point that the Court before exercising the power under Section
4 of the PO Act has to keep in view the nature of offence and
the conditions incorporated under Section 4 of the PO Act. Be
it stated in Dalbir Singh vs. State of Haryana and others
AIR 2000 SC 1677
it has been held that Parliament has made it clear that only if
the Court forms the opinion that it is expedient to release the
convict on probation for the good conduct regard being had to
the circumstances of the case and one of the circumstances
which cannot be sidelined in forming the said opinion is “the
nature of the offence”. The Court has further opined that
though the discretion as been vested in the court to decide
when and how the court should form such opinion, yet the
provision itself provides sufficient indication that releasing the
convicted person on probation of good conduct must appear to
the Court to be expedient.
10. It was then held that the court must construe
the said word in keeping with the context and object
of the provision in its widest amplitude. Here the
word “expedient” is used in Section 4 of the PO Act
in the context of casting a duty on the court to take
into account “the circumstances of the case including
the nature of the offence…”. This means Section
4 can be resorted to when the court considers the
circumstances of the case, particularly the nature of
the offence, and the court forms its opinion that it is
suitable and appropriate for accomplishing a specified
object that the offender can be released on probation
of good conduct.”
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,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1218 OF 2016
(Arising out of S.L.P. (Crl) No. 6104 of 2014)
Mohd. Hashim
V
State of UP & Ors.
Dated:November 28, 2016.
Citation:(2017) 2 SCC198
2. Respondent Nos. 2 to 10 were prosecuted for the offences
punishable under Sections 498-A and 323 of the Indian Penal
Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act,
1961 (for short, 'the 1961 Act'). The respondent Nos.2 and 3
were convicted under Section 498-A IPC and sentenced to
undergo rigorous imprisonment for two years and to pay a fine
of Rs.1,000/- (Rupees one thousand only) each with the
default clause. The other accused, i.e., respondent nos.4 to
10 were convicted for the offence punishable under Section
498-A of the IPC and sentenced to undergo simple
imprisonment of six months and pay a fine of Rs.1,000/-
(Rupees one thousand only) each with the default clause. All
the accused persons were convicted under Section 323 of the
IPC and Section 4 of the 1961 Act and sentenced to undergo
rigorous imprisonment for six months on the first count and
for a period of one year on the second score. They were also
sentenced to pay fine with the stipulation of the default
clause.
3. The respondents challenged the judgment of conviction
and order of sentence before the learned Sessions Judge,
Unnao, U.P. in Criminal Appeal No.55 of 2013 who, in course
of hearing, taking note of the fact that the counsel appearing
for the appellants had abandoned the challenge pertaining to
the conviction but only confined the argument seeking benefit
under Section 4 of the Probation of Offenders Act, 1958 (for
short, 'the PO Act'), extended the benefit as prayed for.
4. Being grieved by the aforesaid judgment of the learned
appellate Judge, the informant preferred Criminal Revision
No.252 of 2013 before the High Court. In its assail, the
counsel for the informant placed reliance on Shyam Lal
Verma vs. Central Bureau of Investigation1
, State
Through SP, New Delhi vs. Ratan Lal Arora2
, and State
represented by Inspector of Police, Pudukottai, T.N. vs. A.
Parthiban3
to buttress the submission that the benefit under
Section 4 of the PO Act could not have been extended to the
convicts regard being had to the nature of the offences and
the punishment provided for the same. The High Court
repelling the argument concurred with the opinion expressed
by the learned Sessions Judge.
5. We have heard Mr. Ashutosh Jha, learned counsel for
the appellant, Ms. Pragati Neekhra, learned counsel for the
State and Ms. Rashmi Singh, learned counsel for the
respondents. As the controversy related to the Probation of
Offenders Act, we have also heard Mr. Ranjit Kumar, learned
Solicitor General of India and Ms. Pinky Anand, learned
Additional Solicitor General for the Union of India.
6. There is no dispute over the fact that the respondents
were convicted as has been stated earlier. The question is
whether the approach of the learned appellate Judge which
1 (2014) 15 SCC 340
2 (2004) 4 SCC 590
3 (2006) 11 SCC 473Page 4
4
have been concurred by the High Court is legally sustainable.
