Supreme Court on the Probation of Offenders Act, 1958

 

Introduction

 

Today we will discuss another latest judicial pronouncement by the Hon’ble Supreme Court of India, Lakhvir Singh Etc. v. State of Punjab & Another, 2021 SCC OnLineSC 25, wherein the Probation of Offenders Act, 1958 (in short, “Act of 1958”) was discussed. The issued raised here was also discussed incidentally in an earlier post written by me.

 

Facts in Brief

 

The Appellants were youngsters (19-20 years of age) at the time of commission of offence under Section 397 (Robbery, or dacoity, with attempt to cause death or grievous hurt) of the Indian Penal Code, 1860 (in short, “IPC”). They were convicted under the said provisions and sentenced to undergo Rigorous Imprisonment of 7 years each.

 

Section 397 of IPC reads as under: -

 

“If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”

 

Thus, the minimum sentence prescribed under Section 397 is 7 years. Before the Hon’ble Supreme Court of India, it was contended by the Appellants that they should be given the benefit of Probation of Offenders Act as they have already served close to half of their respective sentences.

 

Scheme of Probation of Offenders Act and Observations by the Court

 

The Court inaugurated its reasoning by discussing According to the Statement of Objects and Reasons of the said Act, it is an Act to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, the emphasis is on reformation and rehabilitation of offenders as useful members of the society without subjecting them to the deleterious and negative effects of a jail life.

 

Further, the Court took recourse to the case of Ramji Missar v. State of Bihar, AIR 1963 SC 1088, wherein it was held that Section 6 of the Act of 1958 provides a restriction on imprisonment of offenders who were under twenty-one (21) years of age on the date of sentencing and not on the date of commission of offence. If the Court thinks otherwise and thinks that there is a need to imprison such persons, it shall have to call for a Report from the Probation Officer. According to the Court, since at the time of sentencing, the offenders in the present case had crossed the age of 21 years, therefore, it will not be possible to give them the benefit of Section 6.

 

Thereafter the Court perused Section 4 of the Probation of Offenders Act that provides for power of the Court to release certain offenders on probation of good conduct. Section 4 (1) of the Act of 1958 reads as under: -

 

“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:

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.”

 

Hence, where the Court after considering the totality of circumstances of a case thinks that an offender should be released on probation of conduct, then it may do so by imposing the above-stated conditions.

 

The Court also discussed the case of Ishar Das v. State of Punjab, (1973) 2 SCC 65, wherein it was observed that the non-obstante clause in Section 4 reflects the legislative intention to have an overriding effect over other provisions of law and Probation of Offenders Act being a beneficial legislation should be so construed. The case of CCE v. Bahubali, (1979) 2 SCC 279, was also discussed wherein it was opined that the Probation of Offenders Act may not apply to cases wherein any special legislation has a non-obstante clause and provides for a mandatory minimum sentence.

 

Held

 

Upon perusing the discussed case-laws and legal provisions, the Court came to the conclusion that the offenders have been convicted under the Indian Penal Code, 1860, which is not a special legislation and though minimum sentence is prescribed under Section 397 of IPC, yet the totality of facts and circumstances of the present has to be considered such as: -

 

1. The offenders were 19-20 years of age at the time of commission of offence.

2. The offenders have already served around half of their sentences i.e., around 3.5 years.

3. The victim in the present case appears to have forgiven the offenders.

4. There is no adverse report against the offenders about their conduct in the jail.

 

Therefore, the Court was of the view that the present case is a fit case wherein the benefit of probation can be extended to the Appellants/Offenders in light of Section 4 and relevant judicial pronouncements. Hence, the Appellants were released with an undertaking that they shall maintain peace and good behaviour for the remaining part of their sentence.

 

Concluding Remarks

 

I concur with the reasoning of this judgment as the legislative intent of Section 6 makes it clear that its benefit could be extended where the offenders are less than 21 years of age at the time of sentencing and not at the time of commission of offence. Yet the Court exercised its discretion and beneficially interpreted Section 4 of the Probation of Offenders Act and considering the facts and circumstances, gave its benefit to the Appellants/Offenders. The purpose of criminal justice system is to reform the offenders and not adopt a retributive approach wherein simply for the sake of sentencing, offenders are sentenced harshly.