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Madhya Pradesh High Court · body

2020 DIGILAW 634 (MP)

ANTAR SINGH v. STATE OF M. P.

2020-05-27

VIVEK RUSIA

body2020
ORDER : – The applicant/accused has filed the present revision under section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “the JJ Act” for short) against the judgment dated 9-12-2019 passed by learned 1st Addl. Sessions Judge, Khargone, and judgment dated 12-7-2019 passed by Magistrate, Juvenile Justice Board, Khargone whereby he has been convicted under section 25(1-B)(a) and 25(1)(a) of the Arms Act and sent to a special home for a period of one year. 2. As per prosecution story, Sub Inspector-Ms. Sadhna Pure of Bhikangaon Police Station received information on the telephone that two persons, out of which one is ‘Sardar’ with a red colour bag and another person with white colour plastic bag carrying pistols in it illegally are standing with the planning to go somewhere else. After recording the said intimation in ‘Rojnamcha’, Ms. Sadhna Pure along with police force reached near ‘Shani Mandir’ and found two persons standing there. After seeing the police vehicle, they tried to run away, but they were caught. They disclosed their name as Bada s/o Raghunath and Antarsingh – the present applicant. After search, 8 pistols were found in the red bag hold by the present applicant and 8 pistols were found in the plastic white bag hold by Bada s/o Raghunath. The police prepared seizure ‘Panchnama’ as both have failed to produce any license or permission to carry such arms. An FIR under section 25(1) of the Arms Act was registered against both of them. Since the present applicant was juvenile at the time of the commission of offence, therefore, he was produced before the Juvenile Justice Board. Learned Juvenile Justice Board framed the charges under section 25(1-B)(a) and 25(1)(a) of the Arms Act and explained to him as he was found to be in conflict with law. He denied the charges and pleaded for trial. 3. In order to prove the charges, the prosecution examined 9 witnesses. After appreciating the evidence came on record and after hearing the applicant, learned Magistrate, Juvenile Justice Board vide judgment dated 12-7-2019 in exercise of powers conferred under section 18(1)(g) directed him to send to a special home for a period of one year for providing reformative services during the period of stay in a special home. 4. After appreciating the evidence came on record and after hearing the applicant, learned Magistrate, Juvenile Justice Board vide judgment dated 12-7-2019 in exercise of powers conferred under section 18(1)(g) directed him to send to a special home for a period of one year for providing reformative services during the period of stay in a special home. 4. Being aggrieved by the aforesaid judgment, the applicant preferred a criminal appeal before the Sessions Court and vide judgment dated 9-12-2019, learned Addl. Sessions Judge has dismissed the appeal and upheld the conviction and sentence awarded to the applicant. Hence, the present revision before this Court. 5. At the very outset, Shri Amit Singh Sisodia, learned counsel appearing for the applicant, submits that he is not pressing this revision on merit, but praying for the benefit of the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as “the PO Act” for short) to the applicant. He further submits that both the Courts below have failed to grant the benefit of the PO Act to the applicant as he had no criminal antecedents and at the time of the commission of the offence, he was juvenile. He submits that though section 25 of the Arms Act provides a minimum sentence of one year with fine, but the Court for any adequate and special reasons to be recorded in the judgment may impose a sentence of imprisonment for a term of less than one year. The provisions of PO Act are also reformatory in nature, therefore, the applicant ought to have been given the benefit of the PO Act while awarding sentence under the provisions of the JJ Act. The applicant has already undergone almost six months of the sentence in a special home and there is no adverse report against him, therefore, the period of one year may be reduced to the period already undergone in the special home. In support of his contention, learned counsel for the applicant has placed reliance over the judgment of Punjab and Haryana High Court in the case of Raja Ram vs. State of Haryana, 2011 SCC OnLine P and H 6370, in which, it has been that there is no bar to the applicability of sections 4 and 6 of the PO Act despite there being a minimum sentence of one year is provided under the Arms Act. In the case of Kushal Das vs. State of Rajasthan, 2014 SCC OnLine Raj 6109, the High Court of Rajasthan has released the petitioner on probation of good conduct after undergoing the detention period of 1½ months in a case of violation of the provisions of the Arms Act. In the case of Uday Singh vs. State of Haryana, 2015 SCC