Court in the case of Chetti Vs. State of Madhya Pradesh, AIR 1959 MP 291 was called upon to deal with a similar question in connection with provisions contained in Section 4(b) of the CP and Berar Probation of Offenders' Act (I of 1936) which provided for release on probation. The exact language of the provision has not been quoted but the decision, as reported, makes it clear that an exception was made as regards persons convicted of an offence punishable either with death or with imprisonment for life in the matter of granting the benefit of release on probation provided by Section (4)(b) of the aforesaid Act. The learned Judges observed as follows: The phrase 'not punishable with death or imprisonment for life' ought to be interpreted in its ordinary disjunctive sense. Its scope cannot be permitted to be expanded by giving a strained meaning, by reading it conjunctively. If that were permitted, the only offences to be excluded from the benefit of the provision of probation would be Sections 121, 302, 305, 307 (Part II) and 396, while in all grave and heinous offences punishable with imprisonment for life, the section could be availed of by an accused. The intention of the Legislature in enacting the provisions of probation was to deal with first offenders guilty of not (non) serious offences leniently. The learned Judges later on observed that in fact there was no scope for interpretation, as the wording was quite clear and there was no ambiguity. 7. We now proceed to refer to the decisions of this Court. The learned Judges later on observed that in fact there was no scope for interpretation, as the wording was quite clear and there was no ambiguity. 7. We now proceed to refer to the decisions of this Court. In the case of Mushtaq v. State 1954 AWR 454 it was held by a Division Bench of this Court that an offence u/s 376 IPC being punishable with transportation for life, the benefit of the First Offenders' Probation Act could not be extended to the accused. What had happened was that one Kalwa, aged 14 years, who had been found guilty of an offence u/s 376 IPC, was given the benefit of Section 4 of the Act by the learned Sessions Judge. On reading the Sessions Court judgment a learned Judge of this Court issued notice to Kalwa to show cause why the application of the First Offenders' Probation Act by the Sessions Judge should not be set aside. As observed earlier, the Division Bench held that the application by the Sessions Judge of the First Offenders' Probation Act was certainly erroneous, because Section 4 thereof did not apply to a person convicted of an offence punishable with death or imprisonment for life. It was laid down that an offence u/s 376 IPC was one punishable with imprisonment for life and the benefit of the First Offenders' Probation Act could not, therefore, have been extended to Kalwa. The next reported case is a decision of a Division Bench of this Court in the case of State v. Sheo Shanker 1955 AWR 607 . In this case the question arose with reference to the offence u/s 409 IPC. The judgment of the Division Bench was given by Desai, J. (as he then was). Arguments similar to those raised before us at the hearing appear to have been raised before the Division Bench which decided the above case and an elaborate consideration of the matter is to bs found incorporated in the judgment given by Desai, J. Suffice it to say that the contention, that the benefit of Section 4 of the Act could be denied only in those cases where death and transportation for life were the only two alternative punishments provided for, was negatived as erroneous. We are in full agreement with the observations made in the course of this decision. We are in full agreement with the observations made in the course of this decision. The key to the controversy, in our opinion, is furnished by the expression "not punishable with death or imprisonment for life". It appears to us to be perfectly plain that if in respect of the offence of which a person is convicted the court is authorised by law to punish that person with death or imprisonment for life, the benefit u/s 4 of the Act cannot be granted to such a person. If, on the other hand, the court has not been authorised to punish the person concerned with death or imprisonment for life, the benefit u/s 4 of the Act can be granted to that person subject to the other conditions laid down in the provisions contained in Section 4 of the Act. It is the ability of the Court in the matter of the extent and nature of the punishment a court is authorised to impose which answer the question whether the benefits provided by Section 4 of the Act can or cannot be granted to such a Court. The actual punishment which case is irrelevant may impose in a certain recognised by law the court has been granted wide discretion which is to be exercised in accordance with the facts and circumstances of each case. The exercise of that discretion is, however, trammelled by the laying down of a maximum penalty and in many cases, a minimum penalty. It is, however, impossible to accept that what is relevant for deciding whether the provisions of Section 4 of the Act apply of not the court must look into the minimum penalty provided by the law and not the maximum penalty. If a court has been invested with the power in respect of an offence to inflict upon the person found guilty there of the punishment of death or imprisonment for life, it appears to us obvious that the provisions of Section 4 of