Holding

The Supreme Court held that, unless excluded, courts have a mandatory duty to consider granting probation under Section 4 of the Probation of Offenders Act and must record reasons if they decline, and the failure to do so constitutes a failure of justice.

Summary

The appellants, a mother‑in‑law and her son‑in‑law, were convicted under Section 498‑A of the IPC for cruelty to a woman and sentenced to rigorous imprisonment and fine. They sought to replace the imprisonment with an enhanced fine, but the court held that fine cannot substitute imprisonment under Section 498‑A. The principal issue was whether the trial courts were obliged to consider granting probation under Section 360 of the CrPC or Section 4 of the Probation of Offenders Act, 1958, and whether the High Court erred in failing to do so. The Supreme Court examined the statutory scheme, noting that Section 4 of the Probation Act has a non‑obstante clause giving it precedence over other laws and imposes a mandatory duty on courts to consider probation and record reasons if denied. It held that the lower courts’ omission to consider probation amounted to a failure of justice. Consequently, the Court upheld the conviction but remitted the matter to the High Court for limited consideration of probation after obtaining a report from the probation officer.

Issues considered

Whether the High Court was justified in not extending the benefit of probation to the appellants under Section 360 of the CrPC or Section 4 of the Probation of Offenders Act, 1958.
Whether courts have a mandatory duty to consider granting probation and to record specific reasons if they decline.
Whether a fine can be substituted for imprisonment under Section 498‑A of the IPC.

Legislation cited

Code of Criminal Procedure, 1898s. 562
Code of Criminal Procedure, 1973s. 360, s. 361
Indian Penal Code, 1860s. 304-B, s. 498-A
Probation of Offenders Act, 1958s. 19, s. 4(1), s. 41, s. 4(2), s. 4(3), s. 4(4), s. 4(5)

Headnote

Issue for Consideration Whether the appellants could be granted the benefit of probation either u/s.360(1) of CrPC or u/s.4 of the Probation of Offenders Act, 1958; whether the High Court was justified in not extending the benefit of probation to the appellants. Headnotes† Probation – sub-section (1) of s.4 – Code of Criminal Procedure, 1973 – s.360 – Appellants were jointly tried for commission of offences u/ss.304-B and 498-A of IPC – The Sessions Court acquitted the appellants of charge u/s.304-B but convicted them u/s.498-A of IPC –

Subjects

Grant of probationRelease of the offender on probationProbationMatter remittedProbation officerFine is not an alternative to imprisonmentCourt’s discretion to decide to extend the benefit of probationProbation as matter of right

Judgment

[2025] 4 S.C.R. 2306 : 2025 INSC 540

Chellammal and Another
v.
State Represented by the Inspector of Police
(Criminal Appeal No. 2065 of 2025)
22 April 2025
[Dipankar Datta* and Manmohan, JJ.]

Issue for Consideration
Whether the appellants could be granted the benefit of probation
either u/s.360(1) of CrPC or u/s.4 of the Probation of Offenders
Act, 1958; whether the High Court was justified in not extending
the benefit of probation to the appellants.

Headnotes†
Probation of Offenders Act, 1958 – sub-section (1) of s.4 –
Code of Criminal Procedure, 1973 – s.360 – Appellants were
jointly tried for commission of offences u/ss.304-B and 498-A
of IPC – The Sessions Court acquitted the appellants of
charge u/s.304-B but convicted them u/s.498-A of IPC – The
High Court maintained the conviction of appellants u/s.498-A
of IPC – Plea by the appellants to set aside the sentence of
imprisonment by enhancing the fine – Interference with:
Held: No interference with the conviction u/s.498-A of IPC – Fine is
not an alternative to imprisonment – Considering grant of probation –
An offender cannot seek an order for grant of probation as a matter
of right but it is held that, unless applicability is excluded, in a case
where the circumstances stated in s.4(1) of the Probation Act are
attracted, the court has no discretion to omit from its consideration
release of the offender on probation; on the contrary, a mandatory
duty is cast upon the court to consider whether the case before
it warrants releasing the offender upon fulfilment of the stated
circumstances – The question of grant of probation could be decided
either way – In the event, the court in its discretion decides to
extend the benefit of probation, it may upon considering the report
of the probation officer impose such conditions as deemed just and
proper – However, if the answer be in the negative, it would only be
just and proper for the court to record the reasons therefor – In the
instant case, the Sessions Judge and the High Court by omitting

