Mohamad Aziz Mohamed Nasir v. State of Maharashtra

663 MOHAMAD AZIZ MOHAMED NASIR #### ''· STAJE OF MAHARASHTRA _September_ 4, 1975 [M. H. BEG, P. N. BHAGWATI AND R. S. SARKAR!A, JJ.] _Pro'bation_ _of Offenders Act,_ 1958-S. _6-Scope_ _of._ On the question whether the provisions of (he Probatien of Offenders Act~ 1958 should have been applied in this case, Allowing the appeal. HELD : (1) Even though the point re!atini: to the applicability of s.6 ·w., 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 tfyem from contact or association with hardened criminals in jails and retrieve thenl from a life of crime and rehabilitate them as responsible and useful members of society. [665 B-CJ (2) Section 6 lays down an injunction _not_ _to_ _in1pose_ a sentence oi' imprisonment on a person who is under 21 years of age and is found guilty of having.committed an offence punishable with imprisonment, other than that for lifi,;o, 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 stage of trial but also at the sta·ge of "Higb Court or _any dther court_ when the case cotnes before it in appeal or revision.'" s. 11 (i) [664 JI] 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 a~ting in :fi.Jms. Subsequently he fell in bad corrij)any and took to evil way~. The . offence of theft of two _Sarees,_ though it could not be lightly ignored, was of 3.' ##### minor character and this ·was the first offence of the appellant. It cannot re · said that it would not be desirable to deal' with the appellant under s. 3' or s. 4 of the Act. [665 G-Hl 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 A B ## c D E F G #### _I_ ### .. BHAGWATI, J. The appellant and one Mohd. Yusuf Gulam Mohd. were Charged for an offence under s. 3 79 read with s. 34 of the Indian Penal Code for snatching two _sarees_ from one Govind whilst he was H carrying them from the shop 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 SUPREME COURT REPORTS [1976] 1 S.C.R. sentensed each of them to suffer rigorous imprisonment for six months. It docs not appear from the judgment of the learned Presidency l\fagistrate 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 ~ttention of the learned Presidency Magistrate was invited to the provisions of s. 6 of the Probation o~ Offenders Act, 1958. The appellant preferred an appeal against the order of conviction and sentence to the High Court of 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. Sv 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 to him. But the High Court observed that age alone was not sufficient to invoke the mercy ofl 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 !he 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 (!) of s. 6, on a plain grammatical reading of its language, provides that when any person under twenty-one years age is f.ound guilty of having committed an offence punishable with imprisonment, but not with imprisonment tlor 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 od' the offence and the character of the offender, it would not be desirable to deal with him under s. 3 or s. 4 and if the court chooses to pass any sentence of imprisonment on the offender, it shall record its reasons for doing so. Sub-section (2) of s. 6 then goes on to say that for the purpose of satisfying itself whether it would not be desirable to deal under s. 3 or s. 4 wiih an offender reforred to in sub-s. (1), the court shall call for a report from the Prob,a.tion Officer and consider the report, if any, and any other infonnation available to it relating to the character and physical and mental condition of the offender. Section 6 thus lays down an injunction, as distinct l!'om a discretion under s. 3 or s. 4, not to impose a sentence of imprisonment on a person who is under twenty-one years age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with A .B ## c ##### D \ .. E F G ##### II #####,,.. !,,- '· # . ..-' ";>< . _)\_ A B ### c D E F G H J. K. COTTON LTD. _v._ C.I.T. _(Fazal_ _Ali,!.)_ 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 stage of trial court but also at the stage of "High Court or any other Court when the case comes before it on appeal or in revision". Vide s. 11, sub·'· ( 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 oound to take notice of the provisions of that se,ction 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 criminlls in jails and retrieve them from a life of ~rime and rehabilitate them as responsible and useful members of society. Here, we find that whatever date be taken as the relevant date for deternining the applicability of s. 6-whethcr 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 arc, therefore, plainiy satisfied and under s. 6, sub-s. (1) it is not competent to the Court to impose any 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 appe!!2nt, 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 appella!l\ under s. 3 or s. 4, the Court is required to call for a report flrom 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 he1 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 ~or which he is convicted is, no doubt, an offence Qi' thefit which cannot be lightly ignored, but it is comparatively of a minor character, in that only two _sarees_ were snatched away from the hands of Govind, perhaps under the stress of economic necessity, Moreover, this is a first offence of the appellant. We are, therefore, not at all satisfied 12-L925SupCl/75 _666_ SUPREME COURT REPORTS [1976] 1 S.C.R. 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 v,ith one surety in the sum of Rs. _500(-_ to appear in the Court o~ the Presidency Magistrate to receive sentence, whenever called upon to do so within a period Qf 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 appel **A** **B** ;..._ [,. ] ' **"T'** _><'_ lant will continue on bail till such time as these directions are carried **C** out, after which the bail bond will stand cancelled. **P.B.R.** _Appeal allowed._