NANDAKUMAR v. STATE OF KERALA — 1985 DIGILAW 209 (KER)

Judgment :- 1. The Judicial First Class Magistrate (Special Court). Ernakulam. convicted the revision petitioner in C. C. 6 of 1983 for offences punishable under S.468. 471 and 420 of the Indian Penal Code. He was sentenced under each count to undergo rigorous imprisonment for one year. The sentences were allowed to be undergone concurrently. In Crl. A. No. 110 of 1983. the IVth Addl. Sessions Judge (CBI/SPE). Ernakulam. confirmed the convictions. but reduced the sentence to simple imprisonment for six months. Crl. R. P. 521 of 1983 was filed by the accused. Crl. R. C. 3 of 1984 is a suo mote revision. against the reduction of sentence. 2. During 1978-'80. the revision petitioner was a Pre-degree student. He wrote for the examination in 1980 and passed in all subjects. except English. His second attempt; for English also failed. Therefore he borrowed the Pre-degree certificate of pw. 24. another student. who is his own friend. pw. 24 did not pursue his studies. Revision petitioner made alterations in the certificate of pw. 24 so as to make it appear that it was his own certificate. Other necessary corrections in the marks were also made. He used the certificate for getting admission in a parallel college For that purpose he produced it before pw. 25. the Principal. on 19-9-1981 and got admission. Charge under S.468 of the Indian Penal Code is on the allegation that he made alterations in the Pre-degree certificate and thereby committed the offence of forgery. He produced the certificate before pw. 25 and used it as genuine. Thereby he committed an offence punishable under S.471 of the Indian Penal Code. In the same act he committed the offence punishable under S.420 of the Indian Penal Code by making false representations to pw. 25 through the forged documents that he passed the Pre-degree examination and thereby obtained admission to B. Com Degree Course by practising deception on pw. 25. The first charge is independent and second and 3rd charges go together. 3. Correcmess of the conviction's were not canvassed before me. The only argument was on the question of sentence. Counsel for the revision petitioner warited provisions of the Probation of Offenders Act to be applied. Public Prosecutor representing the State wanted the reduction of sentence to be set aside as improper. 3. Correcmess of the conviction's were not canvassed before me. The only argument was on the question of sentence. Counsel for the revision petitioner warited provisions of the Probation of Offenders Act to be applied. Public Prosecutor representing the State wanted the reduction of sentence to be set aside as improper. Therefore I am considering the criminal revision petition as well as the criminal revision case together in this order. 4. Commission of the offence was in between 1-2-1981 and 19-9-1981. Even if the date of commission of the offence is taken as 19-9-1981. the revision petitioner was only 18 years of age at that time. Conviction and sentence by the Magistrate were on 28-6-1983. At that time also he was only 20 years of age. The complaint of the revision petitioner is that both the Magistrate and the Addl. Sessions Judge did not duly consider the applicability of S.4 and 6 of the Probation of Offenders Act. S.3 for release after due admonition is evidently not applicable in the nature of the offences. S.4 (1) of the Probation of Offenders Act reads: "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: 5. Proviso to S.4(1) as well as sub-sections (2). (3) and (4) of S.4 will arise for consideration only if it is decided that the provision of S.4(1) has to be applied. 6. S.6(1) of the Probation of Offenders Act reads thus: "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). (3) and (4) of S.4 will arise for consideration only if it is decided that the provision of S.4(1) has to be applied. 6. S.6(1) of the Probation of Offenders Act reads thus: "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 S.3 or S.4. and if the court passes any sentence of imprisonment on the offender. it shall record its reasons for doing so." 7. The Magistrate only considered the applicability of S.360 of the Code of Criminal Procedure presumably for the reason that the request before him was only to apply that provision. The opinion of the Magistrate that a mere release under a bond into a society which itself exhibits criminal traits will have no effect to reform him and that if so released. he may have to face moral anger from social reaction. in my opinion. is far from convincing as reasons for refusing application of the Probation of Offenders Act. So also I do not agree with the logic behind the statement of the Magistrate that a sentence of fine will only land him in prison as he is incapable of paying a fine. After so saying what the Magistrate imposed was a sentence of imprisonment. There was nothing before the Magistrate to come to the conclusion that the revision petitioner is incapable of paying fine. In fact his counsel represented before me that he could pay fine if imposed. The hope expressed by the Magistrate that the sentence of imprisonment will help contemplation and reflection and the advice given to the jail authorities that he should come out reformed and rejuvenated are evidently not pieces of practical wisdom. At the same time the Magistrate observed on the question of sentence: "But the propensity of his percept is not that of a boy of his age. judging from the way in which he procured and tampered with Ext. P5. This rudimentary rebellious trait. in his mental frame. should be checked. At the same time the Magistrate observed on the question of sentence: "But the propensity of his percept is not that of a boy of his age. judging from the way in which he procured and tampered with Ext. P5. This rudimentary rebellious trait. in his mental frame. should be checked. questioned and tamed before it develops into other matured criminal habits. The accused as well as other like minded young offenders must be deterred from a recurrence. The crime committed by the accused. in the facts and circumstances of the case. have a tendency to corrupt the internal fabric of the mind of the student community and their budding aspirations." These aspects mentioned by the Magistrate are certainly worth being considered in the matter of sentence. 