LAKHVIR SINGH ETC versus THE STATE OF PUNJAB & ANR. on 19 January 2021

[2021] 1 S.C.R. 269

LAKHVIR SINGH ETC.

v.

THE STATE OF PUNJAB & ANR.

(Criminal Appeal Nos. 47-48 of 2021)

JANUARY 19, 2021

[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]

Probation of Offenders Act, 1958: Object of legislation –Held: To give the benefit of release of offenders on probation ofgood conduct instead of sentencing them to imprisonment – Thus,increasing emphasis on the reformation and rehabilitation ofoffenders as useful and self-reliant members of society withoutsubjecting them to deleterious effects of jail life is what is sought tobe subserved.

Probation of Offenders Act, 1958: s.6 – Appellants wereconvicted by trial court for offence under s.397 IPC and sentencedto undergo rigorous imprisonment of seven years each – High Courtdismissed the appeal against the conviction by trial court –Appellants filed special leave petition and annexed compromise deedarrived at between the complainant and the appellants in termswhereof the complainant had stated that he did not want to pursueany action against the appellants and has no objection to theirrelease on bail on acquittal – Appellants have already served about50% of their sentence while in custody – The prosecution howeverobjected that the minimum sentence provided by the statute unders.397 IPC is seven years and the same cannot be reduced belowthat period – On this submission, the appellants-convicts soughtbenefit under the Probation of Offenders Act – Held: Appellantswere below 21 years of age as on the date of offence – The benefitof probation under the Act is not excluded by the provisions of themandatory minimum sentence under s.397 of IPC, the offence inthe present case – Appellants have not served out the minimumsentence of seven years though they have served about half thesentences – They were aged under 19 and 21 years of age as on thedate of offence but not on the date of sentence – The redeemingfeature in their case is that the person who suffered, appears to

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Ahave forgiven them, possibly with the passage of time – No adversereport has been brought to notice against them about their conductin jail – Fit case to extend benefit of probation to the appellantsunder the Act in view of the provisions of s.4 of the Act on completionof half the sentence – Appellants are released on probation of goodconduct under s.4 of the Act on their completion of half the sentenceBand on their entering into a bond with two sureties each to ensurethat they will maintain peace and good behaviour for the remainingpart of their sentence, failing which they can be called upon toserve that part of the sentence – Penal Code, 1860 – s.397.

Probation of Offenders Act, 1958: s.4 – Essential feature ofC– Held: “notwithstanding” contained in s.4 permits, despite anythingcontained in any other law for the time being in force, the court torelease a person on bond, with or without sureties, for a period ofthree years instead of sentencing him in order to ensure that hekeeps peace and good behaviour – In this regard, under sub-sectionD(2), before making any order under sub-section (1), the court isrequired to take into consideration the report, if any, of the probationofficer concerned in relation to the case.

Probation of Offenders Act, 1958: s.6 – Determining factorswhile giving benefit under – Held: The relevant aspects while givingEbenefit under s.6 of the Act are: the nature of offence, the characterof the offender, and the surrounding circumstances as recorded inthe probation officer’s report.

Probation of Offenders Act, 1958: s.4 and s.6 – Distinctionbetween – Held: s.4 is distinct from s.6 as it is discretionary in natureFwhile s.6 provides that a court “must not” sentence a person underthe age of 21 years to imprisonment unless sufficient reasons forthe same are recorded, based on due consideration of the probationofficer’s report.

Conclusion

Probation of Offenders Act, 1958: s.6 – Applicability of –GHeld: Appellants were under 21 years of age on the date of theoffence and not on the date of conviction, s.6 would not come totheir aid.

Disposing of the appeals, the Court

HELD: 1. The Statement of Objects and Reasons of theHsaid Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders onprobation of good conduct instead of sentencing them toimprisonment. Thus, increasing emphasis on the reformationand rehabilitation of offenders as useful and self-reliant membersof society without subjecting them to the deleterious effects ofjail life is what is sought to be subserved. Section 6 of the saidAct, as per its own title, provides for restrictions on imprisonmentof offenders under twenty-one years of age. [Para 6][275-B-D]

State of Madhya Pradesh v. Vikram Das (2019) 4 SCC125: [2019] 3 SCR 691 – relied on.

