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Himachal Pradesh High Court · body

2016 DIGILAW 2675 (HP)

Mohammad Farman v. State of H. P.

2016-12-16

AJAY MOHAN GOEL

body2016
JUDGMENT : AJAY MOHAN GOEL, J. Cr. MP No. 1281 of 2016 & Cr. MP No. 1283 of 2016 1. This Court vide its judgment dated 02.11.2016, dismissed the Criminal Revision Petition filed by the present applicants against judgments passed by the Court of learned Judicial Magistrate, 1st Class, Court No. 1, Kasauli in Criminal Case No. 73/2 of 2009 dated 08.08.2011 and Court of learned Sessions Judge, Solan in Criminal Appeal No. 33-S/10 of 2011 dated 08.03.2013, respectively, whereby the present applicants were convicted by the learned trial Court, which judgment was upheld by the learned appellate Court. 2. By way of these applications, applicants have averred that while dismissing the revision petition, this Court erred in not granting benefit of Probation of Offenders Act, 1958 to the convicts as is envisaged under Section 6 read with Section 11 of the Probation of Offenders Act, 1958, keeping in view the fact that at the time when the crime was committed, both the accused were less than 21 years of age and even when the judgment was announced by the learned trial Court, the age of accused was less than 21 years. 3. According to Mr. Manta, there is no unfettered discretion vested in this Court so as not to comply with the provisions of Section 6 of the Probation of Offenders Act, 1958 and according to him, because the age of the convicts at the time when the crime was committed was less than 21 years, it was mandatory for this Court to have had granted them benefit of Probation of Offenders Act. For this purpose, Mr. Manta has relied upon the judgment of Hon'ble Supreme Court in Ramji Missar and another Vs. State of Bihar AIR 1963 Supreme Court 1088 and Rattan Lal Vs. The State of Punjab AIR 1965 Supreme Court 444. 4. I have heard Mr. Rakesh Manta, learned counsel for the applicants/petitioners as well as learned Deputy Advocate General. 5. Manta has relied upon the judgment of Hon'ble Supreme Court in Ramji Missar and another Vs. State of Bihar AIR 1963 Supreme Court 1088 and Rattan Lal Vs. The State of Punjab AIR 1965 Supreme Court 444. 4. I have heard Mr. Rakesh Manta, learned counsel for the applicants/petitioners as well as learned Deputy Advocate General. 5. A perusal of the judgment passed by the learned trial Court demonstrates that after convicting the accused and before imposing sentence upon them, learned trial Court considered the factum as to whether the benefit of Probation of Offenders Act was to be granted to the accused or not and after due application of mind, it held that keeping in view the facts and circumstances of the case, the benefit of Probation of Offenders Act cannot be extended to the accused. The findings so returned by the learned trial Court are quoted herein-below: “27. Keeping in view the facts and circumstances and the manner in which the complainant was assaulted by the convicts much lenient view cannot be taken and the facts and circumstances of the case too suggest that it is also not a case where the benefit of Probation of Offenders Act can be given to the convicts. The complainant was very brutally assaulted by the convicts without any reason and it shows their high headedness. Owing to these facts and circumstances, neither much lenient view can be taken not the benefit of Probation of Offenders Act can be given to the convicts. However, keeping in view the fact that convicts are facing the trauma of the trial for the last three years and are first offenders a little lenient view is taken and the convicts are sentenced to undergo simple imprisonment for one year and fine of Rs.1000/- (Rs. One thousand only) each for the commission of offence punishable under Section 325 read with Section 34 of the Indian Penal Code. In default of payment of fine the convicts shall further undergo simple imprisonment for thirty days.” 6. Therefore, it is not a case where learned trial Court after convicting the accused, imposed sentence upon them in ignorance of the provisions of Section 6 of the Probation of Offenders Act. 7. In default of payment of fine the convicts shall further undergo simple imprisonment for thirty days.” 6. Therefore, it is not a case where learned trial Court after convicting the accused, imposed sentence upon them in ignorance of the provisions of Section 6 of the Probation of Offenders Act. 7. A perusal of the grounds of appeal taken by the convicts before the learned appellate Court demonstrate that there was no challenge in the grounds of appeal to the adjudication made by the learned trial Court of not granting the convicts the benefit of Probation of Offenders Act. Similarly, even before this Court in the revision petition, there was no specific challenge laid to the order passed by the learned trial Court of not granting benefit of Probation of Offenders Act to the convicts and all that was stated in the revision petition was that the Courts below could have extended the benefit of Probation of Offenders Act to the convicts. 