8. The Sessions Judge called for a report from the District Probation Officer and the following details of the report contained in the judgment of the Sessions Judge are factually correct. "9. The District Probation Officer. Ernakulam submitted his report regarding the character and antecedents of the appellant on 5-11-1983. H is a detailed report. It shows that the appellant. whose date of birth as per S.S.L.C. book is 31-7-1983. is now passed 21 years. So he was 18 years of age on the date of commission of offence. The report also shows that the appellant since stopped studying has been assisting in the family handicrafts cottage industry 'Poornima Industries' at home and continues as such. He associates with members of the Young Challengers Cricket Club of North Parur. He is reported to be sociable. religious minded and god fearing too The appellant lives with his parents and consanguines is their own house. His father Madhavankutty Menon is working as Assistant in the Indian Aluminium Company. Kalamassery. The appellant is the youngest of five children of Madhavankutty Menon through his wife Saradha. His eldest brother is working as Supervisor in Star Light Corporation. Bombay and the third brother is also living with him and undergoing studies at Bombay. The second brother who has studied upto Pre-degree. is assisting in their handicrafts and living at home with parents. The only sister who has studied upto Pre-:degree and passed Typewriting Lower is working as Manager Of the family cottage industry. 'Poornima Industries'. Bombay and the third brother is also living with him and undergoing studies at Bombay. The second brother who has studied upto Pre-degree. is assisting in their handicrafts and living at home with parents. The only sister who has studied upto Pre-:degree and passed Typewriting Lower is working as Manager Of the family cottage industry. 'Poornima Industries'. The officer reports that the appellant might have committed the offences as a result of bad thought initially just for the sake of pleasing parents and consanguines. According to the officer the appellant appears to be remorseful. worried and afraid of punishment and has assured not to commit any punishable offence in future. So the 'Probation Officer has recommended that this is a suitable case to be considered for release of the offender on probation of good conduct under S.4(1) of the Probation of Offenders Act with bond and sureties." Thus according to the District Probation Officer the character of the revision petitioner is such that application of the Probation of Offenders Act is warranted. But the Sessions Judge found that the circumstances of the case and the nature of the offence are such that they will disentitle the revision petitioner to the beneficial provisions of the Probation of Offenders Act. The views expressed by the Magistrate and the Sessions Judge will have to be considered in the light of the arguments advanced before me and the principles laid down in the decisions cited. co-relating them to the circumstances of the case including the nature of the offence and character of the offender. 9. While S.3 and 4 of the Probation of Offenders Act make it only discretionary on the part of the courts to decide whether to apply the provisions or not. having due regard to the circumstances of the case including the nature of the offence and character of the offender. S 6 provides for a different treatment in the case of offenders who are below the age of 21 years. which restriction is not there in S.3 and 4. In cases coming under S.6. application of the provisions of S.3 and 4. as the case may be. is the rule and non-application is an exception for which the court roost have the satisfaction that it is not desirable to apply the provisions. which restriction is not there in S.3 and 4. In cases coming under S.6. application of the provisions of S.3 and 4. as the case may be. is the rule and non-application is an exception for which the court roost have the satisfaction that it is not desirable to apply the provisions. having regard to the circumstances of the case including the nature of the offence and character of the offender. The provisions of S.6 practically amounts to a mandatory injunction against the courts to apply the provisions unless satisfaction otherwise is reached for the reasons stated therein. If. in violation of the injunction contained in S.6. the court decides to have a sentence of imprisonment. a mere satisfaction is not sufficient. The court is also bound to record the reasons for such satisfaction in the judgment or order. S.6 embodies a reformative outlook in the sentencing policy so far as young offenders are concerned. It may be on account of the possibility of the grave risk to their attitude towards life to which they are likely to be exposed as a result of the possible close association and contact with all sorts of hardened habitual criminals in jail. Such a life in jail for some time may have its own bad reactions and attract them towards a life of crime