* Author
[2025] 4 S.C.R. 2307

Chellammal and Another v.
State Represented by the Inspector of Police

to consider whether the appellants were entitled to the benefit of
probation, occasioned a failure of justice – The matter remitted to
the High Court for limited consideration of the question of grant of
probation to the appellants upon obtaining a report of the relevant
probation officer. [Paras 6, 9, 28, 31]

Probation of Offender Act, 1958 – sub-section (1) of s.4 – Code
of Criminal Procedure, 1973 – s.360 – Comparison of:
Held: On a comparative study of s.360, Cr.PC and sub-section (1)
of s.4 of the Probation Act, what is revealed is that the latter is
wider and expansive in its coverage than the former – Inter alia,
while s.360 permits release of an offender, more twenty-one years
old, on probation when he is sentenced to imprisonment for less
than seven years or fine, s.4 of the Probation Act enables a court
to exercise its discretion in any case where the offender is found
to have committed an offence such that he is punishable with
any sentence other than death or life imprisonment – Additionally,
the non-obstante clause in sub-section gives overriding effect to
sub-section (1) of s.4 over any other law for the time being in
force – Also, s.361, Cr.PC itself, being a subsequent legislation,
engrafts a provision that in any case where the court could have
dealt with an accused under the provisions of the Probation Act
but has not done so, it shall record in its judgment the special
reasons therefor. [Para 26]

Case Law Cited
Hari Singh v. Sukhbir Singh [1988] Supp. 2 SCR 571 : (1988) 4
SCC 551; Gulzar v. State of Madhya Pradesh [2007] 1 SCR 81 :
(2007) 1 SCC 619; State of Madhya Pradesh v. Man Singh [2019]
13 SCR 570 : (2019) 10 SCC 161 – relied on.
State v. A. Parthiban [2006] Supp. 7 SCR 35 : (2006) 11 SCC
473; Chandreshwar Sharma v. State of Bihar (2000) 9 SCC 245;
Ishar Das v. State of Punjab [1972] 3 SCR 312 : (1973) 2 SCC
65; Dalbir Singh v. State of Haryana [2000] 3 SCR 1000 : (2000)
5 SCC 82; Jagdev Singh and Other v. State of Punjab (1974)
3 SCC 412; Rajbir v. State of Haryana (1985) Supp. SCC 272;
MCD v. State (NCT of Delhi) [2005] 3 SCR 1010 : (2005) 4 SCC
605; Commandant, 20th Battalion, ITB Police v. Sanjay Binjola
[2001] 3 SCR 367 : (2001) 5 SCC 317; Lakhvir Singh v. State
of Punjab, [2021] 1 SCR 269 : (2021) 2 SCC 763 – referred to.
2308 [2025] 4 S.C.R.

Supreme Court Reports

List of Acts
Code of Criminal Procedure, 1973; Code of Criminal Procedure,
1898; Penal Code, 1860; Probation of Offenders Act, 1958.

List of Keywords
Grant of probation; Release of the offender on probation; Probation;
Matter remitted; Probation officer; Release of an offender; Section
4 of the Probation Act; Jointly tried for offence; Dying declaration;
Report of probation officer; Failure of justice; Fine is not an
alternative to imprisonment; Court’s discretion to decide to extend
the benefit of probation; Probation as matter of right.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2065 of 2025
From the Judgment and Order dated 05.11.2019 of the High Court
of Judicature at Madras in CRLA No. 345 of 2012

Appearances for Parties
Advs. for the Appellants:
N. Rajaraman.
Advs. for the Respondent:
V. Krishnamurthy, Sr. A.A.G., Sabarish Subramanian.

Judgment / Order of the Supreme Court

Judgment

Dipankar Datta, J.
1. This appeal, by special leave, assails the judgment and order dated
5th November, 20191, passed by a learned Judge of the High Court of
Judicature at Madras, partly allowing the appellants’ criminal appeal2
under Section 374(2), Code of Criminal Procedure3.

