DATE OF JUDGEMENT: 16th August, 1972
JUDGES: Hon’ble Mr. Justice Khanna, Hon’ble Mr. Justice Hans Raj.
PARTIES: JUGAL KISHORE PRASAD (Plaintiff)
STATE OF BIHAR (Respondent)
SUBJECT:The Judgment of the Court was delivered by Khanna, J granted by Patna High Court, the question at hand is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the Probation of Offenders Act.
AN OVERVIEW
(i) The Judgment of the Court was delivered by Khanna, J granted by Patna High Court, the question at hand is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the Probation of Offenders Act.
(ii) The appellant and five others, who belong to village Mandil in District Gaya, were tried in the court of Additional Sessions Judge Gaya for offences under sections 147, 148, 307, 323 and 307 read with section 149 Indian Penal Code and section 25 of the Arms Act.
(iii) Following that Jugal Kishore appellant was convicted under section 326 read with section 149 and section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years on the first count and rigorous imprisonment for a, period of two years on the second count. The sentences awarded to the appellant were ordered to run concurrently. The other five accused were also convicted for various offences and were sentenced on those counts.
(iv) On appeal the Patna High Court as per judgment dated January 22, 1968 acquitted two of the accused. The conviction of the appellant for offences under section 326 read section 149 and 148 Indian Penal Code was maintained.
(v) The sentence of the appellant for the offence under section 326 read with section 149 Indian Penal Code was reduced from five years to three years. The sentence for the offence under section 148 Indian Penal Code was, however, maintained. The conviction of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count
(vi) After the judgment by the High Court, an application was made on behalf of the appellant that his case be deal; with under the Probation of Offenders Act on the ground that he was below 21 years of age at the time of his conviction by the trial court.
(vii) The application was rejected by the High Court as per ,order dated December 12, 1968 on the ground that the offence for which the appellant had been convicted was punishable with imprisonment for life, and as such, the provisions of Probation of Offenders Act could no be invoked in his case.
(viii) The appellant made an appeal to the Supreme Court as it involved the question relating to the applicability of the Probation of Offenders Act.
IMPORTANT PROVISIONS
Indian Penal Code
- Section 326 - deals with the offence of voluntarily causing grievous hurt by dangerous weapons or means and the punishment prescribed for the offence is imprisonment for life, or imprisonment of either description for a term which may extend to ten years. The convicted person shall also be liable to pay fine.
- Section 149- if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Constitution of India
- Section 134(1)(c) - an appeal against a decision of a High Court can be filed before the Supreme Court if the High Court certifies.
ISSUES
The issues raised by the parties:
- The Judgment of the Court was delivered by Khanna, J granted by Patna High Court, the question at hand is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the Probation of Offenders Act.
ANALYSIS OF THE JUDGEMENT
- The appellant and his companions were tried on the allegation that on October 14, 1964, while Madho Saran was getting his field bearing No. 1678 ploughed by his ploughman Rakshya Mahto, the appellant and Raghu accused went there and questioned Madho Saran for cutting the ridge between field No. 1678 and 1719. Field No. 1719 belonged to the appellant.
- Furtherance, Madho Saran went to his house and narrated the incident to his brother Sadho Saran. Madho Saran and Sadho Saran along with others then came out of their house and while they were near a barrage, they met the accused who were accompanied by about 30 person of their village. One of the accused, namely, Hira Lal, who was armed with a gun, fired a shot as a result of which Sadho 'Saran was hit on his head. Sadho Saran fell down, whereafter the other accused, including the appellant who was armed with a garasa, caused further injuries to Sadho Saran and his companions with sharp-edged and blunt weapons. The injured were thereafter taken to Jehanabad Hospital. On receipt of intimation from the doctor incharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran, Nand Kishore, one of the accused, also lodged a report at the police station.
- The appellant gave his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the case has been argued before us on the assumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Judge.
- The main offence for which the appellant has been convicted is section 326 read with section 149 Indian Penal Code. Consequently, the appellant on being convicted for the offence under section 326 read with section 149 Indian Penal Code was liable to be punished for imprisonment for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine.
- Mr. Misra on behalf of the appellant has urged that as the offence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but also with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant.
CONCLUSION
The Probation of Offenders Act was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.
Modern criminal jurisprudence recognises that no one is a born criminal and that good many crimes are the product of socioeconomic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals.
Consequently, it is provided that youthful offenders should not be sent to jail, except in certain circumstances.
Hence before one uses this section, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of section 6 of the Act. In rebuttal to this, Mr. Misra on behalf of the appellant has urged that as the offence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but also with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant.The Bench stated that this contention is not well founded. In furtherance the Bench stated that, imprisonment for life can also be awarded for the offence under section 326 read with section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of section 6. To hold contrary would have the effect of ignoring the words "but not with imprisonment for life" and treating them to be otiose. Such ignorance is plainly not permissible, in the view of the Court. Further reiterated by the Court, was that the policy underlying the Act appears to be that it is only in cases of not very serious nature, viz., offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act. It was held that the offence for which the person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case.
It was held by the Bench that appellant cannot invoke the benefit of section 6 of the Probation of Offenders Act, as the appeal fails and is dismissed. Consequently, Appellant to surrender to the bail bond and the appeal is dismissed.
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