instead of reforming themselves for the purpose of becoming good citizens. Their age is such that formation of bad character and way of life are possible by contacts for some time. In the long run. it may do more harm to the society if they come out of the jail with all the evil tendencies acquired by them. Further. the sentencing policy should always be reformative. The provision in S.6 is evidently a landmark in the progress of modern liberal trend of reformation in the field of penology and it made a drastic change in the policy of affecting the sentencing discretion. The intention of the legislature is further evident from S.11 of the Probation of Offenders Act also. S.11(1) of the Act says that the discretion could be exercised even by the appellate or revisional courts. This object is clear from the other sub-sections of S.11 also. In this connection. counsel for the revision petitioner brought to my notice a host of decisions including the decisions in Daulat Ram v. State of Haryana (1973 SCC. (Cri) 41). S.11(1) of the Act says that the discretion could be exercised even by the appellate or revisional courts. This object is clear from the other sub-sections of S.11 also. In this connection. counsel for the revision petitioner brought to my notice a host of decisions including the decisions in Daulat Ram v. State of Haryana (1973 SCC. (Cri) 41). Ishar Das v. State of Punjab (1973 SCC. (Cri) 708). Satyabhan Kishore v. State of Bihar (1972(1) SCWR. 630). Rattanlal v. State of Punjab (AIR. 1965 SC. 444). Arvind Mohan Sinha v. Amulya Kumar Biswas (1974 SCC. (Cri) 391). Kamroonissa v. State of Maharashtra (1974 SCC. (Cri) 880). Devki v. State of Haryana (AIR. 1979 SC 1948). Mohd. Aziz & Mohd Nasir v. State of Maharashtra (1976 SCC (Cri) 148). Ved Prakash v. State of Haryana (AIR. 1981 SC. 643) and 1983 (I) SCWR 151). 10. In Daulat Ram's case (1973 SCC (Cri) 41). it was observed that S.6 of the Probation of Offenders Act will have to be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company. In Ishar Das's case (1973 SCC (Cri) 708) it was held that the provisions of Probation of Offenders Act could be applied in appropriate cases even when minimum punishment is prescribed. After the decision in that case. it is said. that many statutes specifically excluded the applicability of the Probation of Offenders Act. In Satyabhan Kishore's case (1972(1) SCWR 630). the District Probation Officer in his report made no recommendation in favour of the accused and made no adverse remark also. Still the Court expressed the view that in the light of the laudable reformatory object which the Legislature was seeking to achieve. the provisions will have to be applied. In Arvind Mohan Sinha's case (1974 SCC (Cri) .391). the offences involved were those under the Customs Act and Gold Control Rules having impact on the economy of the country. Still in the circumstances of that case. the court found that the Probation of Offenders Act is applicable In Rattanlal's case (AIR. 1965 SC. In Arvind Mohan Sinha's case (1974 SCC (Cri) .391). the offences involved were those under the Customs Act and Gold Control Rules having impact on the economy of the country. Still in the circumstances of that case. the court found that the Probation of Offenders Act is applicable In Rattanlal's case (AIR. 1965 SC. 444) the provisions of the Probation of Offenders Act was applied even in a case where the Act was not in force at the time of the commission of offence and inspite of" the fact that the trial court and appellate court did not apply the provisions. 11. Almost all the decisions cited by the counsel for the revision petitioner laid down almost identical principles as stated by me earlier The principles laid down in those decisions could be broadly stated thus: (1) S.6(1) of the Probation of Offenders Act is normally mandatory. It virtually amounts to an injunction in cases of offenders below the age of 21 years when the offence is not punishable with imprisonment for life except in cases where. for reasons to be recorded. the Court is satisfied that having regard to the circumstances of the case including the nature of the offence and character of the offender. that it is not desirable to deal with offenders under the provisions. Whenever desirable in such cases the policy should be release on probation. to see that another culprit is not born. (2) Mere gravity of the offence by itself is not a decisive factor. (3) The report of the District Probation Officer must be called for and due weight will have to be given to it. Rehabilitation and not condemnation should be the object. Report of the Probation Officer will have to be normally accepted as a primafacie evidence regarding the character and other details. (4) Nature of the crime. antecedence of the offender. impact of the sentencing discretion on the interest of the society etc. are relevant considerations. and (5) Considering the impact of other relevant aspects also. normally refusal to apply the provisions will have to be limited to cases where reformation and reclamation becomes impossible. 12. But at the same time we should not forget the fact that the mandatory injunction under S.6( I) is not an absolute one. Even the legislature contemplated cases where the courts will have to refuse application of the provisions. normally refusal to apply the provisions will have to be limited to cases where reformation and reclamation becomes impossible. 