1 impugned order
2 Crl. A No. 345/2012
3 Cr. PC
[2025] 4 S.C.R. 2309

Chellammal and Another v.
State Represented by the Inspector of Police

2. The two appellants, mother-in-law and husband, respectively, of the
deceased were jointly tried4 for commission of offences punishable
under Section 304-B and Section 498A, Indian Penal Code5. The
Sessions Judge (Mahila Court), Coimbatore6, vide its judgment and
order dated 25th May, 2012, acquitted the appellants of the charge
under Section 304-B, IPC but convicted them under Section 498-A,
thereof. While the 1st appellant was sentenced to a year’s rigorous
imprisonment, the 2nd appellant was sentenced to two years’ rigorous
imprisonment. Both the appellants were sentenced to fine too.
3. The High Court, vide the impugned order, maintained the conviction
of the appellants under Section 498A, IPC, together with the sentence
of a year’s rigorous imprisonment imposed on the 1st appellant;
however, the sentence of two years rigorous imprisonment imposed
on the 2nd appellant was reduced to a year’s rigorous imprisonment.
The sentence of fine was not touched.
4. It has been ascertained in course of hearing that the appellants have
not been in prison even for a single day.
5. We have heard Mr. N. Rajaraman, learned counsel for the appellants
and Mr. V. Krishnamurthy, learned senior counsel and Additional
Advocate General for the respondent-State Tamil Nadu at some
length.
6. The date of offence relates back to 11th January, 2008. It was the
birthday of the girl child of the 2nd appellant and the deceased.
A quarrel erupted over how to celebrate the child’s birthday with
the deceased and the 1st appellant having different ideas. The 1st
appellant had her way with the support of the 2nd appellant. This
infuriated the deceased, who was only 19 years old, to set herself
ablaze. Ultimately, she passed away on 16th January, 2008 because
of the burn injuries sustained by her. In the dying declaration of
the deceased (dated 11th January, 2008), we find that she truthfully
declared that the appellants never demanded dowry. This paved
the way for the appellants’ acquittal for the graver offence of dowry
death. However, we have found allegations in the dying declaration

4 S.C. No.37 of 2009
5 IPC
6 Sessions Judge
2310 [2025] 4 S.C.R.

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of the deceased that the appellants occasionally beat her as well
as hurled abuses towards her by calling her a mental patient. The
Sessions Judge and the High Court having returned finding of facts
on appreciation of the evidence on record that the appellants are
guilty of the offence under Section 498A, IPC, we do not propose
to interfere with the conviction.
7. However, 17 years have passed since the date of the incident.
Prior to the incident of crime, the appellants were not involved in
any crime. During these 17 years too, they did not indulge in any
further crime. On the other hand, they have looked after the child
of the 2nd appellant and the deceased well and she is now an adult
of 19 years, pursuing her education.
8. Based on such facts and circumstances and urging us to consider
the negative impact that could befall the now adult girl child of the
2nd appellant and the deceased if her grandmother and father were
to be imprisoned, Mr. Rajaraman implored this Court to set aside
the sentence of imprisonment by enhancing the fine.
9. Unfortunately, that is not a permissible course of action in view
of Section 498A, IPC. It ordains that a woman’s husband or the
husband’s relative, if found guilty of subjecting the woman to
cruelty, shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine. Thus, fine is
not an alternative to imprisonment. What, therefore, survives for
consideration is the question of grant of probation, either under the
Cr. PC or the Probation of Offenders Act, 19587.
10. Bare perusal of the order on sentence of the Sessions Judge and
the impugned order of the High Court reveal that both the courts
omitted to consider, and we assume it to be inadvertent, whether the
appellants could be granted the benefit of probation either under sub-
section (1) of Section 360, Cr. PC 8 or Section 4 of the Probation Act.

7 Probation Act
8 360. Order to release on probation of good conduct or after admonition.—(1) When any person not
under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment
for a term of seven years or less, or when any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or imprisonment for life, and no previous conviction
is proved against the offender, if it appears to the Court before which he is convicted, regard being had
to the age, character or antecedents of the offender, and to the circumstances in which the offence
was committed, that it is expedient that the offender should be released on probation of good conduct,
[2025] 4 S.C.R. 2311

