S. 6 of Probation of Offenders Act, 1958 is mandatory in nature, which acts as an injunction for Courts to follow; Supreme Court clarifies legal position 

Supreme Court: The Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., has observed that Section 6 of Probation of Offenders Act, 1958 leaves no discretion to the Court as it provides,

“A Court ‘must not’ sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report.”

The appellants were youngsters, aged about 20 and 19 years when they attacked the complainant with dagger and knife and inflicted 11-12 injuries on his forehead, abdomen and neck. The complainant was thrown out of his taxi and the appellants fled with the taxi. In the trial, the appellants were convicted by the Trial Court and sentenced of Rigorous Imprisonment for 7 years was imposed on each of them. The instant special leave petition was filed to challenge the dismissal of their appeal against the Trial Court’s findings.

Contention before the Court was a compromise deed was arrived at between the complainant and the appellants, whereof the complainant had stated that he did not want to pursue any action against the appellants and had no objection to their release on bail or acquittal. However, counsel for the State submitted that the minimum sentence provided by the statute under Section 397 of IPC was 7 years and the same cannot be reduced below that period; to which the appellants sought benefit under Probation of Offenders Act, 1958.

Applicability of Probation of Offenders Act, 1958: Analysis

The Court observed that, statement of Objects and Reasons of the Act explain the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be sub served. Section 6 of the Act, as per its own title, has provided for restrictions on imprisonment of offenders under twenty-one years of age. The said provision reads 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.

Reliance was placed by the Court on Masarullah v. State of Tamil Nadu, (1982) 3 SCC 485, wherein observations were made that “in case of an offender under the age of twenty one years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, ‘having regard to the circumstances of the case including nature of the offence and the character of the offender”. The Court stated, “the underlying purpose of the provision being reformative and Section 6 being a special provision, it was enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals. The Bench, while citing Ishar Das v. State of Punjab, (1973) 2 SCC 65, reiterated that non-obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. It was further noticed that the fact that Section 18 of the Act did not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences.

The Bench concluded that the benefit of probation under the said Act was not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC. Considering the facts that the appellants had served about half of their sentence and the complainant had forgiven them, also that there was no adverse report against the appellants about their conduct in jail, the Court held, it was a fit case that the benefit of probation could be extended to the appellants. Thus, the appellants were ordered to be released on probation of good conduct on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour. [Lakhvir Singh v. State of Punjab, 2021 SCC OnLine SC 25, decided on 19-01-2021]

*Justice Sanjay Kishan Kaul has penned this judgment.


Kamini Sharma, Editorial Assistant has put this story together

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