Union of India & Ors Vs. Bakshi Ram
 INSC 69 (1 March
K.J. (J) Shetty, K.J. (J) Sahai, R.M. (J)
1990 AIR 987 1990 SCR (1) 760 1990 SCC (2) 426 JT 1990 (1) 339 1990 SCALE
of Offenders Act, 1958: Section 12--Scope of--Release on probation after
conviction--Does not obliter- ate the stigma of conviction--"Shall not
suffer disqualifi- cation, if any, attaching to a conviction of an offence
under such law"--Refer to disqualification by some law other than the
Probation of Offenders Act.
Reserve Police Force Act, 1949: Section 10(n)--Constable--Acting prejudicial to
good order and discipline--Conviction-Release on probation--Dismissal from
service--Held not entitled to reinstatement--Penalty of 'dismissal' altered
into 'removal from service'.
respondent, a constable, convicted under section 10(n) of the Central Reserve
Police Force Act, 1949 but released on probation under section 4 of the
Probation of Offenders Act, 1958, was dismissed from service. He chal- lenged
his dismissal before the High Court which ordered his reinstatement holding
that there was no disqualification for him to continue in service, for section
12 of the Probation of Offenders Act, 1958 has the effect of removing the dis-
qualification attaching to his conviction. Hence this appeal by the Union of
the appeal and setting aside the order of the High Court, this Court.
1. Section 12 of the Probation of Offenders Act, 1958 only directs that the
offender 'shall not suffer dis- qualification, if any, attaching to a
conviction of an offence under such law'. Such law in the context is the other
law providing for disqualification on account of conviction e.g. if a law
provides for disqualification of a person for being appointed in any office or
for seeking election to any authority or body in view of his conviction, that
disqualification by virtue of section 12 stands re- moved. But that is not the
same thing to state that the person who has been dismissed from service in view
of his conviction is entitled to reinstatement upon getting the benefit of
probation of good conduct. Section 12 does not preclude the department from
taking action for misconduct leading to the offence or to his conviction theron
761 as per law. It was not intended to exonerate the person from departmental
punishment. [766B-C; 765E] R. Kumaraswami Aiyer v. The Commissioner, Municipal
Council Tiruvannarnalai and Anr.,  Cr. LJ 255; Embaru (P) v. Chairman Madras Port Trust,  1 LLJ 49 Mad; A. Satyanarayana
Murthy v. Zonal Manager L.I.C., AIR 1969 A.P. 371; Prern Kumar v. Union of India & Ors.,  Lab. & Ind. Cases
823; Om Prakash v. The Director Postal
Services & Ors.,  1 SLR 648 and Director of Postal Services & Anr.
v. Daya Nand,  SLR 325, approved.
Personnel Officer Southern Railway & Anr. v.T.R. Challappan,  2 SLR
criminal trial the conviction is one thing and sentence is another. The
departmental punishment for miscon- duct is yet a third one. The Court while
invoking the provi- sions of section 3 or 4 of the Act does not deal with the
conviction; it only deals with the sentence which the of- fender has to
undergo. Instead of sentencing the offender, the Court releases him on
probation of good conduct. The conviction, however, remains untouched and the
stigma of conviction is not obliterated. In the departmental proceed- ings the
delinquent could be dismissed or removed or reduced in rank on the ground of
conduct which has led to his con- viction on a criminal charge. Therefore the
question of respondent's restatement into service does not arise. Howev- er,
the penalty of dismissal from service is altered into removal from service.
[765C-D, F; 766E] Tulsi Ram Patel v. Union of India,  Suppl. 2 SCR 131
and Trikha Ram v.V.K. Seth & Anr.,  Suppl. SCC 39, followed.
APPELLATE JURISDICTION: Civil Appeal No. 1312 of 1990.
the Judgment and Order dated 6.7. 1988 of the Rajasthan High Court in D.B. Civil
W.P. No. 71/77.
Additional Solicitor General, A. Subba Rao for C.V.S. Rao for the Appellants.
for the Respondent.