Chellammal and Another v.
State Represented by the Inspector of Police

11. Insofar as relevant for the purpose of the present appeal, Section
360, Cr. PC enabling release on probation of good conduct ordains
that when any person not under twenty-one years of age is convicted
of an offence punishable with fine only or with imprisonment for a
term of seven years or less, and no previous conviction is proved
against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents
of the offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be released
on probation of good conduct, the Court may, instead of sentencing
him at once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear and receive
sentence when called upon during such period (not exceeding three
years) as the Court may direct and in the meantime to keep the
peace and be of good behaviour.
12. Similarly, Section 3619, Cr. PC mandating special reasons to be
recorded in certain cases, provides that in any case where the Court
could have dealt with an accused person under Section 360 or under
the provisions of the Probation Act, but has not done so, it shall
record in its judgment the special reasons for not having done so.
13. Apart from Section 360 providing for the benefit of probation, which
was also previously provided by Section 562 of Code of Criminal
Procedure, 1898, we noticed that the Parliament in 1958 had enacted
the Probation Act with the avowed object of providing scope of
reformation to convicts who deserve such benefits. Sub-section (3)

the Court may, instead of sentencing him at once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear and receive sentence when called upon during
such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace
and be of good behaviour:
Provided that where any first offender is convicted by a Magistrate of the second class not specially
empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section
should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate
of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate,
who shall dispose of the case in the manner provided by sub-section (2).
9 361. Special reasons to be recorded in certain cases.—Where in any case the Court could have dealt
with,—
(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958
(20 of 1958), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in
force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record
in its judgment the special reasons for not having done so.
2312 [2025] 4 S.C.R.

Supreme Court Reports

of Section 110 of the Probation Act stipulates that it (the Act) shall
come into force in a State on such date as the State Government
may by notification in the Official Gazette appoint. Section 411 thereof,
to the extent relevant for ascertaining who is entitled to the benefit of
probation, stipulates that when any person is found guilty of having
committed an offence not punishable with death or imprisonment for
life and the court by which the person is found guilty is 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, then, notwithstanding
anything contained in any other law for the time being in force, the
court may, instead of sentencing him at once to any punishment,
direct that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during
such period, not exceeding three years, as the court may direct,
and in the meantime to keep the peace and be of good behaviour.

10 1. Short title, extent and commencement.—(1) …
(2) …
(3) It shall come into force in a State on such date as the State Government may, by notification in the
Official Gazette, appoint, and different dates may be appointed for different parts of the State.
11 4. Power of court to release certain offenders on probation of good conduct.—(1) When any
person is found guilty of having committed an offence not punishable with death or imprisonment for life
and the court by which the person is found guilty is 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, then, notwithstanding anything contained in any other law for the
time being in force, the court may, instead of sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without sureties, to appear and receive sentence when
called upon during such period, not exceeding three years, as the court may direct, and in the meantime
to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender
or his surety, if any, 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.
(2) Before making any order under sub-section (1) is made, the court shall take into consideration the
report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in addition pass a supervision order directing that the
offender shall remain under the supervision of a probation officer named in the order during such period,
not being less than one year, as may be specified therein, and may in such supervision order or impose
such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is
released, to enter into a bond, with or without sureties, to observe the conditions specified in such order
and such additional conditions with respect to residence, abstention from intoxicants or any other matter
as the court may, having regard to the particular circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms
and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation officer concerned.
[2025] 4 S.C.R. 2313

Chellammal and Another v.
State Represented by the Inspector of Police

14. Section 19 of the Probation Act12, however, provides that subject to
the provisions of Section 18 thereof, Section 562 of the Code (i.e., the
Code of Criminal procedure, 1898) shall cease to apply to the States
or parts thereof in which it (the Probation Act) is brought into force.
15. Having looked at Section 19 of the Probation Act, we needed a
clarification as to whether the provisions thereof were brought into
force in the State of Tamil Nadu.
16. While the hearing was in progress, Mr. Nagamuthu, learned senior
counsel was found to be present in Court. His assistance was
sought by us.
17. Mr. Nagamuthu immediately assisted us by referring to various
precedents and later handed over a compilation of judgments on
the issue of probation.
18. Based on the same and other precedents, we propose to decide
the surviving issue in this appeal as to whether the High Court was
justified in not extending the benefit of probation to the appellants.
19. Responding to our query as to whether the Probation Act has
been brought into force in the State of Tamil Nadu, as ordained
in Sections 1(3) and 19 thereof, Mr. Nagamuthu referred us to the
decision of this Court in State v. A. Parthiban13. While submitting
that the provisions of the Probation Act were brought into force in
the State of Tamil Nadu in the year 1964, our attention was pointedly
drawn to paragraph ‘10’ of the said decision.
20. On the question whether it is a mandatory duty cast upon the court
to record reasons for not invoking Section 360, Cr. PC or Section
4 of the Probation Act, Mr. Nagamuthu, invited our attention to the
order passed in Chandreshwar Sharma v. State of Bihar14. Relevant
excerpt from such order reads as follows:
“3. … From the perusal of the judgment of the learned
Magistrate as well as the court of appeal, and that of the
High Court, it transpires that none of the forums below had

12 19. Section 562 of the Code not to apply in certain areas.—Subject to the provisions of Section 18,
Section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought
into force.
13 (2006) 11 SCC 473
14 (2000) 9 SCC 245
2314 [2025] 4 S.C.R.

