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State Vs. Lucky - (High Court of Delhi) (17 May 2017)

Maximum sentence awarded under Section 394 of IPC, would be no ground for not granting benefit of Probation



State has called in question correctness of order of sentence passed by Additional Sessions Judge whereby accused person/Respondent, though has been convicted under Section 394/411 read with Section 34 of Indian Penal Code, 1860 (IPC), but has been let off on probation of good conduct, subject to his furnishing bond in sum of Rs. 25,000/- with one surety of like amount before Probation Officer to appear and receive sentence when called upon during period of probation and in meantime to keep peace and good behaviour for a period of one year from date of furnishing of bond. Respondent has also been directed to pay compensation of Rs. 3000/- each to both victims of case.

Appellant/State has challenged grant of benefit of probation to Respondent on ground that, Sections 4 & 6 of Probation of Offenders Act, 1958 specifically provide that, beneficent provisions could be invoked only under conditions enumerated in Section 4, viz. that conviction is for such offence which is not punishable with death or imprisonment for life. It is submitted that, Section 394 of IPC entails punishment of imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and accused shall also be liable to fine.

In Arvind Kumar Sinha v. Amulya Kumar Biswas, Supreme Court has held that punishment must be proportioned to offence is or ought to be of universal application save where statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith.

Further, In Rattan Lal v. State of Punjab, Supreme Court handed down philosophy behind grant of probation that, “Act is a milestone in progress of modern liberal trend of reform in field of penology. It is result of recognition of doctrine that, object of criminal law is more to reform individual offender than to punish him. Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in case of offenders who are above age of 21 years, absolute discretion is given to Court to release them after admonition or on probation of good conduct, subject to conditions laid down in appropriate provisions of Act, in case of offenders below age of 21 years an injunction is issued to Court not to sentence them to imprisonment unless it is satisfied that having regard to circumstances of case; including nature of offence and character of offenders, it is not desirable to deal with them under Sections 3 and 4 of Act."

What would control and affect applicability of Probation of Offenders Act, 1961 would not be maximum sentence prescribed for offence, but whether Court has discretion to award a lesser sentence than maximum, without there being any caveat with respect to minimum sentence which has to be awarded for offence. Since, Penal Code does not bar exercise of judicial discretion in matter of award of sentence for offence under Section 394 of IPC, Probation of Offenders Act, 1961 would be applicable.

Any Court while exercising jurisdiction under Sections 4 & 6 of Probation of Offenders Act, 1958 has to keep in view nature of offence and conditions incorporated under the Act. It is only if Court forms an opinion that, it is expedient to release convict on probation for good conduct, regard being had to circumstances of case, then only benefit could be extended. Nature of offence is definitely one of circumstances. Court has the discretion to decide when and how it should form such an opinion. Merely because maximum sentence of life could have been awarded under Section 394 of Indian Penal Code, it would be no ground for not granting benefit of Probation of Offenders Act to Respondent. Court has discretion in matters of sentencing and sentencing process would hinge on nature and circumstances of case.

Though Respondent has been convicted under Sections 394 and 411 of IPC but considering nature of offence, character of offender, report of Probationary Officer and Respondent leading a disciplined life on reformed path, this Court has not been persuaded to differ with order of sentence by trial Court.

Relevant : Arvind Mohan Sinha vs. Amulya Kumar Biswas and Ors. MANU/SC/0099/1974, Rattan Lal vs. State of Punjab MANU/SC/0072/1964


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