2. The rationale is that the underlying purpose of theprovision being reformative – Section 6 being a special provisionenacted to prevent the confinement of young persons under 21years of age in jail, to protect them from the pernicious influenceof hardened criminals. In the facts of the present case, theappellants are stated to be below 21 years of age as on the dateof offence. The sentencing order was passed by the trial Courtnoting that the appellants committed an offence of serious natureagainst a poor person and were thus disentitled from the benefitsunder the said Act or under Section 360 Cr.P.C. [Para 7][276-D-E]

3. In the case of the appellants, Section 3 would have noapplication taking into consideration nature of offence. However,Section 4 could come to the aid of the appellants as the offencecommitted, of which they have been found guilty, is not punishablewith death or imprisonment for life. However, the trial courtopined against the appellants. Also the “notwithstanding”contained in Section 4 permits, despite anything contained in anyother law for the time being in force, the court to release a personon bond, with or without sureties, for a period of 3 years insteadof sentencing him in order to ensure that he keeps peace andgood behaviour. In this regard, under sub-section (2), beforemaking any order under sub-section (1), the court is required totake into consideration the report, if any, of the probation officerconcerned in relation to the case. [Para 8][278-D-G]

Satyabhan Kishore v. State of Bihar (1972) 3 SCC 350

– relied on.

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A4. Section 4 is distinct from Section 6 as it is discretionaryin nature while Section 6 provides that a court “must not”sentence a person under the age of 21 years to imprisonmentunless sufficient reasons for the same are recorded, based ondue consideration of the probation officer’s report. The relevantaspects while giving benefit under Section 6 of the Act are: theBnature of offence, the character of the offender, and thesurrounding circumstances as recorded in the probation officer’sreport. [Para 9][278-G-H; 279-A]

5. The appellants who were under 21 years of age on thedate of the offence and not on the date of conviction, Section 6Cwould not come to their aid. The benefit of probation under thesaid Act is not excluded by the provisions of the mandatoryminimum sentence under Section 397 of IPC. [Paras 10, 13][279-A-B; 280-C-D]

Ramji Missar vs. State of Bihar AIR 1963 SC 1088 :D[1963] Suppl. SCR 745 ; Ishar Das vs. State of Punjab(1973) 2 SCC 65 : [1972] 3 SCR 312 ; Joginder Singhvs. State of Punjab ILR (1981) P&H 1 – relied on.

6. The facts of the present case are that the appellants havenot served out the minimum sentence of 7 years though theyEhave served about half the sentences. They were aged under 19& 21 years of age as on the date of offence but not on the date ofsentence. The redeeming feature in their case is that the personwho suffered, appears to have forgiven them, possibly with thepassage of time. No adverse report has been brought to noticeFagainst them about their conduct in jail. This is a fit case that thebenefit of probation can be extended to the appellants under thesaid act in view of the provisions of Section 4 of the said Act oncompletion of half the sentence. The appellants are released onprobation of good conduct under Section 4 of the said Act ontheir completion of half the sentence and on their entering into aGbond with two sureties each to ensure that they maintain peaceand good behaviour for the remaining part of their sentence, failingwhich they can be called upon to serve that part of the sentence.[Paras 14, 15][280-E-G; 281-A]

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Masarullah v. State of Tamil Nadu (1982) 3 SCC 458 ;Sudesh Kumar v. State of Uttarakhand (2008) 3 SCC111 : [2008] 2 SCR 146 ; CCE vs. Bahubali (1979) 2SCC 279 : [1979] 1 SCR 1104 ; State vs. Ratan LalArora, (2004) 4 SCC 590 : [2004] 1 Suppl. SCR 631– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 47-48 of 2021.

From the Judgment and Order dated 24.10.2019 of the High Courtof Punjab & Haryana at Chandigarh in CRA-S-372-SB-2005 & CRA-S–717-SB-2005.

Ms. Isha Aggarwal, Anirudh Sanganeria, Ms. Jaspreet Gogia,Karanvir Gogia, Ms. Shivangi Singhal, Pardhuman Garg, Abhishek KumarSingh, Advs. for the appearing parties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The appellants were youngsters aged 20 and 19 years whenthey fell foul of the law. On 14.02.2003, at around 7.30 p.m., theappellants alongwith co-accused Gurpreet Singh[1] approached thecomplainant – PW1 to hire a taxi to go to a village. Enroute, when attheir behest the car was stopped, Gurpreet Singh caught hold of thecomplainant and the appellant Jagdeep Singh took a dagger and inflicted 1 He faced trial before a Juvenile Court.