7. In this context, it is pertinent to appreciate the scheme of
the PO Act. Section 3 of the PO Act confers power on the
Court to release certain offenders after admonition. The said
provision reads as follows:-
“3. Power of court to release certain offenders
after admonition.—When any person is found
guilty of having committed an offence punishable
under section 379 or section 380 or section 381 or
section 404 or section 420 of the Indian Penal Code,
(45 of 1860) or any offence punishable with
imprisonment for not more than two years, or with
fine, or with both, under the Indian Penal Code, or
any other law, and no previous conviction is proved
against him 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 so to do, then, notwithstanding anything
contained in any other law for the time being in
force, the court may, instead of sentencing him to
any punishment or releasing him on probation of
good conduct under section 4 release him after due
admonition.”
8. Section 4 of the PO Act deals with the power of Court to
release certain offenders on probation on good conduct. The
said provision is as under:-
“4. Power of court to release certain offenders on
probation of good conduct.— (1) 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 ofPage 5
5
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:
Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender
or his surety, if any, has a fixed place of abode or
regular occupation in the place over which the court
exercises jurisdiction or in which the offender is
likely to live during the period for which he enters
into the bond.
(2) 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.
(3) When an order under sub-section (1) is made,
the court may, if it is of opinion that in the interests
of the offender and of the public it is expedient so to
do, in addition pass a supervision order directing
that the offender shall remain under the
supervision of a probation officer named in the
order during such period, not being less than one
year, as may be specified therein, and may in such
supervision order, impose such conditions as it
deems necessary for the due supervision of the
offender.
(4) The court making a supervision order under
sub-section (3) shall require the offender, before he
is released, to enter into a bond, with or without
sureties, to observe the conditions specified in suchPage 6
6
order and such additional conditions with respect
to residence, abstention from intoxicants or any
other matter as the court may, having regard to the
particular circumstances, consider fit to impose for
preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order under
sub-section (3) shall explain to the offender the
terms and conditions of the order and shall
forthwith furnish one copy of the supervision order
to each of the offenders, the sureties, if any, and
the probation officer concerned.
9. Section 6 of the PO Act stipulates restrictions on
imprisonment of offenders under twenty-one years of age. It
is as under:-
“6. Restrictions on imprisonment of offenders
under twenty-one years of age.— (1) 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 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.
(2) For the purpose 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.”Page
7
7
We may note here that the appellate court has exercised
the power under Section 4 of the PO Act.
10. It is submitted by the learned counsel for the appellant
that as the respondents were convicted under Section 498-A
of IPC and Section 4 of the 1961 Act, the respondents could
not have been conferred the benefit of probation on good
conduct, for Section 4 of the 1961 Act prescribes a minimum
sentence. Additionally, it is also canvassed by him that even
if the said provision is applicable, the Court has not
considered the nature of offences and other requisite aspects
to extend the benefit under the said provision.
11. We shall deal with the first aspect, that is, whether
Section 4 of the 1961 Act prescribes a minimum sentence,
first. In Shyam Lal Verma (supra), a two-Judge Bench, after
referring to Ratan Lal Arora (supra), has held thus:-
“It is not in dispute that the issue raised in this
appeal has been considered by this Court in State
Through SP, New Delhi Versus Ratan lal Arora
(supra) wherein in similar circumstances, this Court
held that since Section 7 as well as Section 13 of
the Prevention of Corruption Act provide for a
minimum sentence of six months and one year
respectively in addition to the maximum sentences
as well as imposition of fine, in such circumstances
claim for granting relief under the Probation of
Offenders Act is not permissible. In other words, inPage 8
8
cases where a specific provision prescribed a
minimum sentence, the provisions of the Probation
Act cannot be invoked. Similar view has been
expressed in State Represented by Inspector of
Police, Pudukottai, T.N. Vs. A. Parthiban (supra).”
[Emphasis added]
12. In this regard, the learned counsel appearing for the
Union of India has commended us to a three-Judge Bench
Decision in Superintendent, Central Excise, Bangalore vs.
