State v. Naguesh G. Shet Govenkar — 1969 DIGILAW 57 (BOM)

ORDER This is an appeal under Section 417(1) of the Code of Criminal Procedure directed against the judgement passed by the learned Sessions Judge, whereby he acquitted respondents Nos. (3) to (7) of the offence with which they were charged under Section 395 of the Penal Code. The respondents Nos. (1) and (2) were convicted by him under Section 392 of the Penal Code. They were, however, released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958. The State felt aggrieved by this action and also by the decision directing acquittal of the respondents Nos. (3) to (7). A revision petition under Section 439 of the Code of Criminal Procedure accordingly is filed by the State, objecting to the order releasing respondents Nos. (1) and (2) on probation of good conduct under the Probation of Offenders Act, 1958. 2. The prosecution case, briefly stated, is that on 14th June, 1967 at about 6.30 a.m. respondents Nos. (1) to (7) stopped the truck carrying 60 gallons of liquor for distribution to various persons. The truck was prevented from proceeding in the direction intended and liquor was removed from the truck and kept in the balcony of the house of a washerman residing nearby. The Police were informed by complainant Atmaram Revodker about this illegal action on the part of these respondents. The Police after necessary investigation challaned them. They were charged by the learned Sessions Judge, Panjim, under Section 395 of the Penal Code. (Dacoity). 3. I shall first consider the appeal filed by the State against acquittal of respondents Nos. (3) to (7). It is conceded by learned Government Pleader at the Bar that on the evidence led by the prosecution the charge was not established against them either under Section 395 or Section 392. I have carefully gone through the record and I agree with him that as far as these respondents are concerned the ingredients of the offences under Sections 392 and 395 are not proved. It is extremely doubtful whether they participated in the crime. The learned Sessions Judge carefully considered the prosecution evidence and his conclusion that they are not guilty is supported by evidence. The evidence on identity of these accused is unconvincing, apart from the fact that it is vague. It is extremely doubtful whether they participated in the crime. The learned Sessions Judge carefully considered the prosecution evidence and his conclusion that they are not guilty is supported by evidence. The evidence on identity of these accused is unconvincing, apart from the fact that it is vague. Section 390 of the Penal Code states that theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. It was the prosecution case in the Sessions Court that when these respondents prevented the truck carrying liquor from proceeding in the direction in which it wanted to proceed there was wrongful restraint to the complainant and some other occupants who were in the truck at the time of the incident. It is in evidence that the complainant and other occupants were not prevented from contacting the members of the Panchayat or the Police. What is 'wrongful restraint' is defined in Section 339 of the Penal Code. Under that section, "whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person". The admitted position is that the complainant and others were not obstructed from proceeding in any direction in which they wanted to proceed and, therefore, there was no wrongful restraint within the meaning of this section, apart from the fact that participation of these respondents as stated already is not proved. The word "person" in this section and also in Section 390, where theft is 'robbery', would not seem to include obstruction of a truck when its occupants are not obstructed. This word is to be understood in its ordinary sense. There is a presumption of innocence in favour of these respondents and this presumption is reinforced by an order of acquittal. The appeal fails and is accordingly rejected. 4. There remains the case of respondents Nos. (1) and (2) to be considered. This word is to be understood in its ordinary sense. There is a presumption of innocence in favour of these respondents and this presumption is reinforced by an order of acquittal. The appeal fails and is accordingly rejected. 4. There remains the case of respondents Nos. (1) and (2) to be considered. The learned Government Pleader submits that the learned Sessions Judge should have called for the report of the probation officer as required by Sub-Section (2) of Section 4 of the Probation of Offenders Act, 1958 before releasing them on probation of good conduct. It is not his contention that the prosecution established the charge against them under S.395 of the Penal Code. He concedes fairly that in their case also this charge is not pressed. Mr. Y.H. Kadam, learned counsel appearing for these respondents and the respondents acquitted, submits that it was not obligatory on the part of the learned Sessions Judge to have called for the report of the probation officer before releasing the respondents Nos. (1) and (2) on probation of good conduct. He has not been able to support this submission by any reported decision. Be that as it may, I would discuss the scheme of the Probation of Offenders Act. 1958 (hereinafter referred to as 'the Act') and endeavour to show that it was obligatory on the part of the learned Sessions Judge to have called for the report of the probation officer before releasing these respondents on probation of good conduct. 