12. But at the same time we should not forget the fact that the mandatory injunction under S.6( I) is not an absolute one. Even the legislature contemplated cases where the courts will have to refuse application of the provisions. In the decision in Abdul Razack v. Food Inspector (1976 KLT. 386) it was observed that even though the Probation of Offenders Act is a mile-stone in the progress of modern liberal trend and reform in the field of penology. the Courts should not be unmindful of the impact of crimes on society consequent on letting particular kinds of offenders on probation. Necessity for sentences in appropriate cases to act as a deterrent has been emphasised in the decision in Ved Prakash's case (AIR. 1981 SC 643). In the decision in State of Maharashtra v. Kapur Chand (AIR. 1981 SC 927). it was observed that the fact that such offences become rampant and have already endangered the economy of the nation. cannot be looked upon with equanimity for the purpose of dealing with the commission of such offences leniently. Detriment to life and liberty of others will have to be taken as a relevant consideration in the matter of exercising the sentencing discretion. 13. It is common knowledge that criminal tendency is on increase-in the student world now-a-days. The reaction of such a tendency and its impact on the future of the society is a matter that will have to be considered by the courts in exercising the sentencing discretion. In a given case the application of the Probation of Offenders Act may be capable of reforming the particular offender involved in that case But at the same time such a sentencing policy may have unfavourable reactions on thousands of similarly placed persons and the sentencing policy may be sometimes producing thousands of criminals. The broader interest of the society also will have to be taken into account. 14. Offences of the type committed by the revision petitioner were being resorted to in our State in the dark in a large scale. Investigation in this line was focused only by a direction given by this Court. There may be many such cases yet to be unfolded. Such crimes are being committed with ease. 14. Offences of the type committed by the revision petitioner were being resorted to in our State in the dark in a large scale. Investigation in this line was focused only by a direction given by this Court. There may be many such cases yet to be unfolded. Such crimes are being committed with ease. The result was that many deserving students were eliminated and those who are not deserving got admissions and appointments by malpractices. The action of the revision petitioner has no comparison with the immaturity of his age. It cannot be correct to say that they are instances of juvenile delinquency. He did not tamper his own mark list. He got the certificate of another boy and corrected the same. The fact that he did not attempt to get admission to the Medical College or Engineering College and that he only sought admission in a parallel college cannot be treated as mitigating circumstances. Probably admission to such a professional college was beyond his reach. So also it may be possible that be might have thought that seeking admission to a parallel college will expose him only to a lesser risk of detection. This is not a case in which the offence was committed all on a sudden on the spur of the moment. The offence was not committed due to pressure of any circumstance or on account of aid or instigation from any other source. The character of the offender as evidenced from the report of the District Probation Officer alone should not be the consideration in such cases. The nature of the offence. the circumstances in which it was committed and impact of such offence on the future life of the society are also matters which will have to get serious attention from the court. The impact of a leniency in the matter of punishment on the student world and the consequent damage to the society is also an important factor in determining the sentencing policy. Release of the revision petitioner on probation is likely to result in the student world taking such offences light-heartedly. That may tend to increase commission of such offences in future. One of the justifications of sentencing is protection of the interest of the society. 15. Taking all these aspects into consideration. Release of the revision petitioner on probation is likely to result in the student world taking such offences light-heartedly. That may tend to increase commission of such offences in future. One of the justifications of sentencing is protection of the interest of the society. 15. Taking all these aspects into consideration. I think that it may not be desirable to deal with the revision petitioner under the Probation of Offenders Act as requested by the counsel. The learnsd Public Prosecutor appearing on behalf of the State contended before me that the Sessions Judge went wrong in exercising the sentencing discretion in order to reduce the rigorous imprisonment for one year awarded by the Magistrate to simple imprisonment for six months. It cannot be said that the argument of the Public Prosecutor is without basis. But the Sessions Judge has already exercised the sentencing discretion. having due regard to the facts and circumstances of the case. The State has not chosen to file an appeal against the sentence. It is true that this Court has taken up the matter of sentence in suo mote revision. The offence was committed in 1981 and it is now nearly four years. I do not think that it is necessary at this stage to set aside the judgment regarding sentence and remit the case back for fresh consideration on that question. Therefore. I do not feel inclined to interfere with the sentence in any way. The conviction and sentence as modified by the Sessions Judge is therefore confirmed and Crl. R. P. 521 of 1983 is dismissed. Crl. R. C. 3 of 1984 is also disposed of accordingly. Dismissed.