the Act cannot be applied because it cannot, in that case be said that the person convicted of the offence cannot be punished with death or imprisonment for life. The next reported decision of this Court is also a decision of a Division Bench viz., State v. Ram Khilari 1960 AWR 135. The next reported decision of this Court is also a decision of a Division Bench viz., State v. Ram Khilari 1960 AWR 135. In this case the Ration which arose for consideration related to the applicability of Section 3 of the Act with reference to an offence u/s 457 of the IPC. Section 3 of the Act provided, inter alia, that in the case of a person being found guilty of an offence punishable with not more than two year imprisonment the court may, having regard to certain matters, instead of sentencing him to any punishment, release him after due admonition. When an accused is convicted of an offence of committing lurking house trespass by night, or house breaking by night, with the intention of committing theft punishable u/s 457 IPC the term of imprisonment provided therein can extend to 14 years. The learned Magistrate who had tried the case, whilst finding the accused guilty of the (sic) of lurking house trespass by (sic) the intention of committing (sic) the accused the benefit Act. The (sic) contained in (sic) on a refer, for came un the Addl. Distt. (sic) and notice was issued (sic) this Court to the accused who had been found guilty, to show cause why an appropriate sentence should not be passed on him Roy, J. delivering the judgment of the Division Bench observed that after carefully (sic) the provisions of Section 3 of the Act, they were of the opinion that the learned Magistrate was clearly wrong in applying the provisions of Section 3 to the case. It was observed that cases of similar nature had come up before the Court which had the occasion to draw the attention of the Magistrates to the error committed by them in the application of Section 3 of the Act and reference was also made to an earlier decision of this Court in the case of Ramphal and Anr. v. Happu and Ors. 1955 ALJ 327 where it was laid down that the benefit of Section 3 of the Act was applicable only to those cases where the accused was found guilty of an offence punishable with not more than two years' imprisonment and the said benefit could not be given to a person convicted of an offence u/s 411 of the IPC which was punishable with imprisonment upto three years. 8. 8. It is, therefore, clear that there was uniform state of authority bearing on the question before us and on the principles laid down by those authorities the Respondents in these two revisions should not have been granted the benefit of Section 4 of the Act. 9. Reference may now be made to the decision of a Division Bench in the case of State v. Pearey alias Ghhanga 1962 AWR 561. In this case the question of the applicability of Section 4 of the Act was considered with reference to a person who had been found guilty of the offence u/s 376 IPC. The learned Sessions Judge who had tried and convicted that person had given him the benefit of Section 4 whereafter a learned single Judge of this Court had directed notice to issue to that person to show cause why the order of the learned Sessions Judge giving him benefit under the Act be not set aside and proper sentence awarded. The judgment of the Division Bench was delivered by Gyanendra Kumar who, after with (sic) facts of the case, desalted was (sic) whether the accused Section 4 of the Act, the benefit of decision of the Division Bench of the Court in the case of Mushtaq v. this (supra), which was the only decision which appears to have been cited before the Division Bench and has been referred to by the Division Bench, it was observed that "the test for excluding the application of Section 4 of the Act is that the offence complained of should be punishable with death or imprisonment for life and nothing less than it even in the alternative." It was further observed that the criterion to determine the applicability of Section 4 of the UP First Offenders' Probation Act appeared to be the minimum penalty prescribed in a particular section and not the maximum penalty. It was lastly observed that in the case of Mushtaq v. State (supra) the learned Judges "were really concerned with the interpretation and scope of Sections 17, 29 and 75 of the UP Children's Act and the observations of their Lordships regarding the applicability of the provisions of Section 4 of the UP First Offenders' Probation Act were in the nature of obiter dicta." 10. In the first instance it appears to us that if, apart from the decision of the Division Bench in Mushtaq v. State (supra), the latter Division Bench decisions of this Court in the cases of State v. Sheo Shanker (supra) and State v. Ram Khilari (supra) had been brought to the notice of the learned Judges, the decision of the Division Bench in State v. Pearey alias Chhanga (supra) would have been in line with the previous decisions referred to earlier in this judgment. 