Supreme Court Reports

considered the question of applicability of Section 360 of
the Code of Criminal Procedure. Section 361 and Section
360 of the Code on being read together would indicate
that in any case where the court could have dealt with an
accused under Section 360 of the Code, and yet does not
want to grant the benefit of the said provision then it shall
record in its judgment specific reasons for not having done
so. This has apparently not been done, inasmuch as the
Court overlooked the provisions of Sections 360 and 361
of the Code of Criminal Procedure. As such, the mandatory
duty cast on the Magistrate has not been performed. …”
21. However, Mr. Nagamuthu was prompt in submitting that the decision
in Chandreshwar (supra) had no occasion to deal with the Probation
Act and, therefore, it is not expressly held that the Probation Act also
casts such duty; however, the same being a beneficial legislation, he
submitted that this Court may draw analogy from Sections 360 and
361, Cr. PC and hold that after recording a conviction it is mandatory
for the courts to consider the stated circumstances and, instead
of sentencing the offender at once to any punishment, determine
whether he deserves extension of the benefit of Section 4 of the
Probation Act.
22. Mr. Nagamuthu also cited the following decisions where law has
been laid down to the effect as noted below:
(i) Ishar Das v. State of Punjab15, where it has been held that
Section 4(1) of the Probation Act makes no distinction between
a convict below 21 years or otherwise and it is applicable to
all ages.
(ii) Dalbir Singh v. State of Haryana 16 , where this Court
emphasized that the courts have to form an opinion that it is
expedient to release the offender on probation and such opinion
is mandatory.
(iii) Jagdev Singh and other v. State of Punjab17, holds that
it is permissible for the Supreme Court to deal with the plea

15 (1973) 2 SCC 65
16 (2000) 5 SCC 82
17 (1974) 3 SCC 412
[2025] 4 S.C.R. 2315

Chellammal and Another v.
State Represented by the Inspector of Police

of application of the Probation Act for the first time in special
circumstances, where the relevant material relating to the
circumstances in which an offence is committed is on the
record and that this Court may justifiably grant such benefit to
an appellant while finding him guilty; however, in the absence
of materials, such a prayer may well be disallowed if made for
the first time on appeal by special leave.
(iv) While granting benefit of Section 4 of Probation Act, this Court
in Rajbir v. State of Haryana18 held that the circumstances of
the case, the nature of the offence and the character of the
offender have to be taken into account.
(v) In MCD v. State (NCT of Delhi)19, construing the word “shall”
appearing in sub-section (2) of Section 4 of the Probation Act
as mandatory, this Court held that before granting an order for
probation, it is essential to obtain the report of the Probation
Officer; however, the court may not be bound thereby.
23. At the dawn of this century, this Court in Commandant, 20th Battalion,
ITB Police v. Sanjay Binjola20 dwelled on the object of the Probation
Act and what was held has been echoed, fairly recently, in Lakhvir
Singh v. State of Punjab21. After noticing the Statement of Objects
and Reasons22 of the Probation Act, the coordinate Bench in the
latter decision observed that the SoR explains the rationale for the
enactment and its amendments : to give the benefit of release of
offenders on probation of good conduct instead of sentencing them
to imprisonment. Thus, the increasing emphasis on the reformation
and rehabilitation of offenders as useful and self-reliant members of
society without subjecting them to the deleterious effects of jail life
is what is sought to be subserved.
24. The decision in Hari Singh v. Sukhbir Singh23 provides the guiding
light as to how first-time offenders are to be dealt. It was observed
therein that:

18 (1985) Supp. SCC 272
19 (2005) 4 SCC 605
20 (2001) 5 SCC 317
21 (2021) 2 SCC 763
22 SoR
23 (1988) 4 SCC 551
2316 [2025] 4 S.C.R.