Bahubali4
wherein the Court was dealing with the case
where the respondent was convicted by the High Court under
Rule 126-P(2)(ii) of the Defence of India Rules which
prescribes a minimum sentence of six months. Be it stated,
the High Court had reversed the judgment of acquittal to one
of conviction but directed that the respondent therein be
released on probation of good conduct under Sections 3, 4
and 6 of the PO Act. Dealing with the applicability of the PO
Act, the Court scanned the anatomy of the Defence of India
Rules and the provisions of the PO Act and opined thus:-
“… It would also be seen that Section 6 of the
Probation of Offenders Act, 1958 puts a restriction
on the power of the court to award imprisonment
by enjoining on it not to sentence an offender to
imprisonment if he is under 21 years of age and
4 (1979) 2 SCC 279Page 9
9
has committed an offence punishable with imprisonment
but not with imprisonment for life except
where it is satisfied that having regard to the circumstances
of the case including the nature of the
offence and character of the offender it would not
be desirable to deal with him under Sections 3 and
4 of the Probation of Offenders Act, 1958. The incompatibility
between Sections 3, 4 and 6 of the
Probation of Offenders Act, 1958 and Rule 126-P(2)
(ii) of the DI Rules is, therefore, patent and does not
require an elaborate discussion. The view that the
aforesaid provisions of the Probation of Offenders
Act, 1958 are inconsistent with the provisions of
the DI Rules which cast an obligation on the court
to impose a minimum sentence of imprisonment
and fine is reinforced by Section 18 of the Probation
of Offenders Act, 1958 which saves the provisions
of (1) Section 31 of the Reformatory School
Act, 1897 (Act 8 of 1897), (2) sub-section (2) of Section
5 of the Prevention of Corruption Act, 1947
(Act 2 of 1947), (3) the Suppression of Immoral
Traffic in Women and Girls Act, 1956 (Act 104 of
1956) and (4) of any law in force in any State relating
to juvenile offenders or borstal schools, which
prescribe a minimum sentence.”
After so stating, the Court further proceeded to state
that:-
“The provisions of the Probation of Offenders Act,
1958, being, therefore, obviously inconsistent with
Rule 126-P(2)(ii) of the DI Rules under which the
minimum penalty of six months’ imprisonment and
fine has to be imposed, the former have to yield
place to the latter in view of Section 43 of the
Defence of India Act, 1962 which is later than the
Probation of Offenders Act, 1958 and embodies a
non obstante clause clearly overriding the
provisions of the enactments which contain
inconsistent provisions including those of the
Probation of Offenders Act to the extent ofPage 10
10
inconsistency. The result is that the provisions of
rules made and issued under the Defence of India
Act prescribing minimum punishment which are
manifestly inconsistent with the aforesaid provisions
of the Probation of Offenders Act are put on
par with the provisions of the enactments specified
therein so as to exclude them from applicability of
the Probation of Offenders Act.”
13. It is profitable to state here that the Court referred to the
decision in Arvind Mohan Sinha vs. Amulya Kumar
Biswas5 wherein it has been held thus:-
“The broad principle that punishment must be proportioned
to the offence is or ought to be of universal
application save where the statute bars the exercise
of judicial discretion either in awarding punishment
or in releasing an offender on probation in lieu
of sentencing him forthwith.”
14. At this juncture, we must state with promptitude that
the three-Judge Bench in Bahubali (supra) opined that the
applicability of the PO Act as has been held in Arvind Mohan
Sinha (supra) could not be taken aid of inasmuch as
attention of the Court was not seemed to have been invited in
the said case to Section 43 of the Defence of India Act, 1962
which contains a non obstante clause.
15. The three-Judge Bench while adverting to the concept of
“minimum sentence”, relied on the observations made in
5 (1974) 4 SCC 222Page 11
11
Bahubali (supra) which we have reproduced hereinabove, and
opined that:-
“The above observations also clearly show that
where there is a statute which bars the exercise of
judicial discretion in the matter of award of sentence,
the Probation of Offenders Act will have no
application or relevance. As Rule 126-P(2)(ii) of the
DI Rules manifestly bars the exercise of judicial discretion
in awarding punishment or in releasing an
offender on probation in lieu of sentencing him by
laying down a minimum sentence of imprisonment,
it has to prevail over the aforesaid provisions of the
Probation of Offenders Act, 1958 in view of Section
43 of the Defence of India Act, 1962 which is later
than the Probation of Offenders Act and has an
overriding effect.”
