Jugal Kishore Prasad v. State Of Bihar

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 46 of 1969.

i Constitution of Appeal under Article 134(1)(c) of the a India from the judgment and order dated eee ea (on of the Patna High Court in Criminal Appeal S. M. Mishra and S. S. Jawher, for the appellant.

B. P, Jha, for the respondent.

I livered The Judgment of une Court was de - Khanna, J. The short question which ao ae aS in this appeal on certificate granted by — a ony ee ther the appellant who was jess than 21 on Core goed i conviction for an offence Otis m the benefit of section tion 149 Indian Penal Code, can Cora benef of 1958). of the Probation of Offenders Act, 195

R. 1972 S.C. 1490, followed.

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876 SUPREME COURT REPORTS [1973} 1 S.C.R.

d five others, who belong to village Mandi A in noe a por triéd in the court of Additional Sessions Judge Gaya for offences under sections 147, 148, 307, 323 and 307 read with section 149 Indian Penal Code and section 25 of the Arms Act. Jugal Kishore appellant was convicted under section 326 read with section 149 and section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for 8 a period of five years on the first count and rigorous imprisonment for a period of two years on the second count. The sentences awarded to the appellant were ordered to run concurrently. The other five accused were also convicted for various Offences and were sentencd on those counts.

On appeal the Patna High Court as per judgment dated C January 22, 1968 acquitted two of the accused. The conviction of the appellant for offences under section 326 read with section 149 and 148 Indian Penal Code was maintained. The sentence of the appel’ant for the offence under section 326 read with section 149 Indian Penal Codec was reduced from five years to three years. The sentence for the offence under section’ 148°Indian Penal Code was, however, maintained. The conviction, of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count. After the pronouncement of the judgment by the High Court, an application was made on behalf of the appellant that his case be dea! with | under the Probation of Offeuders Act on the ground that he was BE below 21 years of age at the time of his conviction by the trial _ court. This application was rejected by the High Court as per order dated December 12, 1968 .n the ground that the offence for which the anpellant had been convicted was punishable with imonrisonment for life, and as such, the provisions of Probation of Offenders Act could no be invoked in his case. On prayer made by the appellant, the High Court certified the case to be fit for F |’ appeal to the Supreme Court as it involved the question relating to : tion of Offenders Act.

the applicability of the Proba The appellant and his companions were tried on the allegation | that on October 14, 1964-at about 10 a.m., while Madho Saran _ getting his field bearing No, 1678 ploughed by his plouehman s ts akshya Mahto, the appellant and Rghu accused went there and I Teen ok Madho Saran for cutting the ridge between field No. Mad Ae 1719. Field No, 1719 belonged to the anpe'lant. brother Sadho Sart : mee and narrated the incident to od

* ran, e ers then came out of i 8 Ste and Sadho Saran along wt

Anger ro Te who were accompanied by about H

8 pur ss Saran was hit on his fal Sea shot as a result of which Sache ho Saran fell down, whereafter ete em enters me eR ee

J. K, PRASAD v. BIHAR (Khanna, J) 877 the other accused, including the appellant who was i garasa, caused further injuries to Sadho Saran = fo pamons with sharp-edged and blunt weapons. The injured were thereafter taken to Jehanabad Hospital. On receipt of intimation from the doctor incharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran, Nand Kishore, one of the accused, also lodged a report at the police station. 2

The question with which we are concemed in this appeal, as mentioned earlier, is whether the appellant can claim the benefit of the Probation of Offenders Act. The appellant gave his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the case has been argued before us on the assumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Judge. The main offence for which the appellant has been convicted is section 326 read with section 149 Indian Penal Code. Section 326 deals with the offence of voluntarily causing grievous hurt by dangerous weapons or means and the punishment prescribed for the offence is imprisonment for life, or imprisonment of either description for a term which may extend to ten years. The con- Victed person shall also be liable to pay fine. According to section 149 of the Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is 2 member of the same assembly, is guilty of that offence. It is, therefore, manifest that the appellant on being convicted for the offence under section 326 read with section 149 Indian Penal Code was liable to be punished for imprisonment for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine,

The tion of Offenders Act was enacted in 1958 with a view to oanits for the release of offenders of certain categories on probation or after due admonition and for matters oonneetag therewith. The object of the Act is to prevent the pee t) youthful offenders into obdurate criminals as a result a, ir ~ sociation with hardened criminals of mature age in case veil The ful offenders are sentenced to undergo inpelacn en in ie io above object is in consonance with the present ae A oe bag of penology, according to which effort <aveh ‘ Se os, unl about correction and reformation of the indivi ia et Not to resort to retributive justice. Modern crimin® i it peso recognises that no one is a born griminal and tha Aico i act crimes are the product of socio-economic millet. 6 stress’ bas much can be done for hardened criminals, considera’

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$78 SUPREME COURT REPOF’. = [1973] ii i bringing about reform of young offenders Not guitt — a wees and of preventing their association wi wardened criminals. The Act gives statutory recognition to the above objective. It is, therefore provided that youthful offenders should not be sent to jail, except In certain circumstances, Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years. of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of section 6 of the Act, §ub-section (1) of that section reads as under :

“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 under section 3 or section 4, and ‘f the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.”

Mr. Misra on behalf of the appellant has urged that as the olfence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but a'so with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant. This contentivu, in our opinion, is not well founded. Plain reading of section 6 makes it manifest that it deals with persons under twenty-one years of age who ate found guilty of. having committed an offence punishable with imprisonment but not with: imprison: * ment for life. As imprisonment for life can also be awarded for the offence under section 326 read with section 149 Indian Penal es A gece found guilty of such ah offence would not be an ik mM benefit of section 6. . To hold otherwise. ment for life” ani es of ignoring the words “but not with imprisonig plainly not sere see them to be otiose. Such a construction that the offence sible. We also cannot subscribe to the view ces excluded from the purview of the section ate plain meanin rant such a view. On the contrary, the by a person ae < Hon is that the section cana be ive imprisonment for life "The f sor an offence punishable with term can also be awarded fo fact that imprisonment for a lesset the category of offences noe tie Offence would not take it out 0 f ces punishable with imprisonment for life. © Act appears to be that it is only in

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J. K. PRASAD v. BINAR (Khana, J.) 879 cases of not very serious nature, viz., offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act. Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case. Likewise, there are certain offences like those under the Prevention of Corruption Act wherein the convicted person cannot claim the protection of the Act. Section 18 of the Act expressly excludes such offences from the purview of the Act.

In the case of Som Nath Puri v. State of Rajasthan(') the appellant had been convicted for an offence under section 409 Indian Penal Code. Punishment for the offence under section 409 Indian Penal Code is the same as for the offence under section 326, namely, imprisonment for life, or imprisonment of cither description for a term which may extend to ten years and the liability to pay fine. It was held by this Court that in such a cass the provisions of section 4 of the Probation of Offenders Act cannot be invoked. It may be mentioned that section 4 of the Probation of Offenders Act also excludes from its operation persons convicted of offences punishable with imprisonment for life. In that connection, the Court observed :

“As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicabls to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life.”

We, therefore, hold that the appellant cannot invoke the benefit of section 6 of the Probation of Offenders Act.

The appeal fails and is dism’ssed. Appellant to surrénder to the bail bond.

Appeal dismissed,

“ () ALR. 19728.C. 1490.