Abdul Qayum Vs. The State of Bihar
 INSC 308 (15 November 1971)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
CITATION: 1972 AIR 214 1972 SCR (2) 381 1972
SCC (1) 103
R 1972 SC1554 (11) R 1972 SC2434 (7)
Probation of Offenders Act (20 of 1958), ss.
4 and 6--Application of Act--Courts to keep reformative aspect in mind.
The appellant, was convicted under s. 379
I.P.C. and sentenced to 6 months R.I.. He committed the theft along with
another accused. At the time of the occurrence he was 16 years of age and at
the time of conviction about 18 years. The Probation Officer recommended that
he may be released on probation under s. 6 of the Probation of Offenders Act,
1958, but the trial court declined to do so on the ground that he was an
associate of the other accused who was a hardened criminal. The order was
confirmed in revision by the High Court.
Allowing the appeal to this Court,
HELD : The sentence should be set aside with
the direction that the appellant be released under s. 4 of the Act on his
entering into a bond, with his father as surety, to appear and receive sentence
by the trial court whenever called upon to do so within a period of one year,
and during that time, to keep peace and be of good behaviour. [385 C-D] Section
4 empowers the trial court to release an offender on probation and under the
Act the power can be exercised by an appellate court. [384 C-D] In the present
case, the report of the Probation Officer does not justify the conclusion that
the appellant was an associate of the other accused, but on the contrary, the
report was very favourable to him. The accused was neither a hardened criminal
nor an associate of hardened criminals, and to sentence him to imprisonment
would defeat the purpose of the Act to reform an offender and would achieve the
object of associating him with hardened criminals. [384 E, H; 385 A-C] Rattan
Lal v. State of Punjab. A.I.R. 1965 S.C. 444, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal.No. 290 of 1968.
Appeal by special leave from the judgment and
order dated August 8, 1968 of the Patna High Court in Criminal Revision No.
1583 of 1967.
S. N. Misra, K. K. Sinha, B. B. Sinha, S. S.
Jauhar and S. K. Sinha, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by P.
Jaganmohan Reddy, J. This Appeal is by Special Leave against the Judgment of
the Patna High Court exercising its Revisional jurisdiction by which the
benefit of the provisions of the 382 probation of offenders Act, 1958 (Act No.
20 of 1958) (herein after called 'the Act') was denied to the Appellant Qayum.
The Appellant was convicted under Sec. 379 of
the Indian Panel Code and sentenced to rigorous imprisonment for six months.
The prosecution case was that on the Vijayadashmi day in 1964, Jagdish Kumar
Sinha along with his friends had gone to Mahalla Pathar Ki Masjid to see the
procession. He had in the pocket of his pant a purpose containing Rs. 56/in
currency notes. At about 1.30 a.m. when he got down from the Rikshaw and went
to the pan shop to purchase pan and cigarette he discovered when he wanted to
pay the price of the pan and cigarette that somebody had picked his pocket and
his purse was gone. He raised a hue and cry and seeing that two boys were
running, he and his friends chased them.
They succeeded with the help of the members
of the public in catching the Appellant who had immediately passed the money
from the purse to his associate Shamim who however escaped.
Both Shamim and the Appellant were convicted.
It appears that before the Sub Divisional Magistrate a joint petition of the
owner of the purse Jagdish Kumar Sinha and the Appellant for permission to
compound the offence was filed under Sec. 345(2) of the Indian Penal Code--,
but it is said no order seems to have been passed on it and the Appellant was
convicted as aforesaid. As we have not been able to ascertain the truth or
otherwise of this fact we do not express any view thereon. There is no doubt
that at the time of the alleged occurrence the Appellant was said to be only 16
years of age and at the time of his conviction he would be about 18 years of age.
Before the sentence was passed on him it was prayed that under Sec. 6 of the
Act he be released on probation and that no sentence should be passed against
him. The Trial Court called for a Report from the Probation Officer in respect
of both the Appellant and accused Shamim. The Probation Officer recommended
that the Appellant should be given the benefit under the Act which
recommendation however was rejected for reasons recorded by it and he was
sentenced to six months rigorous imprisonment as aforesaid. The reasons given
by the Trial Court for not giving the benefit to the Appellant are as under :"In
spite of his recommendations I do not feel inclined to extend the benefit of
the provisions of the probation of Offenders Act to accused Qayum. Apparently
he is an associate of accused Shamim who is a hardened criminal and a person of
Incidents of pick-pocketing are very rampant
in this subdivision and it was just a stray chance that accused Qayum was
caught in this case. Having regard to these facts and the nature of offence and
the circumstances in which 383 accused Qayum was caught, he does not deserve
'the benefit of Section 4 of the Act".
The Appeal filed against the conviction and
sentence however was dismissed and his prayer for giving him the benefit under
the Act was also rejected. Thereafter he filed a Revision Petition against his
conviction and sentence in the High Court of Patna where, as appears from the
Judgment of that Court, the only point ,that was urged on behalf of the
Appellant was that on the date when the revision came on for hearing the
Appellant was below 20 years and the benefit of the provisions of the Act
should have been given to him.
