PETITIONER:
MOHAMAD AZlZ MOHAMED NASIR
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT04/09/1975
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
BEG, M. HAMEEDULLAH
SARKARIA, RANJIT SINGH
CITATION:
1976 AIR 730 1976 SCR (3) 663
1976 SCC (1) 657
ACT:
Probation of offenders Act, 1958-S. 6-Scope of.
HEADNOTE:
On the question whether the provisions of the Probation
of offenders Act 1958 should have been applied in this case,
Allowing the appeal,
^
HELD: (1) Even though the point relating to the
applicability of s.6 was not raised before the Presidency
Magistrate or the High Court, this Court is bound to take
notice of the provisions of that section and give its
benefit to the appellant, particularly since it is a section
which is intended for the benefit of juvenile delinquents
reflecting the anxiety of the Legislature to protect them
from contact or association with hardened criminals in jails
and retrieve them from a life of crime and rehabilitate them
is responsible and useful members of society. [665 B-C]
(2) Section 6 lays down an injunction not to impose a
sentence of imprisonment on a reason who is under 21 years
of' age and is found guilty of having committed an offence
punishable with imprisonment other the that for if unless it
is satisfied that it would not be desirable to deal with him
under s. 3 or s. 4. 'This inhibition on the power of the
court to impose a sentence of imprisonment applies not only
at the state of trial but also at the stage of "High, Court
or any other court when the case comes before it in appeal
or revision" s. 11 (i) [664-H]
In the instant case the appellant was below 21 years of
age. The appellant was at one time a well known child film
actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil ways.
The offence of theft of two Sarees, though it could not be
lightly ignored. was of minor. character and this was the
first offence of the appellant. It Count be said that it
would not be desirable to deal with the appellant under s. 3
or s. 4 of the Act. [665 G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
129 of 1971 .
Appeal by Special Leave from the Judgment and order
dated the 4th March, 1971 of the Bombay High Court at Bombay
in Criminal Appeal No. 1502 of 1969.
R B. Datar and Rajen Yash Paul, for the Appellant.
M. N Shroff, for the Respondent.
The Judgment of the Court was delivered by-
BHAGWATI, J. The appellant and one Mohd. Yusuf Gulam
Mohd. were charged for an offence under s. 379 read with s
34 of the Indian Penal Code for snatching two sarees from
one Govind whilst he was carrying them from the show of his
master to that of a washer and dyer. The learned Presidency
Magistrate, who tried the case, accepted the prosecution
evidence and found the appellant and Mohd. Yusuf Gulam Mohd.
guilty of the offence under s. 379 read with s. 34 and
664
Sentenced each of their to suffer rigorous imprisonment for
six months. It does not appear from the judgment of the
learned Presidency Magistrate that, though the appellant was
only seventeen years and three months old at the date of the
offence and the offence was not punishable with imprisonment
for life, the attention of the learned presidency Magistrate
was invited to the provisions of s. 6 of the Probation of
offenders Act, 1958. The appellant preferred an appeal
against the order of conviction and sentence to the High
Court of p Bombay but the appeal was unsuccessful. The High
Court took the same view of the evidence as the learned
Presidency Magistrate and confirmed the conviction of the
appellant under s. 379 read with s. 34. So far as the
question of sentence was concerned, a submission was made on
behalf of the appellant that since he was a young boy of
about seventeen years and three months and this was his
first offence, leniency should be shown tow him. But the
High Court r observed that age alone was not sufficient to
invoke the mercy of the Court and the appellant had not done
anything since the date of the offence to deserve the mercy
of the Court and it did not, therefore, see any reason to
interfere with the sentence of imprisonment passed against
the appellant. It appears that once again the provisions of
s. 6 of the Probation of offenders Act, 1958 were not
specifically brought to the notice of the High Court and the
sentence of imprisonment was maintained by the High Court
without applying its mind to those provisions. Hence the
appellant preferred a petition for special leave to this
Court and on that petition, this Court granted special leave
limited to the question “whether the provisions of the
Probation of offenders Act should have been applied in the
case”.
We are concerned in this appeal with s. 6 of the
Probation of offenders Act, 1958, for it is only under that
section that the appellant claims the benefit of the
provisions contained in the Act. Subsection (1) of s. 6, on
a plain grammatical reading of its language, provides that
when any person under twenty-one years 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 impose any sentence of
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
665
him under s. 3 or s. 4. This inhibition on the power of the
Court to impose a sentence of imprisonment applies not only
at the state of trial court but also at the stage “High
court or any other Court when the case comes before it on
appeal or in revision.’. Vide s. 11, sub-s. (1) of the Act.
It is, therefore, obvious that even though the point
relating to the applicability of s. 6 was not raised before
the learned Presidency Magistrate or the High Court, this
Court is bound to take notice of the provisions of that
section and give its benefit to the appellant, particularly
since it is a section which is intended for the benefit of
juvenile delinquents, reflecting the anxiety of the
Legislature to protect them from contact or association with
hardened criminals in jails and retrieve them from a life of
crime and rehabilitate them as responsible and useful
members of society.
Here, we find that whatever date be taken as the
relevant date for determining the applicability of s. 6-
whether the date of the offence or the date of the judgment
of the learned Presidency Magistrate or the date of the
judgment of the High Court-the appellant was below twenty
one years age. The offence of which he is found guilty is an
offence under s. 379 read with s. 34 and it is clearly an
offence punishable with imprisonment but not with
imprisonment for life. The conditions requisite for the
applicability of s. 6 are, therefore, plainly satisfied and
under s. 6, Sub-s. (1) it is not competent to the Court to
impose ant sentence of imprisonment on the appellant, unless
the Court is satisfied that, having regard to the
circumstances of the case, including the nature of the
offence and the character of the appellant, it would not be
desirable to deal with him under s. 3 or s. 4. It is true
that sub-s. (2) of s. 6 requires that for the purpose of
satisfying itself whether it would not be desirable to deal
with the appellant under s. 3 or s. 4, the Court is required
to call for a report from the Probation officer and consider
the report, if any, but we do not think it necessary in the
present case to call for any report from the Probation
officer nor to remand the case to the learned Presidency
Magistrate for passing an appropriate order after calling
for a report from the Probation officer and considering it.
We have on record the antecedent history giving the
background of the appellant. The appellant was at one time a
well known child film actor and he actually won several
awards for acting in films. It appears that at some
subsequent stage he fell in bad company and took to evil
ways The offence which he is convicted is, no doubt, an
offence as theft which cannot be lightly ignored, but it is
comparatively of a minor characters in that only two sarees
were snatched away from the hands of Govind, perhaps under
the stress of economic necessity. Moreover, this is a false
offence of the appellant. We are, therefore, not at all
satisfied
12-L925SupCI/75
666
that it would not be desirable to deal with the appellant
under s. 3 or s. 4 and consequently, the sentence of
imprisonment passed on the appellant must be set aside.
We accordingly set aside the sentence of imprisonment
passed on the appellant and direct that he be released on
his entering into a bond wit one surety in the sum of Rs.
500/ to appear in the Court of the Presidency Magistrate to
receive sentence, whenever called upon to do so within a
period of six months and during that period to keep the
peace and be of good behaviour. The learned Presidency
Magistrate is directed to take the necessary bond from the
appellant and the necessary surety bond from a surety to his
satisfaction. The appellant will continue on bail till such
time as these directions are carried out, after which the
bail bond will stand canceled.
P.B.R. Appeal allowed.
667