5. As will appear from its preamble, the Act was enacted to provide for the release of offenders on probation or after due admonition and for matters connected therewith. Section 2 is a definition provision on usual lines. Clause (b) defines "probation officer" as meaning an officer appointed to be a probation officer or recognized as such under Section 13. Section 3 contemplates release, after due admonition, of any person found guilty of having committed the offences specified thereunder. Sub-Section (1) of Section 4 envisages release on probation of good conduct, of any person found guilty of having committed an offence not punishable with death or imprisonment for life. Sub-Section (2) of Section 4 provides that 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. Sub-Section (2) of Section 4 provides that 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. Sub-Section (1) of Section 6 imposes restrictions on imprisonment of offenders under twenty-one years of age. Under this Sub-Section, 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 he 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. Sub-Section (2) of this section lays down that for the purposes 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. Section 8 speaks of variation of conditions of probation. Under that provision if, on the application of the probation officer, any court which passes an order under Section 4 in respect of an offender is of opinion that in the interests of the offender and the public it is expedient or necessary to vary the conditions of any bond entered into by an offender, it may, at any time during the period when the bond is effective, vary the bond by extending or diminishing the duration thereof so, however, that it shall not exceed three years from the date of original order or by altering the conditions thereof or by inserting additional conditions therein. The proviso says that no such variation shall be made without giving the offender and the surety an opportunity of being heard. The proviso conforms to the principles of natural justice. The proviso says that no such variation shall be made without giving the offender and the surety an opportunity of being heard. The proviso conforms to the principles of natural justice. Sub-Section (3) provides that notwithstanding anything hereinbefore contained, the court which passes an order under Section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him. Sub-Section (1) of Section 9 relates to procedure in case of offender failing to observe conditions of bond. It provides that if the court which passes an order under Section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him. it may issue a warrant for his arrest. Section 13 contemplates appointment of a probation officer by the State Government. Section 14 speaks of duties of probation officers. Section 15 regards probation officer as a public servant by employing a deeming fiction. The other sections are not relevant for the present purpose. As will appear from Sub-Section (2) of Sections 4 and 6 and Sections 8 and 9, the probation officer plays an important role under the scheme of the Act. 6. In 'Ramji Missar v. State of Bihar', AIR 1963 SC 1088 (1089), their Lordships of the Supreme Court explained the object of the Act in the following words :- "The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime." It was also stated by their Lordships that this Act is a beneficial statute and, therefore, it is to be given wider interpretation. This decision is not directly to the point, but the above observations on the object of the Act, with respect, are apposite. This decision is not directly to the point, but the above observations on the object of the Act, with respect, are apposite. In 'Rattan Lal v. State of Punjab', AIR 1965 SC 444 , the scheme of the Act was considered in the context of Sections 3, 4 and 11 of the Act and it was held in that case that the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under Section 6(1) of the Act by the Court. The following observations of the Supreme Court are apposite :- "A court cannot impose a sentence of imprisonment on a person under 21 years of age found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life 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 S.3 or S.4 of the Act. For the purpose of satisfying itself in regard to the said action, under Sub-S. (2) of S.6 of the Act the Court shall call for a report from the probation officer and consider the report, if any, and any other information relating to the character and physical and mental condition of the offender. After considering the said material the Court shall satisfy itself whether it is desirable to deal with the offender under S.3 or S.4 of the Act. If it is not satisfied that the offender should be dealt with under either of the said two sections, it can pass the sentence of imprisonment on the offender after recording the reasons for doing so. It is suggested that the expression "if any" in Sub-S. (2) of S.6 indicates that it is open to the Court to call for a report or not; but the word "shall" makes it a mandatory condition and the expression "if any" can in the context only cover a case where notwithstanding such requisition the Probation Officer for one reason or other has not submitted a report. Briefly stated the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under S.6(1) of the Act by the Court." It was also observed by the Supreme Court that :- "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." In 'Raghunath v. Mrs. T.P. Faria', AIR 1967 Goa 95 , this Court also had the occasion to consider the scheme of Sections 3, 4 and 11 of the Act and, in that connection, the following observations are not out of place :- "The Probation of Offenders Act, 1958, was enacted by Parliament to provide for the release of offenders on probation after due admonition and for matters connected therewith. The Act shifts emphasis from deterrence to reformation and from the crime to the criminal in accordance with the modern outlook on punishment. The emphasis is not on the individualization of acts but on the individualization of human beings. Reformation and rehabilitation of the offenders are the key notes of the Act." 7. The criminal law is concerned with wrongs and not with rights. It regards not the person but society. It results not in a benefit to the party injured but in its satisfaction to the community. The scheme of the Act, however, is an exception where the criminal law regards the offenders governed by the scheme of the Act and also society and not only society. It will appear from the decision of their Lordships of the Supreme Court in Ratan Lal's case, AIR 1965 S.C. 444 , that the requirement of Sub-Section (2) of Section 6 is mandatory; in fact, the calling for a report from the probation officer was regarded as a condition precedent for the