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A6-7 injuries on PW1’s forehead. Appellant Lakhvir Singh inflicted 2-3injuries on his abdomen and 1 injury on his neck using a knife. Thecomplainant was thrown out of his taxi and the three people fled withthe taxi. In pursuance to the reporting of the crime by complainant, anFIR was registered on 15.02.2003 under Section 382 and Section 307read with Section 34 IPC. Knife and dagger were recovered alongwithBthe taxi and the trial Court framed charges under Section 397 IPC. Posttrial, the appellants were convicted by the trial Court vide judgment dated8.1.2005 and sentenced to undergo Rigorous Imprisonment of 7 yearseach.

2. The appeal preferred by the appellants has been dismissed byCthe impugned judgment dated 24.10.2019.

3. The appellants approached this Court by a special leave petition.Annexed thereto, the compromise deed arrived at between thecomplainant Amrik Singh and the appellants before us, in terms whereofthe complainant has stated that he did not want to pursue any actionDagainst the appellants and has no objection to their release on bail oracquittal. The appellants have already served about 50% of their sentencewhile in custody.

4. On 3.12.2020, this Court while recording the aforesaid plea,issued notice on the SLP and on the prayer for interim relief of bail whileEsimultaneously impleading the complainant as the 2[nd] respondent. On18.12.2020, counsel for the State and respondent no. 2 enteredappearance and counsel for respondent no.2 confirmed that the disputehad been amicably resolved. However, counsel for respondent no.1submitted that the minimum sentence provided by the statute underFSection 397 is 7 years and the same cannot be reduced below that period.On this submission, learned counsel for the appellants sought benefitunder the Probation of Offenders Act, 1958, hereinafter referred to as‘the Act’. It is on the limited conspectus of the aforesaid aspect that on11.01.2021, we granted leave and reserved the judgment upon conclusionof arguments and the parties having filed their respective synopsis.G

The legal position

5. The plea of the learned counsel for the State respondent no.1 isbased on the judgment of this Court in the case of State of MadhyaPradesh v. Vikram Das[2]opining that the courts cannot impose less thanH2 (2019) 4 SCC 125.

the minimum sentence prescribed by the statute. He thus seeks continuingdetention of the appellants to serve out the remaining sentence. On theother hand, learned counsel for the appellants has sought the benefitunder the said Act in view of the age of the appellants when the offencewas committed.

6. We may notice that the Statement of Objects and Reasons ofthe said Act explains the rationale for the enactment and its amendments:to give the benefit of release of offenders on probation of good conductinstead of sentencing them to imprisonment. Thus, increasing emphasison the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleteriouseffects of jail life is what is sought to be subserved. Section 6 of the saidAct, as per its own title, provides for restrictions on imprisonment ofoffenders under twenty-one years of age. The said provision reads asunder:

“6. Restrictions on imprisonment of offenders under twenty-one years of age.—(1) When any person under twenty-one yearsof age is found guilty of having committed an offence punishablewith imprisonment (but not with imprisonment for life), the courtby which the person is found guilty shall not sentence him toimprisonment unless it is satisfied that, having regard to thecircumstances of the case including the nature of the offence andthe character of the offender, it would not be desirable to dealwith him under section 3 or section 4, and if the court passes anysentence of imprisonment on the offender, it shall record its reasonsfor doing so.

(2) For the purpose of satisfying itself whether it would not bedesirable to deal under section 3 or section 4 with an offenderreferred to in sub-section (1), the court shall call for a report fromthe probation officer and consider the report, if any, and any otherinformation available to it relating to the character and physicaland mental condition of the offender.”

7. A view was taken by a 4-judge bench of this Court in RamjiMissar vs. State of Bihar,[3]while seeking to apply the said provision tooffenders who were under the age of 21 years on the date of sentencingand not on the date of commission of offence. In Masarullah v. State 3 AIR 1963 SC 1088.

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Aof Tamil Nadu[4] there are observations to the effect that “in case of anoffender under the age of twenty one years on the date of commissionof the offence, the Court is expected ordinarily to give benefit of theprovisions of the Act and there is an embargo on the power of the Courtto award sentence unless the Court considers otherwise, ‘having regardto the circumstances of the case including nature of the offence and theBcharacter of the offender’, and reasons for awarding sentence have tobe recorded. Considerations relevant to the adjudication of this aspectare, circumstances of the case, nature- of the offence and character ofthe offender. It is, therefore, necessary to keep in view the afore-mentioned three aspects while deciding whether the appellant should beCgranted the benefit of the provisions of the Act.” But in the subsequentjudgment in Sudesh Kumar v. State of Uttarakhand[5] the judgment ofthe four Judge Bench in Ramji Missar (supra) was noted as possiblyhaving escaped attention. Thus, the legal position was clarified as theone being reflected in Ramji Missar (supra). The rationale is that theunderlying purpose of the provision being reformative – Section 6 beingDa special provision enacted to prevent the confinement of young personsunder 21 years of age in jail, to protect them from the pernicious influenceof hardened criminals.[6] In the facts of the present case, the appellantsare stated to be below 21 years of age as on the date of offence. Thesentencing order was passed by the trial Court noting that the appellantsEcommitted an offence of serious nature against a poor person and werethus disentitled from the benefits under the said Act or under Section360 Cr.P.C.

