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TMI Blog1962 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... rther charged with causing grievous hurt under s. 326, Indian Penal Code. The elder brother who too caused hurt to the victim was charged under s. 324, Indian Penal Code. The Assistant Sessions. Judge held the prosecution case as alleged establish against both the accused. It is now necessary to mention that according to the Sessions judge Ramji was 21 years old and Basist 19. Section 6 of the Act enacts : 6. (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, 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, shall record its reasons for doing so. (2) For the purpose of satisfying itself Whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in subsection (1), the Court shall call for a report from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of imprisonment, holding that the crucial date on which the age had to be determined being not the date of the offence but the date on which as a result of a finding of guilty sentence had to be passed against the accused. As regards Basist also, it was urged before the High Court that in view of the alteration in the finding recorded as regards his guilt, the beneficial provisions of s. 6 of the Act became applicable to him, the learned judge holding that he could pass the same order as the trial court could have done because of the provisions contained in s. 11 of the Act reading : 11. (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court. (3) In any case where any person under twenty- one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne in mind it would be clear that the age referred to by the opening words of s. 6(1) should be that when the court is dealing with the offender that being the point of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it, viz., sentence the offender to imprisonment or to apply to him the provisions of S. 6(1) of the Act. As the High Court has found that Ramji was not a person under the age of 21 on May 24, 1961, when. the learned Sessions judge found him guilty it is clear that s. 6(1) of the Act has no application- to him. The position in regard to the second appellant Basist--tands on an entirely different footing. He was said to be of the age of 19 by the Sessions judge which is apparently a reference to the time when the offence was committed. If so, he would have been about 20 at the time when the Sessions judge found him guilty of offences under ss. 307 and 326, Indian Penal Code, and possibly also below 21 at the time when the High Court altered his conviction into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd referred the question to the High Court. The learned judges rejected the reference observing that the words Court before whom he is convicted' used in s.562 were not intended to limit the power of making orders under that section to the court of first instance. It might be mentioned that the Code has since been amended by the addition of sub-s. (2) which runs : An order under this section may be made by an appellate court or by the High Court when exercising its powers of revision. so that it is no longer necessary for an appellate or revisional court to rely on any construction of the words ,'the court by which the person is found guilty for invoking or exercising- its jurisdiction. The position therefore comes to this-the words referring to the court by which a per-son is found guilty are wide enough to include an appellate court, and particularly so where it is the appellate court alone which by reason of its finding on the guilt of the accused becomes for the first time vested with the power or the duty to act under the section. Undoubtedly if s. II were attracted to the case, then there would be no need for invoking the Jurisdiction of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that the Courts mentioned in s. 11 be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under ss. 3 and 4 and the consequential provisions but also under s. 6. Accepting therefore the interpretation of S. 11 (1) which was urged by Counsel for the respondent, that the courts mentioned in it could pass orders under ss. 3, 4 or 6, the question next to be considered relates to the incidents of that jurisdiction with regard to the amount and nature of discretion vested in these courts. It was submitted on behalf of the appellant that the power conferred on the High Court and other courts by s. 11 (1) was neither more nor less than those of the court under s. 6 (1) and that the former were bound to exercise it, subject to the same conditions and limitations as are set out in the latter provision. Stated in other words the interpretation suggested was that the terms of s.6 had, so to speak, to be read into the jurisdiction of the courts acting under s. II (1). On the other hand the contention urged by the respondent was that s. II (1) had to be read on its own language and so rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offenders on probation of good conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised : (1) that no previous conviction should have been proved against him, and (2) that the court by which the person is found guilty should be of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do. Similarly, s. 4 empowers a court to release certain offenders on probation of good conduct, The criteria laid down there. and the guidance set out is that the court by which the person is found guilty should be of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has :a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all now proceed to consider one question which- was mooted before us in regard to the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge, when s. 6 becomes applicable to a person only on the decision of an appellate or a revisional court. Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is, for the first time, in a position to claim the benefit of s. 6. We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender. In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge, s. 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal. The appeal is accordingly allowed in part i.e., in regard to the second appellant-Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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