Judgment of the Court was delivered by 762 K. JAGANNATHA SHETTY, J. Special
Ram respondent was a constable in the Central Reserve Police Force at Devli in
Rajasthan. On 17th
March 1971 at about 8.45 p.m. he along with another constable forced entry into
the room of Garib Das the constable of the CRP Group Centre band platoon. Garib
Das was then not present in the room. His wife Savitri Devi who was inside
tried to prevent their entry, but in vain. Both the consta- bles caught hold of
her and misbehaved with her.
respondent was tried for an offence under Section 10(1) of the Central Reserve
Police Force Act, 1949. Section 10 of the Act sets out less heinous offences
and Section 10(1) refers to any act or omission which, though not speci- fied
in the Act, is prejudiciable to good order and disci- pline. On the evidence
adduced in the case he was found guilty of the charge and by judgment dated 23rd March 1971 he was sentenced to four months
R.I. by the Magistrate 1st Class and Commandant Group Centre, CRPF, Deoli
lodged in the Civil Jail, Jaipur to undergo the sentence.
view of his conviction and sentence., the Department by way of disciplinary
action dismissed him from service.
action was taken when his appeal against the conviction and sentence was
pending before the Sessions Judge. The learned Judge by judgment dated 22 September 1971 upheld the conviction but released
him under the Probation of Offenders Act, 1958 ("the Act").
Apparently he was released under Section 4 of the Act upon furnishing bonds to
keep peace and be of good behaviour for a period of six months. The re- spondent
complied with those conditions. After expiry of the period of good conduct, he
moved the High Court with Writ Petition under Article 226 of the Constitution
challenging his dismissal from service. The High Court relying upon Section 12
of the Act has set aside the dismissal and di- rected that he should be
reinstated into service with all consequential benefits. The High Court has
expressed the view that the sole reason for dismissal of the respondent was his
conviction under Section 10(1) of the Central Re- serve Police Force Act but in view of Section 12 of the Probation of
Offenders Act, 1968, there was no disqualifica- tion for him to continue in
service. This is how the High Court observed:
clear language of Section 12 of the Probation of Of- fenders Act, 1958 which
provides that a person dealt with under the provisions of Section 3 or Section
4 of that 763 Act shall not suffer disqualification, if any, attaching to a
conviction under any law, notwithstanding anything con- tained in any other
law. This provision has the effect of removing disqualification attaching to
the petitioners' conviction under Section 10(n) of the C.R.P.F. Act. Section 12
of the Probation of Offenders Act dealing specifically with this situation clearly
provides that the provisions therein is 'notwithstanding any thing contained in
any other law.' Hence, effect has to be given to the same." The judgment
of the High Court has been challenged in this appeal.
the result of the appeal turns on the scope and meaning of Section 12 of the
Probation of Offenders Act, it is necessary to set out the Section. Section 12
is in these terms:
Removal of disqualification attaching to conviction-- Notwithstanding anything
contained in any other law, a person found guilty of an offence and dealt with
under the provisions of Section 3 or Section 4 shall not suffer dis-
qualification, if any, attaching to a conviction of an offence under such law,
Provided that nothing in this section shall apply to a person who, after his
release under Section 4, is subse- quently sentenced for the original
offence." Section 3 of the Probation of Offenders Act, 1958 pro- vides
power to the Court to release certain offenders after admonition. Section 4
provides power to the Court to release certain offenders on probation of good
conduct. Under the disposition made by the Court under Section 4 the sentence
is suspended during the period of probation and the offender is released on his
entering into a bond to keep peace and be of good behaviour. Section 9 provides
for procedure in case of offender failing to observe conditions of bond. The
Court, if satisfied, that the offender has failed to observe any of the
conditions of bond for keeping good behaviour could sentence him for the
original offence or where the failure is for he first time, then, without
prejudice to the continuance in force of the bond, the Court may impose upon
him a penalty not exceeding fifty rupees.
will be clear from these provisions that the release of the offender on
probation does not obliterate the stigma of conviction. Dealing with the scope
of Sections 3, 4 and 9 of the Probation of Offenders Act, Fazal Ali, J., in The
Divisional Personnel Officer, Southern Railway and Anr. etc. v.T.R. Challappan etc.,
 2 SLR 587 at 596 speaking for the Court observed:
provisions would clearly show that an order of re- lease on probation comes
into existence only after the accused is found guilty and is convicted of the
the conviction of the accused or the finding of the Court that he is guilty
cannot be washed out at all because that is the sine qua non for the order or
release on proba- tion of the offender. The order of release on probation is
merely in substitution of the sentence to be imposed by the Court. This has
been made permissible by the Statute with a humanist point of view in order to
reform youthful offenders and to prevent them from becoming hardened criminals.