8. In Satyabhan Kishore v. State of Bihar,[7]this Court had notedthe distinction between Section 6, which is in the nature of an injunctionFfor courts to follow as distinct from Section 3 or 4 of the Act; which arediscretionary in nature. The relevant provisions read as under:

“3. Power of court to release certain offenders afteradmonition.—When any person is found guilty of havingcommitted an offence punishable under section 379 or sectionG380 or section 381 or section 404 or section 420 of the IndianPenal Code, (45 of 1860) or any offence punishable withimprisonment for not more than two years, or with fine, or with 4 (1982) 3 SCC 458

5 (2008) 3 SCC 1116 Ishar Das v. State of Punjab, (1973) 2 SCC 65, pr.7H7 (1972) 3 SCC 350.

LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.[SANJAY KISHAN KAUL, J.]

both, under the Indian Penal Code or any other law, and no previousconviction is proved against him and the court by which the personis found guilty is of opinion that, having regard to the circumstancesof the case including the nature of the offence, and the characterof the offender, it is expedient so to do, then, notwithstandinganything contained in any other law for the time being in force,the court may, instead of sentencing him to any punishment orreleasing him on probation of good conduct under section 4, releasehim after due admonition.

Explanation.—For the purposes of this section, previousconviction against a person shall include any previous order madeagainst him under this section or section 4.

4. Power of court to release certain offenders onprobation of good conduct.—(1) When any person is foundguilty of having committed an offence not punishable with deathor imprisonment for life and the court by which the person isfound guilty is of opinion that, having regard to the circumstancesof the case including the nature of the offence and the characterof the offender, it is expedient to release him on probation of goodconduct, then, notwithstanding anything contained in any otherlaw for the time being in force, the court may, instead of sentencinghim at once to any punishment direct that he be released on hisentering into a bond, with or without sureties, to appear and receivesentence when called upon during such period, not exceeding threeyears, as the court may direct, and in the meantime to keep thepeace and be of good behaviour:

Provided that the court shall not direct such release of anoffender unless it is satisfied that the offender or his surety, if any,has a fixed place of abode or regular occupation in the place overwhich the court exercises jurisdiction or in which the offender islikely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the courtshall take into consideration the report, if any, of the probationofficer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the courtmay, if it is of opinion that in the interests of the offender and ofthe public it is expedient so to do, in addition pass a supervision AB

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order directing that the offender shall remain under the supervisionof a probation officer named in the order during such period, notbeing less than one year, as may be specified therein, and may insuch supervision order impose such conditions as it deemsnecessary for the due supervision of the offender.

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B(4) The court making a supervision order under sub-section(3) shall require the offender, before he is released, to enter into abond, with or without sureties, to observe the conditions specifiedin such order and such additional conditions with respect toresidence, abstention from intoxicants or any other matter as thecourt may, having regard to the particular circumstances, considerCfit to impose for preventing a repetition of the same offence or acommission 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 theorder and shall forthwith furnish one copy of the supervision orderDto each of the offenders, the sureties, if any, and the probationofficer concerned.”

In the case of the appellants, Section 3 would have no applicationtaking into consideration nature of offence. However, Section 4 couldcome to the aid of the appellants as the offence committed, of whichEthey have been found guilty, is not punishable with death or imprisonmentfor life. However, the trial court opined against the appellants. We mayalso note that the “notwithstanding” contained in Section 4 permits, despiteanything contained in any other law for the time being in force, the courtto release a person on bond, with or without sureties, for a period of 3Fyears instead of sentencing him in order to ensure that he keeps peaceand good behaviour. In this regard, under sub-section (2), before makingany order under sub-section (1), the court is required to take intoconsideration the report, if any, of the probation officer concerned inrelation to the case.