OnLine P and H 11158, the Punjab and Haryana High Court in the exercise of revisional jurisdiction has granted the benefit of sections 3, 4 and 6 of the PO Act to the accused and released him on probation after holding that in view of section 19 of the Probation Act apply, the relevant provisions of the Code will not apply. He has further placed reliance over the judgment of the Supreme Court of India in the case of Ishar Das vs. State of Punjab, (1973) 2 SCC 65 has held that section sub-section (1) of section 4 of the PO Act contains the words “notwithstanding anything contained in law for the time being in force, hence the above obstante clause points to the conclusions that the provisions of section 4 of the PO Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. He has placed reliance over the judgment of the Supreme Court of India in the case of Ved Prakash vs. State of Haryana, (1981) 1 SCC 447 in which, it has been held that the accused-appellant must be released under section 4(1) of the PO Act on his entering into a bond. Finally, he has placed reliance over the judgment of Full Bench of Punjab and Haryana High Court in the case of Joginder Singh vs. State of Punjab, Cr. Revision No. 573/1979 decided on 23-5-1980 in which it has been held that the mere prescription of the minimum sentence under the Punjab Excise Act, 1914 is no bar to the applicability of section 360 and 361 of the Criminal Procedure Code and the same is not a special reason for denying the benefit of probation to a person convicted thereunder. 6. On the other hand, Shri Saransh Jain, learned Panel Advocate appearing for the respondent/State, opposes the prayer by submitting that the applicant was found carrying 8 illegal arms without any permission or licence, therefore, he has rightly been convicted under the provisions of the Arms Act. 6. On the other hand, Shri Saransh Jain, learned Panel Advocate appearing for the respondent/State, opposes the prayer by submitting that the applicant was found carrying 8 illegal arms without any permission or licence, therefore, he has rightly been convicted under the provisions of the Arms Act. The applicant has failed to fulfill the conditions as prescribed in sections 4 and 6 of the PO Act, therefore, learned Courts below have rightly declined the benefit. Under the Arms Act, there is a minimum sentence of one year which has rightly been awarded to him. The provisions of PO Act as well as JJ Act are reformatory in nature, therefore, the applicant has rightly been sent to the special home for providing reformative services for one year. He further submitted that the scope of interference by this Court under the revisional jurisdiction is very limited, therefore, the revision is liable to be dismissed. 7. I have heard the learned counsel appearing for the parties through video conferencing and perused the record. 8. As the applicant is not challenging his conviction under section 25(1-B) and 25(1)(a) of the Arms Act, hence there is no need to reappreciate the evidence adduced in support of the allegation. Even otherwise findings recorded by both the Courts below are not suffering from any material infirmity and anomaly. It cannot be said that the learned trial Court has committed any error in recording conviction for aforesaid offences nor the learned appellate Court has committed any error in affirming the conviction, hence all the conviction of the applicant is hereby upheld. 9. The only issue which requires consideration in this revision is, whether the applicant is entitled to get the benefit of provisions of the PO Act or not? Section 25 of the Arms Act prescribes imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine but as per proviso, the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. 10. In the case of Mohd. Hashim vs. State of U. P., (2017) 2 SCC 198 , the apex Court has held that minimum sentence means a sentence which must be imposed without leaving any discretion to the Court. 10. In the case of Mohd. Hashim vs. State of U. P., (2017) 2 SCC 198 , the apex Court has held that minimum sentence means a sentence which must be imposed without leaving any discretion to the Court. It means a quantum of punishment which cannot be reduced below the period fixed. When the legislature prescribes a minimum sentence without discretion, the same cannot be reduced by the Courts. However, sometimes the legislation prescribes a minimum sentence but grants discretion to the Courts, for the reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. A provision that gives discretion to the Court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognised and accepted for the PO Act. Even for the benefit of PO Act, the minimum sentence prescribed in a particular statute cannot be reduced. Para 18, 19 and 24 of the aforesaid judgment are reproduced below : “18. The issue that arises for consideration is whether minimum sentence is provided for offences under which the respondents have been convicted. On a plain reading of section 323 and 498-A, it is quite clear that there is no prescription of minimum sentence. Learned counsel for the appellant would contend that section 4 of the 1961 Act provides for minimum punishment. To appreciate the said contention, the provision is reproduced below : – “4. Penalty for demanding dowry. – If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees : Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.” 19. Learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha (supra) and Ratan Lal Arora (supra). We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the Court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the Courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the Court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the Court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the PO Act. 24. At this juncture, learned counsel for the respondents would submit that no arguments on merits were advanced before the appellate Court except seeking release under the Po Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the Court has to be guided by the provisions of the PO Act and the precedents of this Court. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the Court has to be guided by the provisions of the PO Act and the precedents of this Court. Regard being had to the facts and circumstances in entirety, we are also inclined to accept the submission of the learned counsel for the respondents that it will be open for them to raise all points before the appellate Court on merits including seeking release under the PO Act.” Therefore, in view of the aforesaid Judgment of the Apex Court, the Court is having jurisdiction to reduce the sentence and not to award the minimum sentence of one year for the reasons to be recorded. The benefit of PO Act can be granted to the petitioner by reducing the sentence from one year to the period already undergone. 11. In the case of Lakhanlal @ Lakhan Singh vs. State of M. P., Cr. Appeal No. 1306/2013 decided on 4-4-2019, the Apex Court has considered the scope of section 3 and 4 of the PO Act vis-a-vis section 360 of Criminal Procedure Code and held that both the statutes are for the treatment, training or rehabilitation of youthful offenders. Section 4 of the PO Act has a non-obstante clause that gives overriding effect over any other provisions of law. Para 15 and 16 of the aforesaid judgment are reproduced below : “15. We find that the attention of the Court was not drawn to sub-section (10) of section 360 which provides that section 360 will not affect the provisions of 1958 Act or other similar laws for the time being in force for the treatment, training or rehabilitation of youthful offenders. Still further, section 4 of the 1958 Act has a non-obstante clause, giving overriding effect over any other provisions of law. 16. The conjoint reading of the provisions of both the statutes, we find that the provisions of section 360 of the Code are in addition to the provisions of the 1958 Act or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.” 12. 16. The conjoint reading of the provisions of both the statutes, we find that the provisions of section 360 of the Code are in addition to the provisions of the 1958 Act or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.” 12. Section 18 of the JJ Act provides that where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may allow the child to go home; or direct the child to participate in group counseling; or order the child to perform community service under the supervision of an organisation; etc or direct the child to be sent to a special home, for such period, not exceeding three years, for providing reformative services including education, skill development, counseling, etc. There is no minimum period prescribed under section 18(g) of the JJ Act. As per section 18(2) of the JJ Act, if an order is passed under Clauses (a) to (g) of sub-section (1), the Board may, in addition, pass orders to attend school; attend vocational training, undergo deaddiction programme, etc. In the present case, the applicant has already undergone six months in the special home, therefore, the benefit of the provisions of the PO Act can be extended to the applicant by directing him to perform community service under the supervision of an organisation or institution or a special person or a group of persons identified by the Board. Hence, the order is modified to the extent that the applicant shall perform the community service under section 18(1)(c) of the JJ Act under the supervision of an organisation or institution identified by the Juvenile Justice Board. The record of the Courts below be sent to the concerned Juvenile Justice Board forthwith with the direction to pass an appropriate order for sending the applicant to perform community services under section 18(1)(c) of the JJ Act for three months. 13. With the aforesaid, this revision stands partly allowed.