8. In my considered view, whether or not the benefit of Probation of Offenders Act is to be granted is a discretion vested with the Courts and though this discretion has to be exercised in a judicious manner by the learned Courts and not in an arbitrary manner, however, the convicts cannot force a Court to mandatorily grant a convict benefit of Probation of Offenders Act, if the convict happens to be less than 21 years of age at the time when the crime was committed, as is being canvassed by the petitioners. Neither Rule 6 of the Probation of Offenders Act nor Rule 11 of the same mandatorily directs a Court of law to grant benefit of Probation of Offenders Act to an accused if the accused happens to be less than 21 years of age at the time of commission of the offence, as is in fact the plea of the learned counsel for the petitioners. The Hon'ble Supreme Court in neither of the judgments relied upon by the petitioners has laid down this law that if an accused is less than 21 years of age as on the date when the offence is committed, then mandatorily he has to be granted benefit of Probation of Offenders Act. 9. The Hon'ble Supreme Court in neither of the judgments relied upon by the petitioners has laid down this law that if an accused is less than 21 years of age as on the date when the offence is committed, then mandatorily he has to be granted benefit of Probation of Offenders Act. 9. Even otherwise, in my considered view, the judgments relied upon by the learned counsel for the applicants/petitioners do not have any applicability in the facts of the present case, because therein the factual position was totally different as High Court in the matter reported in AIR 1963 Supreme Court 1088, had refused to exercise its powers under Section 11 of the Probation of Offenders Act on the ground that at the time when the accused were convicted by the learned trial Court, they were more than 21 years of age. It is not the factual position in this case, because admittedly it is not as if the learned trial Court refused to grant the accused benefit of Probation of Offenders Act on the ground that at the time when the judgment was announced by the learned trial Court, they were more than 21 years of age. 10. As I have already held above, learned trial Court has not denied the benefit of Probation of Offenders Act on the basis of erroneous or wrong consideration of age of the accused. It has denied the benefit of Probation of Offenders Act after taking into consideration the facts of the case. 11. Similarly, the factual position on which the Hon'ble Supreme Court adjudicated in AIR 1965 Supreme Court 444 is also not akin to the factual position in this case, because in that case, the issue was with regard to retrospective operation of the Probation of Offenders Act. 12. There is no force in the arguments of learned counsel for the applicants/petitioners that because the applicants were less than 21 years of age as on the day when the crime was committed, therefore, they were entitled to be extended the benefit under Sections 3 & 4 or Section 6 of the Probation of Offenders Act, as a matter of right. 13. Recently, the Hon'ble Supreme Court in Mohd. Hashim Vs. State of UP & Ors., Criminal Appeal No. 1218 of 2016, decided on 28.11.2016 has held: “20. 13. Recently, the Hon'ble Supreme Court in Mohd. Hashim Vs. State of UP & Ors., Criminal Appeal No. 1218 of 2016, decided on 28.11.2016 has held: “20. Presently, we shall advert to the second plank of the submission advanced by the learned counsel for the appellant. In Rattan Lal vs. State of Punjab7 . Subba Rao, J., speaking for the majority, opined thus: “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 7 AIR 1965 SC 444 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.” We have reproduced the aforesaid passage to understand the philosophy behind the Act. 21. In this regard, it is also seemly to refer to other authorities to highlight how the discretion vested in a court under the PO Act is to be exercised. In Ram Prakash vs. State of Himachal Pradesh8 , while dealing with Section 4 of the PO Act in the context of the Prevention of Food Adulteration Act, 1954, the Court opined that the word 'may' used in Section 4 of the PO Act does not mean 'must'. In Ram Prakash vs. State of Himachal Pradesh8 , while dealing with Section 4 of the PO Act in the context of the Prevention of Food Adulteration Act, 1954, the Court opined that the word 'may' used in Section 4 of the PO Act does not mean 'must'. On the contrary, as has been held in the said authority, it has been made clear in categorical terms that the provisions of the PO Act distinguishes offenders below 21 years of age and those 8 AIR 1973 SC 780 above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. Thereafter, the Court has proceeded to observe: “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 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. (Ratan Lal vs. State of Punjab (supra) and Ramji Missir vs. the State of Bihar ( AIR 1963 SC 1088 ).” 14. Therefore, in view of the findings returned above, these applications are dismissed. Cr. MP No. 1304 of 2016 & Cr. MP No. 1292 of 2016 15. As this Court has not interfered in the applications filed under Section 11 (1) of the Probation of Offenders Act, 1958, these applications are accordingly dismissed as infructuous.