TMI Blog1964 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... count and directed that the sentences should run concurrently. He further imposed a fine of ₹ 200/- on the appellant under s. 451 of the Indian Penal Code and ordered that, in default of payment of fine, he should undergo rigorous imprisonment for two months. The appellant was 16 years old at the time of his conviction. The Act was extended to Gurgaon District on September 1, 1962 and, therefore, at the time the appellant was convicted by the Magistrate, the Magistrate had no power or duty to make any order under the Act. The appellant preferred an appeal against his conviction and sentences to the Additional Sessions Judge, Gurgaon, who by his judgment dated September 22, 1962, dismissed the appeal. Though by the time the Additional Sessions Judge disposed of the appeal the said Act had come into force, neither the appellant relied upon the provisions of the Act nor did the learned Additional Sessions Judge exercised his power there- under. The revision filed in the High Court by the Appellant was dismissed on September 27, 1962. The revision petition was dismissed in limine, but no ground was taken in the revision petition that the Additional Sessions Judge should have act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years 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 ss, 3 and 4 of the Act. With this short background we shall now read the relevant provisions of the Act. Section 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, it would not be desirable to deal with him tinder 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. (2) For the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Art. St 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a, law is retrospective and if so, to what extent depends, upon the interpretation of a particular statute, having regard to the well settled rules of construction. Maxwell On Interpretation of Statutes , 11th edition, at pp. 274-275, summarizes the relevant rule of construction thus: - The tendency of modern decision, upon the whole, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where no appeal lies or is preferred against the order of a court declining to deal with an accused under s.3 or s.4 of the Act, and in the instant case an appeal lay to the Sessions Judge and indeed an appeal was preferred from the order of the Magistrate. The provision that directly applies to the present case is s. 1 1 (1) of the Act, where under an order under the Act may be made 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. The sub-section ex facie does not circumscribe 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. The phraseology used therein is wide enough to enable the appellate court or the High Court, when the case comes before it, to make such an order. It was purposely made comprehensive, as the Act was made to im- plement a social reform. As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the Legislature should have prohibited the exercise of such a power, even if the case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Sessions Judge sentenced him to undergo rigorous imprisonment for 6 years under s. 307 of the Indian Penal Code and for 4 years rigorous imprisonment under s. 326 of the said Code and ordered the sentences to run concurrently. But the High Court on appeal found Basist guilty of an offence under s.324 of the Indian Penal Code. It was contended that the High Court could not make an order under s.6(1) of the Probation of Offenders Act, 1958, on the ground that s. 11 of the Act did not confer such a power on the High Court. Dealing with this argument, this Court observed:- It is however possible that the words in s. 11(1) pass an order under the Act are not to be construed so strictly and literally, but to be understood to mean to exercise the powers or jurisdiction conferred by the Act. This wide interpretation might perhaps be justified by the scope and object of this section. Section 11 is to apply notwithstanding anything in the Code or any other law to all courts empowered to sentence offenders to imprisonment. To read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the [1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is whether this Court can exercise the same power under s. 11(1) of the Act. This Court in disposing of an appeal against an order of the High Court would be deciding what the High Court should have held in the revision before it. This Court's power would also be confined to the scope of the power exercisable by the High Court. This Court, therefore, can either make an order under s.6(1) of the Act or ,direct the High Court to do so. But whether this Court directly makes an order under s.6(1) or directs the High Court to do :so, it is bound to comply with the provisions of s.6 of the Act. A court cannot impose a sentence of imprisonment on a person under 21 years of age found guilty of having committed ,an offence punishable with imprisonment (but not with imprisonment for life) 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 s.3 or s.4 of the Act. For The purpose of satisfying itself in regard to the said action, under sub-s. (2) of s. 6 of the Act the Court shall call for a report from the probation officer and consider the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had escaped the attention of the Additional Sessions Judge as well. as of the High Court and, therefore, it is a fit case for our interference under Art. 136 of the Constitution. We set aside the order of the High Court and direct it to make an order under s.6 of the Act, or, if it so desires, to remand