The provisions of Section 9(3) of the Act extracted above would clearly show
that the control of the offender is retained by the criminal court and where it
is satisfied that the condi- tions of the bond have been broken by the offender
who has been released on probation, the Court can sentence the offender for the
original offence. This clearly shows that the factum of guilt on the criminal
charge is not swept away merely by passing the order releasing the offender on proba-
tion. Under sections 3, 4, or 6 of the Act, the stigma continues and the
finding of the misconduct resulting in conviction must be treated to be a
conclusive proof. In these circumstances, therefore, we are unable to accept
the argument of the respondents that the order of the Magistrate releasing the
offender on probation obliterates the stigma of conviction." As to the
scope of Section 12, learned Judge went on (at 596):
was suggested that Section 12 of the Act completely obliterates the effect of
any conviction and wipes out the disqualification, attached to a conviction of
an offence under such law. This argument, in our opinion, is based on a gross
misreading of the provisions of Section 12 of the Act, the words
"attaching to a conviction of an offence 765 under such law" refer to
two contingencies: (i) that there must be a disqualification resulting from a
conviction and (ii) that such disqualification must be provided by some law
other than the Probation of Offenders Act. The Penal Code does not contain any
such disqualification. Therefore, it cannot be said that section 12 of the Act
contemplates an automatic disqualification attaching to a conviction and
obliteration of the criminal misconduct of the accused. It is also manifest the
disqualification is essentially differ- ent in its connotation from the word
'misconduct'." In criminal trial the conviction is one thing and sen- tence
is another. The departmental punishment for misconduct is yet a third one. The
Court while invoking the provisions of Section 3 or 4 of the Act does not deal
with the convic- tion; it only deals with the sentence which the offender has
to undergo. Instead of sentencing the offender, the Court releases him on
probation of good conduct. The conviction however, remains untouched and the
stigma of conviction is not obliterated. In the departmental proceedings the delin-
quent could be dismissed or removed or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge; (See Article 311(2)(b) of
the Constitution and Tulsiram Patel case:  Supp. 2 SCR 131 at 282).
12 of the Act does not preclude the department from taking action for
misconduct leading to the offence or to his conviction thereon as per law. The
section was not intended to exonerate the person from departmental punish- ment.
The question of reinstatement into service from which he was removed in view of
his conviction does not therefore, arise. That seems obvious from the lerminology
this aspect, the High Court speak with one voice. The Madras High Court in R. Kumaraswami
Aiyer v. The Commission- er, Municipal Council Tiruvannamalai and Anr.,  Crl.
L..J. 225 Vol. 58 and Embaru (P) v. Chairman Madras Port Trust,  1 LLJ 59
Mad., the Andhra Pradesh High Court in A. Satyanarayana Murthy v. Zonal
Manager, L.I.C., AIR 1969 AP 371, the Madhya Pradesh High Court in Prem Kumar
v. Union of India and Ors.,  Lab & Ind. cases 823, the Punjab & Haryana
High Court in Om Prakash v. The Director Postal Services (Post and Telegraphs Deptt.)
Punjab Circle, Ambala and Ors.,  1 SLR 643.
The Delhi High Court in Director of Postal
Services and Anr. v. Daya Nand,  SLR 325 have expressed the same view.
This view of the High Courts in the aforesaid cases has been approved by this Courtin
T.R.Challappan's case  2 SLR 587.
Trikha Ram v.V.K. Seth and Anr.,  Supp. SCC 39 this Court after referring
to section 12 has altered the punishment of dismissal of the petitioner therein
into "removal from service", so that it may help him to secure future
employment in other establishment.
12 is thus clear and it only directs that the offender "shall not suffer
disqualification, if any, attach- ing to a conviction of an offence under such
law". Such law in the context is other law providing for disqualification
on account of conviction. For instance, if a law provides for disqualification
of a person for being appointed in any office or for seeking election to any
authority or body in view of his conviction, that disqualification by virtue of
Section 12 stands removed. That in effect is the scope and effect of Section 12
of the Act. But that is not the same thing to state that the person who has
been dismissed from service in view of his conviction is entitled to reinstate-
ment upon getting the benefit of probation of good conduct.
such a view has no support by the terms of Section 12 and the order of the High
Court cannot, there- fore, be sustained.
result the appeal is allowed. The impugned order of the High Court is set
aside. However, we alter the penal- ty of dismissal from service into 'removal
from service' as it was done in Trikha Ram's case.
circumstances of the case, we make no order as to costs.
Appeal al- lowed.