The High Court after referring to the reasons
given by the Trial Court said that the Probation Officer had not made any
recommendations for granting benefit under the Act to the other accused Shamim,
in as much as he was a hardened criminal and a habitual pick pocket and
therefore rejected the Revision Petition as in its opinion the Trial Court was
justified in not granting the benefit under the Act because of "the
association of the petitioner with such a hardned criminal and a pick
In our view neither the Trial Court, the
Appellate Court, nor the High Court applied their mind to the requirement of
the provision of the Act. As pointed out by this Court in Rattan Lal v. The
State of Punjab(1), "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". The provisions of the Act
must therefore be viewed in the light of this laudable reformatory object which
the legislature was seeking to achieve by enacting: the legislation. The Act
differentiated offenders below 21 years of age who are guilty of having
committed an offence punishable with death or imprisonment for life and those
who are guilty of a lesser offence. It is only in the case of offenders who are
below the age of 21 years and guilty of lesser offences than those punishable
with death and life imprisonment that 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 Sec. 3
and Sec. 4.
It is also provided in sub-sec. 2 of Sec. 6
that the Court shall for the purposes of satisfying itself whether it should
give the offender the benefit referred to in sub-sec.
(1), call for and consider a report from a
Probation Officer along with any other information available to it relating to
the character, physical and mental condition of the offender.
It may be noted that Sec. 3 empowers the
Court to release an offender after admonition where he has been found guilty of
hav(1) A.T.R. 1965 (Vol. 52) S.C. 444.
384 ing committed an offence under Sections
379, 380, 381, 404, 420 or any offence punishable with imprisonment of not more
than ,two years or fine or both either under the Indian Penal Code or under any
other law and that there is no previous conviction proved against him; while
Sec. 4 empowers it to release an offender on probation of good character where
it considers it expedient to do so instead of sentencing him at once to any
punishable. In Rattan Lal's case(1) a question had arisen as to whether Section
1 1 (2) of the Act circumscribes the jurisdiction of an Appellate. Court to
make an order under the Act only in a case where the Trial Court could have
made that order, and consequently in an appeal against an order of the High
Court passed in exercise of its revisional jurisdiction, this Court could pass
such an order. It was held that the phraseology used therein was wide enough to
enable, the Appellate Court or the High Court to make such an order and that it
was purposely made comprehensive as the Act was made to implement a social
reform, as such either it could do so itself or direct the High Court to do so.
In either case the provisions of Sec. 6 of the Act have to be complied with.
In this case it is true that the Trial Court,
the Appellate Court as well as the High Court did consider the question of
giving the benefit to the Appellant under Sec. 6 but in our view they have
completely misdirected themselves to the essential requirements of that
provision. The Probation Officer's report nowhere indicates that the accused is
'an associate of accused Shamim'. The High Court thought apparently he is an
associate of Shamim. Even if Shamim was a hardened criminal as it appears from
the Probation Officer's report dealing with that accused there was no war-rant
for infering that the Appellant was his associate.
A reference to the report of 'the Probation
Officer dated 7-8-65 would show that the accused was approximately 18 years of
age and was physically and mentally normal. Though he was illiterate lie had a
vocational aptitude, for tailoring and was working in the Bihar Tailoring Works.
He was interested towards his work as a tailor and behaves properly with his
father and brothers and has normal association with friends. Unfortunately he
lost his mother when he was 10 years old and his family history disclosed
according to the report that he comes from a poor family and though he has no
landed property he has a house of his own to live ill. Both his father and his
elder brother are employed. The attitude of the family towards the offender
appellant was one of sympathy and affection and the father exercised reasonable
control over him. The report of the neighbours is also in his favour. In the
end the Probation Officer expressed the view that there is no report against
the character of the offender, no previous conviction has (1) A.I.R. 1965 (Vol.
52) S.C. 444.
385 been proved against him prior to this
case and in the circumstances mentioned by him the release on probation may be
a suitable method to deal with him. He, therefore recommended that he be
released on probation by getting his father to execute a suitable security.
This report in our view does not justify the conclusion that the appellant is
either a hardened criminal or is associated with hardened criminals for denying
him the benefit of the provisions of the Act. To sentence him to imprisonment
would itself achieve the object of associating him with hardened criminals
which association the Courts thought was a good ground for denying him the
benefit of being released on probation. We have no doubt that if he is released
on probation of good conduct there is hope of his being reclaimed and afforded
the opportunity to live a normal life of a law abiding citizen. In this view
the Appeal is allowed and the sentence is set aside with the direction that he
be released under Sec. 4 of the Act on his entering into a bond, with his
father as a surety in the sum of Rs. 500/to appear and receive sentence by the
Trial Court whenever called upon to do so within a period of one year and
during that time, to keep the peace and be of good behaviour. The Trial Court
is directed to take a bond from the Appellant and a surety bond from the
Appellant's father as aforesaid. His bail bond will enure till then and will be
deemed to be cancelled after the directions are carried out.