11. Secondly, with all respect to what has been observed in the decision of the Division Bench in the case of State v. Pearey alias Chhanga (supra), we find ourselves wholly unable to agree with the view that the test for excluding the application of Section 4 of the Act was that the offence complained of should be punishable with death or imprisonment for life and nothing less than it even in the alternative and that the criterion to determine the applicability of Section 4 of the Act was the minimum penalty prescribed and not the maximum penalty. We would also like to observe that though it is true that in the decision of the Division Bench in Mushtaq v. State (supra) there is no elaborate discussion of the question relating to interpretation of the provisions contained in Section 4 of the Act, the observations of the learned Judges who decided that case regarding the applicability of be (sic) of Section 4 of the Act cannot be treated as being in the nature of obiter dicta. 12. We would (sic) to refer again to the decision of the Division Bench of the Madhya Pradesh High Court in the case of Chetti v. State of Madhya Pradesh (Supra) among the decisions of the other High Courts referred to earlier in this judgment. We are in full agreement with the view recorded in that case that the phrase 'not punishable with death or imprisonment for life' must be interpreted in its ordinary disjunctive sense. As observed by the learned Judges in that case, we find it altogether unacceptable to attribute to the Legislature the intention of including the benefit of a first offender to all offences except offences falling only within three or four provisions in the IPC, viz., Sections 121, 302 and 303 IPC. As observed by the learned Judges in that case, we find it altogether unacceptable to attribute to the Legislature the intention of including the benefit of a first offender to all offences except offences falling only within three or four provisions in the IPC, viz., Sections 121, 302 and 303 IPC. As regards the decisions recorded by this Court, reference may be made particularly to the decision of the Division Bench in the case of State v. Sheo Shanker (supra). 13. In our opinion, the language of the statute is quite clear. There is no ambiguity, nor any scope for interpretation and it must be held that the view taken by the Division Bench in the case of State v. Pearey alias Chhanga (supra), that the criterion to determine the applicability of Section 4 of the Act was the minimum penalty and not the maximum penalty prescribed, is incorrect. We are in full agreement with the rule laid down by the Division Bench in the case of State v. Sheo Shanker (supra) that the benefit of Section 4 of the Act cannot be extended to a person who had been found guilty of an offence for which the punishment of death or imprisonment for life could be legally on him. 14. The result, therefore, is that, in our opinion, both these revisions must be allowed, the order granting benefit to the opposite parties u/s 4 of the UP First Offenders' Probation Act must be set aside and the two opposite parties Jagdish Prasad and Bhumiraj must be sentenced to punishment. Uniyal, J. 15. I concur with the opinion of my learned brothers Gupta and Kirty that the provisions of Section 4 of the UP First Offenders' Probation act are not applicable to offences punishable with death or imprisonment or life. In my opinion the test for the applicability of Section 4 is whether the offence with which the accused is charged is punishable with death or imprisonment for life. In such a case it is not a relevant consideration that the punishment imposed on the accused was not imprisonment for life but the alternative punishment prescribed under the law. Indeed, such a construction is ruled out by the phraseology of Section 4. It does not speak of the actual punishment inflicted on the accused person to whom the benefit of Section 4 may be extended. Indeed, such a construction is ruled out by the phraseology of Section 4. It does not speak of the actual punishment inflicted on the accused person to whom the benefit of Section 4 may be extended. The true intendment of that section is that certain class of offences which are punishable with death or imprisonment for life shall be excluded from the operation of that section. I have, therefore, no hesitation in holding that the view expressed in the following cases: Mustaq v. State (supra), Ramphal and Anr. v. Happu (supra), State v. Sheo Shanker (supra) and State v. Ram Khilari (supra) is in consonance with the provisions contained in Section 4. 16. I was a party to the decision in State v. Pyare alias Chhanga (supra) in which a contrary view was taken. If the (sic) of that bench had been invited to the case of State v. Ram Khilari (supra) the decision in Pyare's case (supra) Would not have been such as it was. 17. These revisions must, therefore, succeed and the order extending the benefit of Section 4 to the accused persons must be set aside and the accused punished in accordance with law. By the Court 18. We allow these revisions and set aside the order of the learned Assistant Sessions Judge, Aligarh giving the benefit of S, 4 of the UP First Offenders' Probation Act to the accused Jagdish Prasad and Bhumiraj. The conviction of Jag lish Prasad Under Sections 455, 467, 468 and 471 IPC is upheld and he is sentenced to two (2) years, RI on each count; the sentences, to run concurrently. We also uphold the conviction of Bhumiraj, aged 12 years, u/s 376 IPC but considering the tender age of the accused, we are of opinion that a sentence of 6 months' RI would meet the ends of justice. The accused Bhumiraj being a mere boy of 12 years, we recommend that he may be detained in Juvenile Jail at Bareilly or some other place where similar facilities are available. The opposite parties shall be taken into custody and sent the jail to serve out the sentences awarded to them.