1988 1 Crimes(HC) 404 ; 1988 CrLJ 980
GAUHATI HIGH COURT
Manisana, J.
Ratan Mia and another - Petitioners
versus
State of Assam - Opp. Party
Criminal Revision No. 238 of 1981
Decided on 11-8-1987
M.A. Laskar and A.H Saikia, Advocates - For the Petitioners.
J. Singh, P.P., Assam - For the Opp. Party.
IMPORTANT POINT
A person found guilty of the offence under section 377 Indian Penal Code is not entitled to claim the benefit of Section 6 of the Probation of Offenders Act.
Act
Referred
:INDIAN PENAL CODE : S.377
PROBATION OF OFFENDERS ACT : S.6
(A) The central legal question involves the applicability of Section 6 of the Probation of Offenders Act in relation to an offence punishable under Section 377 of the Indian Penal Code. The court analyzed whether a person convicted of an offence that carries a potential sentence of imprisonment for life is eligible for probation, even if the actual sentence awarded by the trial court is for a shorter term. The court interpreted the statutory limitation in Section 6 of the Probation of Offenders Act, which explicitly excludes those sentenced to imprisonment for life, concluding that the nature of the offence (being punishable by life imprisonment) precludes the benefit of probation regardless of the actual term imposed.
(B) The court held that if an offence is punishable by life imprisonment, the offender cannot claim the benefit of probation under Section 6 of the Probation of Offenders Act, as the statutory bar applies to the category of the offence rather than the specific sentence awarded.
Facts of the case:
Two petitioners were convicted under Section 377 of the Indian Penal Code and sentenced to six months of rigorous imprisonment and a fine of Rs. 100 each. The petitioners sought to be released on probation of good conduct, citing their age (under 21), lack of previous convictions, and expression of repentance. The Sessions Judge had previously rejected this plea.
Findings of Court:
The court found that since Section 377 I.P.C. is punishable by imprisonment for life, the petitioners are legally ineligible for probation under Section 6 of the Probation of Offenders Act. However, noting that the incident occurred over nine years prior, the petitioners were first-time offenders, and one petitioner was a minor at the time of the incident, the court found it just to reduce the term of imprisonment.
Issues:
1. Whether a person convicted of an offence punishable by life imprisonment under Section 377 I.P.C. can be released on probation under Section 6 of the Probation of Offenders Act.
2. Whether the sentence of imprisonment should be modified based on the age of the offenders and the time elapsed since the occurrence.
Ratio Decidendi:
The expression "but not imprisonment for life" in Section 6 of the Probation of Offenders Act means that any offence for which life imprisonment is a possible punishment takes the offender out of the category of those eligible for probation, regardless of whether a lesser term was actually awarded.
Result:
The conviction under Section 377 I.P.C. was upheld, but the sentence of rigorous imprisonment was reduced from six months to seven days for both petitioners, while the fine remained unchanged.
(A) The central legal question involves the applicability of Section 6 of the Probation of Offenders Act in relation to an offence punishable under Section 377 of the Indian Penal Code. The court analyzed whether a person convicted of an offence that carries a potential sentence of imprisonment for life is eligible for probation, even if the actual sentence awarded by the trial court is for a shorter term. The court interpreted the statutory limitation in Section 6 of the Probation of Offenders Act, which explicitly excludes those sentenced to imprisonment for life, concluding that the nature of the offence (being punishable by life imprisonment) precludes the benefit of probation regardless of the actual term imposed.
(B) The court held that if an offence is punishable by life imprisonment, the offender cannot claim the benefit of probation under Section 6 of the Probation of Offenders Act, as the statutory bar applies to the category of the offence rather than the specific sentence awarded.
Facts of the case:
Two petitioners were convicted under Section 377 of the Indian Penal Code and sentenced to six months of rigorous imprisonment and a fine of Rs. 100 each. The petitioners sought to be released on probation of good conduct, citing their age (under 21), lack of previous convictions, and expression of repentance. The Sessions Judge had previously rejected this plea.
Findings of Court:
The court found that since Section 377 I.P.C. is punishable by imprisonment for life, the petitioners are legally ineligible for probation under Section 6 of the Probation of Offenders Act. However, noting that the incident occurred over nine years prior, the petitioners were first-time offenders, and one petitioner was a minor at the time of the incident, the court found it just to reduce the term of imprisonment.