G9. We may note that the aforesaid is distinct from Section 6 as itis discretionary in nature while Section 6 provides that a court “mustnot” sentence a person under the age of 21 years to imprisonment unlesssufficient reasons for the same are recorded, based on due considerationof the probation officer’s report. The relevant aspects while giving benefitunder Section 6 of the Act are: the nature of offence, the character ofH

the offender, and the surrounding circumstances as recorded in theprobation officer’s report.[8]

10. We may notice that since we are concerned with the appellantswho were under 21 years of age on the date of the offence and not onthe date of conviction, Section 6 would not come to their aid. In asubsequent judgment of this Court[9], it was noted that in Masarullah(supra), this Court had calculated the age of the convict as on the dateof commission of the offence incorrectly and there has been no discussionof the potential tension between grant of probation under the Act andthe mandatory minimum sentence of 7 years under Section 397 of theIPC.

11. The legal position insofar as invocation of Section 4 isconcerned has been analysed in Ishar Das vs. State ofPunjab[10]elucidating that non-obstante clause in Section 4 of the Actreflected the legislative intent that provisions of the Act have effectnotwithstanding any other law in force at that time. The observation inRamji Missar (supra) was cited with approval to the effect that in caseof any ambiguity, the beneficial provisions of the Act should receivewide interpretation and should not be read in a restricted sense.

12. The aforesaid aspect is confirmed by the wording of the saidAct which reads as under:

“18. Saving of operation of certain enactments. —Nothing inthis Act shall affect the provisions of section 31 of the ReformatorySchools Act, 1897 (8 of 1897), or sub-section (2) of section 5 ofthe Prevention of Corruption Act, 1947 (2 of 1947), or of any lawin force in any State relating to juvenile offenders or BorstalSchools.”

13. Even though, Section 5(2) of the Prevention of CorruptionAct, 1947 (hereinafter referred to as ‘the PC Act’) prescribes a minimumsentence of imprisonment for not less than 1 year, an exception wascarved out keeping in mind the application of the Act. In IsharDas(supra), this Court noted that if the object of the legislature was thatthe Act does not apply to all cases where a minimum sentence ofimprisonment is prescribed, there was no reason to specifically provide 8 Masarullah vs. State of Tamil Nadu, 1982 3 SCC 458, pr.6.

9 Sudesh Kumar vs. State of Uttarakhand, (2008) 3 SCC 111.

10 (1973) 2 SCC 65.

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Aan exception for Section 5(2) of the PC Act. The fact that Section 18 ofthe Act does not include any other such offences where a mandatoryminimum sentence has been prescribed suggests that the Act may beinvoked in such other offences. A more nuanced interpretation on thisaspect was given in CCE vs. Bahubali[11]. It was opined that the Actmay not apply in cases where a specific law enacted after 1958 prescribesBa mandatory minimum sentence, and the law contains a non-obstanteclause. Thus, the benefits of the Act did not apply in case of mandatoryminimum sentences prescribed by special legislation enacted after theAct.[12] It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence lessCthan the mandatory sentence prescribed by the statute. We are of theview that the corollary to the aforesaid legal decisions ends with aconclusion that the benefit of probation under the said Act is not excludedby the provisions of the mandatory minimum sentence under Section397 of IPC, the offence in the present case. In fact, the observationmade in Joginder Singh vs. State of Punjab[13] are in the same context.D

The factual position

The factual position

14. The facts of the present case are that the appellants have notserved out the minimum sentence of 7 years though they have servedabout half the sentences. They were aged under 19 & 21 years of ageEas on the date of offence but not on the date of sentence. The redeemingfeature in their case is that the person who suffered, appears to haveforgiven them, possibly with the passage of time. There is no adversereport against them about their conduct in jail otherwise the same wouldhave been brought to our notice by learned counsel for the State. Facedwith the aforesaid legal position, this is a fit case that the benefit ofFprobation can be extended to the appellants under the said act in view ofthe provisions of Section 4 of the said Act on completion of half thesentence.

15. We, thus, release the appellants on probation of good conductunder Section 4 of the said Act on their completion of half the sentenceGand on their entering into a bond with two sureties each to ensure thatthey maintain peace and good behaviour for the remaining part of their 11 (1979) 2 SCC 279.

12 State vs. Ratan Lal Arora, (2004) 4 SCC 590.H13 ILR (1981) P&H 1

LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.[SANJAY KISHAN KAUL, J.]

sentence, failing which they can be called upon to serve that part of thesentence.

16. The appeals are disposed of in the aforesaid terms leaving theparties to bear their own costs.

Devika Gujral

Appeals diposed of.

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