exercise of the jurisdiction under Sub-Section (1) of Section 6. As, stated earlier, the probation officer plays an important role under the scheme of the Act. A comparison of the phraseology used in Sub-Section (2) of Sections 4 and 6 would seem to show that the requirement of Sub-Section (2) of Section 4 also is mandatory, or imperative. As, stated earlier, the probation officer plays an important role under the scheme of the Act. A comparison of the phraseology used in Sub-Section (2) of Sections 4 and 6 would seem to show that the requirement of Sub-Section (2) of Section 4 also is mandatory, or imperative. There is an injunction under this Sub-Section that 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. There is a duty imposed on the Court to which relates to a benefit in favour of the offenders governed by Section 4, and Sub-Section (2) thereof is to be taken as requiring and not authorizing the performance of this duty, which is not intended to be at the discretion of the Court in so far as consideration of the report is concerned. It would involve injustice or inconvenience to offenders governed by Sub-Section (1) of Section 4 if Sub-Section (2) of Section 4 is regarded as directory and not mandatory. Mr. Kadam submits that the words "if any" in Sub-Section (2) of Section 4 seem to show that it is not mandatory in its nature. This submission is without force. The observations of the Supreme Court in regard to the expression "if any" in the context of Sub-Section (2) of Section 6 will also seem to apply to the passing of the order under Sub-Section (2) of Section 4. The legislative command, in effect and substance, is that the Court shall take into consideration the report of the probation officer. For my part, as I see this matter, the word "shall" used in this Sub-Section is a word of command which is to be taken as mandatory, and not directory. It is true that the word "shall" in a statute does not necessarily mean that in every case it will have mandatory effect and not directory. Its meaning will vary in colour and content according to its context. In 'Jagan Nath v. Jaswant Singh', AIR 1954 S.C. 210 (214), the provisions of Section 82 of the Representation of the People Act, 1951 relating to impleading of parties, were regarded as directory in spite of the word "shall" used therein. This was on the analogy of Order XXXIV, Rule 1, C.P.C. This section was not regarded as mandatory because non-compliance was not made penal. This was on the analogy of Order XXXIV, Rule 1, C.P.C. This section was not regarded as mandatory because non-compliance was not made penal. In 'Hari Vishnu v. Ahmad Ishaque', AIR 1955 SC 233 (245), relying on a famous case 'Julius v. Bishop of Oxford', (1880) 5 AC 214, where various rules were laid down for determining when a statute might be construed as mandatory and when as directory, the Supreme Court concluded that Rule 47(1)(a) to (c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules (1951) relating to ballot papers was mandatory. The word "shall" in this rule was not construed as meaning "may". In 'State of M.P. v. Azad Bharat Finance Co.', AIR 1967 SC 276 the provisions of Section 11(d) of the Opium Act, 1878 were regarded by the Supreme Court as directory or permissible and not mandatory or obligatory, notwithstanding the use of the word "shall". In 'Jagdish Gandhi v. Legislative Council, U.P.', AIR 1966 All 291 (299) the learned Judges of the Allahabad High Court observed that the provision regarding the specification of time in Rule 75(1)(b) of the U.P. Legislative Council Rules of Procedure and Conduct of Business was directory in spite of the use of the word "shall" therein. 8. As will appear from Sub-Section (2) of Section 4, the consideration of the report of the probation officer is of the essence of the thing required. It is a matter of substance and not a matter of mere form. The probation officer is in a better position to know the character and antecedents of the offenders and his report is to be considered before making an order under Sub-Section (1) of Section 4. Mr. S. Tamba cites 'State of Mysore v. Saib Gunda'. 1964(1) Cr. L.J. 460 (Mys), in support of his contention that the requirement of Sub-Section (2) of Section 4 is mandatory. It was held in this case that in the absence of a report from the probation officer under Sub-Section (1) of Section 4, the Magistrate had no authority to release the accused on probation of good conduct. This decision does not discuss the scheme of the Act in detail but the obiter dicta is relevant for our purpose. It was held in this case that in the absence of a report from the probation officer under Sub-Section (1) of Section 4, the Magistrate had no authority to release the accused on probation of good conduct. This decision does not discuss the scheme of the Act in detail but the obiter dicta is relevant for our purpose. This opinion was really not necessary to the decision given, for Section 4 of the Act under which the learned Magistrate convicted the accused and thereafter released them on probation of good conduct was inapplicable in terms. The conviction of the accused was for the offence punishable under Section 326 of the Penal Code. The maximum punishment thereunder being imprisonment for life this section was not attracted. 9. It is common ground that the probation officer was not asked to give his report before directing release of respondents Nos. (1) and (2) on probation of good conduct under Section 4 of the Act. It is thus clear that there was no compliance with the mandatory provision under Sub-Section (2) of Section 4. It appears consideration of report, in terms of Sub-Section (2) of Section 4, is a condition precedent to the legality or validity of the order passed under Sub-Section (1) of Section 4. Nullification of this order is a normal consequence of disobedience of the mandatory requirement in Sub-Section (2). In this view of the matter the order passed by the learned Sessions Judge is set aside and the revision petition filed on behalf of the State allowed. The learned Sessions Judge is directed to take into consideration the report of the probation officer before deciding the case on its merits. Petition allowed.