Issues:
1. Whether a person convicted of an offence punishable by life imprisonment under Section 377 I.P.C. can be released on probation under Section 6 of the Probation of Offenders Act.
2. Whether the sentence of imprisonment should be modified based on the age of the offenders and the time elapsed since the occurrence.
Ratio Decidendi:
The expression "but not imprisonment for life" in Section 6 of the Probation of Offenders Act means that any offence for which life imprisonment is a possible punishment takes the offender out of the category of those eligible for probation, regardless of whether a lesser term was actually awarded.
Result:
The conviction under Section 377 I.P.C. was upheld, but the sentence of rigorous imprisonment was reduced from six months to seven days for both petitioners, while the fine remained unchanged.
JUDGMENT
Manisana, J. - This revision arises from a judgment of the Sessions Judge, Cachar given on 27 July 1981 in Criminal Appeal No. 15(1) of 1981 dismissing the appeal from a judgment and order of conviction of the Judicial Magistrate of the 1st Class, Karimganj passed In G.R. Case No. 191 of 1978 convicting the petitioners under section 377 I.P.C. and sentencing them to R.I. for 6 months and fine of Rs. 100/- each.
2. The only submission of the learned counsel for the petitioners that the petitioners may be released on probation of good conduct. He has drawn my attention to the petition dated 25 July 1981 filed by the petitioners before the Sessions Judge praying for releasing them on probation of good conduct stating that they repented what they had done; and that they were under 21 years of age; and that they had no any previous conviction; and that they may be given a chance that they may be good and law abiding citizen. The Sessions Judge rejected the petition on the ground that the plea was not raised during bearing and the judgment had been already delivered.
3. In the present case the petitioners have been found guilty of committing the offence under section 377 I.P.C. The offence under section 377 is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years. Assuming that the petitioners were under 21 years of age as imprisonment for life can also be awarded for the offence under section 377, I.P.C. a person found guilty of such an offence would not entitle to claim the benefit of section 6 of the Probation of Offenders Act To hold otherwise would have the effect of ignoring the expression "but not imprisonment for life" In Section 6, the fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of the offence punishable with imprisonment for life, I see Parichhat v State of M.P.1 and Jugal Kishore v. State of Bihar2). Therefore, the petitioner will not be entitled to be released on probation of good conduct.
4. The next question which arises for consideration is what punishment should be awarded to the petitioners. The occurrence took place on 5 March 1978, that is to say more than 9 years ago. The Magistrate convicted the petitioners on 31 January 1981.
The Sessions Judge dismissed the appeal on 27th July 1981. The conviction has been in force for more than 6 years. There is nothing on record to show that the petitioners were previously convicted. In the absence of such materials, it is treated that the petitioners are first offenders. The school certificate Annexure-I to the petition shows that the petitioner No. 2 Abdul Nur was aged about 15½ years on the first March 1977. It is stated at the bar that the petitioners were not at all detained In connection with the present case. Having regard to the circumstances and considering the age of the petitioner No. 2 Abdul Nur in my judgment to reduce the sentence of imprisonment to 7 days will meet the ends of justice. As regards petitioner No. 1 Ratan Mia, from records the exact age of the petitioner No. 1 is not available. However, this statement under section 313 Cr. P.C. shows that he was aged about 20 years when he was examined under section 313 Cr. PC. Although the age given by the accused in his statement had no special significance the petitioner No. 1 Ratan Mia is also entitled to get the benefit of the proposed order to be passed in favour of the petitioner No. 2 Abdul Nur.
5. For the foregoing reasons the conviction of the petitioners under section 377 I.P.C. is upheld but the sentence of imprisonment is modified and reduced to 7 days that is the petitioners are sentenced to RI for 7 days each. It is made clear that only the sentence of Imprisonment has been modified and not the fine. The bail bonds of the petitioners are cancelled. They are to surrender before the Judicial Magistrate of the 1st Class, Karimganj to serve out the sentences. Accordingly, the petition is partly allowed and disposed of.
1. A.I.R. 1972 S.C. 535.
2. A.I.R. 1972 S.C. 2522.