it to the Sessions Court for doing so. We should also make it clear that we do not intend to question the correctness of the finding of the courts in regard to the guilt of the accused; indeed, the learned counsel for the appellant did not question the said finding. that when a person has been found guilty for the first time of an offence to which the provisions of ss. 3 and 4 of the Probation of Offenders Act, 1958 (Act No. XX of 1958), hereinafter called the Act, could apply, and such finding, be it of the trial Court or of the appellate Court, is arrived at before the application of the Act, the Court of appeal or revision cannot take action under s. 11 (1) of the Act when the case comes, before it in appeal or revision. In this case, the trial Court had convicted the appellant prior to the application of the Act in that area and could not take into consideration the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action under those provisions unless the Act specifically provided for those provisions to be applicable to cases which had been decided earlier, prior to its application. There is no such express provision in the Act and I do not find any necessary implication from the provisions of the Act in that regard. It is true that appellate Courts have allowed parties to take advantage of a law enacted during the pendency of the case, but this is done when parties can litigate further in view of the changed law and is done to save multiplicity of proceedings. Such a ground is not available in the present case. Ordinarily, it takes a few years for a case decided by a Magistrate who tries it in the first instance, and the passing of the final order by the High Court in revision. Ordinarily, an appeal lies to the Sessions Judge from the order of the Magistrate and a revision against the Sessions Judge's order to the High Court. The two proceedings before the Sessions Judge and the High Court do take time. The Act is an all-India Act -and there would be a very large number of persons convicted by trial Courts prior to the enforcement of the Act. It is too much to suppose that the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is correct. If the expression 'the Court by which the person is found guilty' was to include the appellate Court confirming the conviction of a person for the offence which fell under any of the two sections, it would not have been necessary to clothe the appellate Court with a power to take action under these sections, as sub-s. (1) of s. 11 does. This subsection reads: 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 re- vision. It is clear from the language of this sub-section that the Court which is empowered to order under the Act in the first instance is the Court which is empowered to try and sentence the offender to imprisonment, i.e., the original trial Court. It is given the power to take action under the Act. Orders under the Act can also be made by the High Court or any other Court when the case comes before it on appeal or in revision. The question is as to in which case the High Court or any other Court, can exercise its power. It can e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd its reasons for sentencing him to imprisonment. Sub-section (2) makes it incumbent on the Court to get a report from the Probation Officer and consider it in order to satisfy itself whether it would not be desirable to deal under s. 3 or s. 4. These provisions of s. 6 restrict the discretion of the trial Court for taking action under s. 3 and s. 4 in regard to persons under 21 years of age and constricted of all offences except offences punishable with imprisonment for life. A Court can, however, sentence such a person to imprisonment only after considering various matters and finally satisfying itself that it would not be desirable to make an order under s. 3 or s. 4 in regard to that person. A case to which the provisions of s. 6 apply is dealt with by sub-s. (3) of s. II which provides that when a Court has declined to deal with the person under s. 3 or s. 4 and has passed a sentence of imprisonment and when no appeal lies or none has been preferred from that order, the Court to which appeals ordinarily lie from the sentence of the Court may, suo motu or on an application made to it by the convicted person or the Probation Officer, call for and examine the record of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prejudice to the continuance in force of the bond. In case a convicted person has not been able to observe the conditions of the bond, he, in a way, stands to suffer larger punishment than what he would have got in the first instance in case in addition to the sentence which would be passed upon him he had already, for a certain period, observed the conditions of the bond and had also, in view of the provisions of s. 5, paid compensation to the victim of the offence and costs of the proceedings which are recovered as fine. The Code does not provide for the payment of costs and provides for the payment of compensation when ordered out of the fine imposed on an accused; vide ss. 545 and 546A of the Code. This Court considered certain provisions of the Act in Ramji Missar v. State of Bihar([1963] Supp. 2 S.C.R. 745) and held that the crucial date for the application of the aforesaid sections viz., ss. 3, 4 and 6 of the Act to, the case of an accused whose conviction by the trial Court of offences to which those sections do not apply, was altered by the appellate Court to an offence to which the provisions of those sections applied, would be the (late of the decision of the trial Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