16. In Ratan Lal Arora (supra) the learned single Judge of
the Delhi High Court while upholding conviction of the
accused under the Prevention of Corruption Act, 1988 further
held him to be entitled to the benefits of Section 360 of the
Code of Criminal Code. The Court adverted to Section 7 and
Section 13 of the Prevention of Corruption Act which provide
for minimum sentence of six months and one year respectively
in addition to the maximum sentence as well as imposition of
fine. Reference was made to Section 28 that stipulates that
the provisions of the Act shall be in addition to and not in
derogation of any other law for the time being in force.
Reliance was placed on the decision in Bahubali (supra) whilePage 12
12
interpreting the said provision and relying on the authority in
Bahubali (supra) the Court ruled that Section 28 of the
Prevention of Corruption Act had a tenor of Section 43 of the
Defence of India Act. In that context, it observed:-
“Unlike the provisions contained in Section 5(2) proviso
of the old Act providing for imposition of a sentence
lesser than the minimum sentence of one year
therein for any “special reasons” to be recorded in
writing, the Act did not carry any such power to enable
the court concerned to show any leniency below
the minimum sentence stipulated. Consequently,
the learned Single Judge in the High Court
committed a grave error of law in extending the benefit
of probation even under the Code.”
17. The said principle has been reiterated in State
represented by Inspector of Police, Pudukottai, T.N. vs. A.
Parthiban6
.
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:-
6 (2006) 11 SC 473Page 13
13
“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, forPage 14
14
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.
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 444Page 15
15
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'. 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).”
22. Be it noted, in the said case, keeping in view the offence
under the Prevention of Food Adulteration Act, 1954, the
Court declined to confer the benefit under Section 4 of the PO
Act.
23. We have referred to the aforesaid authority to stress the
point that the Court before exercising the power under Section
4 of the PO Act has to keep in view the nature of offence and
the conditions incorporated under Section 4 of the PO Act. Be
it stated in Dalbir Singh vs. State of Haryana and others
AIR 2000 SC 1677
it has been held that Parliament has made it clear that only if
the Court forms the opinion that it is expedient to release the
convict on probation for the good conduct regard being had to
the circumstances of the case and one of the circumstances
which cannot be sidelined in forming the said opinion is “the
nature of the offence”. The Court has further opined that
though the discretion as been vested in the court to decide
when and how the court should form such opinion, yet the
provision itself provides sufficient indication that releasing the
convicted person on probation of good conduct must appear to
the Court to be expedient. Explaining the word “expedient”,
the Court held thus:-
“9. The word “expedient” had been thoughtfully employed
by Parliament in the section so as to mean it
as “apt and suitable to the end in view”. In Black’s
Law Dictionary the word expedient is defined as
“suitable and appropriate for accomplishment of a
specified object” besides the other meaning referred
to earlier. In State of Gujarat v. Jamnadas G. Pabri10
a three-Judge Bench of this Court has considered
the word “expedient”. Learned Judges have observed
in para 21 thus:
“Again, the word ‘expedient’ used in this
provisions, has several shades of meaning. In
one dictionary sense, ‘expedient’ (adj.) means
‘apt and suitable to the end in view’, ‘practical
and efficient’; ‘politic’; ‘profitable’; ‘advisable’, ‘fit,
10 AIR 1974 SC 2233
proper and suitable to the circumstances of the
case’. In another shade, it means a device ‘characterised
by mere utility rather than principle,
conducive to special advantage rather than to
what is universally right’ (see Webster’s New International
Dictionary).”
10. It was then held that the court must construe
the said word in keeping with the context and object
of the provision in its widest amplitude. Here the
word “expedient” is used in Section 4 of the PO Act
in the context of casting a duty on the court to take
into account “the circumstances of the case including
the nature of the offence…”. This means Section
4 can be resorted to when the court considers the
circumstances of the case, particularly the nature of
the offence, and the court forms its opinion that it is
suitable and appropriate for accomplishing a specified
object that the offender can be released on probation
of good conduct.”
24. We have highlighted these aspects for the guidance of the
appellate court as it has exercised the jurisdiction in a
perfunctory manner and we are obligated to say that the High
Court should have been well advised to rectify the error.
25. 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.
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.
26. Resultantly, the appeal is allowed, the judgment and
order passed by the High Court and the appellate court are set
aside and the matter is remitted to the appellate court for
disposal in accordance with law.
…...........................J
.
(Dipak Misra)
..............................J.
(Amitava Roy)
New Delhi;
November 28, 2016.
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