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“8. … Many offenders are not dangerous criminals but are
weak characters or who have surrendered to temptation
or provocation. In placing such type of offenders, on
probation, the court encourages their own sense of
responsibility for their future and protects them from
the stigma and possible contamination of prison. In this
case, the High Court has observed that there was no
previous history of enmity between the parties and the
occurrence was an outcome of a sudden flare up. These
are not shown to be incorrect. We have already said that
the accused had no intention to commit murder of any
person. Therefore, the extension of benefit of the beneficial
legislation applicable to first offenders cannot be said to
be inappropriate.”
25. In Gulzar v. State of Madhya Pradesh24, the following instructive
passages are found:
“11. Where the provisions of the PO Act are applicable
the employment of Section 360 of the Code is not to be
made. In cases of such application, it would be an illegality
resulting in highly undesirable consequences, which the
legislature, who gave birth to the PO Act and the Code
wanted to obviate. Yet the legislature in its wisdom has
obliged the court under Section 361 of the Code to apply
one or the other beneficial provisions; be it Section 360
of the Code or the provisions of the PO Act. It is only by
providing special reasons that their applicability can be
withheld by the court. The comparative elevation of the
provisions of the PO Act are further noticed in sub-section
(10) of Section 360 of the Code which makes it clear that
nothing in the said section shall affect the provisions of
the PO Act. Those provisions have a paramountcy of their
own in the respective areas where they are applicable.
12. … The scope of Section 4 of the PO Act is much wider.
It applies to any person found guilty of having committed
an offence not punishable with death or imprisonment for
life. Section 360 of the Code does not provide for any role

24 (2007) 1 SCC 619
[2025] 4 S.C.R. 2317

Chellammal and Another v.
State Represented by the Inspector of Police

for Probation Officers in assisting the courts in relation
to supervision and other matters while the PO Act does
make such a provision. While Section 12 of the PO Act
states that the person found guilty of an offence and dealt
with under Section 3 or 4 of the PO Act shall not suffer
disqualification, if any, attached to conviction of an offence
under any law, the Code does not contain parallel provision.
Two statutes with such significant differences could not be
intended to co-exist at the same time in the same area.
Such co-existence would lead to anomalous results. The
intention to retain the provisions of Section 360 of the
Code and the provisions of the PO Act, as applicable at
the same time in a given area, cannot be gathered from
the provisions of Section 360 or any other provision of the
Code. Therefore, by virtue of Section 8(1) of the General
Clauses Act, where the provisions of the Act have been
brought into force, the provisions of Section 360 of the
Code are wholly inapplicable.”
26. On consideration of the precedents and based on a comparative
study of Section 360, Cr. PC and sub-section (1) of Section 4 of the
Probation Act, what is revealed is that the latter is wider and expansive
in its coverage than the former. Inter alia, while Section 360 permits
release of an offender, more twenty-one years old, on probation
when he is sentenced to imprisonment for less than seven years or
fine, Section 4 of the Probation Act enables a court to exercise its
discretion in any case where the offender is found to have committed
an offence such that he is punishable with any sentence other than
death or life imprisonment. Additionally, the non-obstante clause in
sub-section gives overriding effect to sub-section (1) of Section 4 over
any other law for the time being in force. Also, it is noteworthy that
Section 361, Cr. PC itself, being a subsequent legislation, engrafts
a provision that in any case where the court could have dealt with
an accused under the provisions of the Probation Act but has not
done so, it shall record in its judgment the special reasons therefor.
27. What logically follows from a conjoint reading of sub-section (1) of
Section 4 of the Probation Act and Section 361, Cr. PC is that if
Section 360, Cr. PC were not applicable in a particular case, there is
no reason why Section 4 of the Probation Act would not be attracted.
2318 [2025] 4 S.C.R.

Supreme Court Reports

28. Summing up the legal position, it can be said that while an offender
cannot seek an order for grant of probation as a matter of right but
having noticed the object that the statutory provisions seek to achieve
by grant of probation and the several decisions of this Court on the
point of applicability of Section 4 of the Probation Act, we hold that,
unless applicability is excluded in a case where the circumstances
stated in sub-section (1) of Section 4 of the Probation Act are attracted,
the court has no discretion to omit from its consideration release
of the offender on probation; on the contrary, a mandatory duty is
cast upon the court to consider whether the case before it warrants
releasing the offender upon fulfilment of the stated circumstances.
The question of grant of probation could be decided either way. In
the event, the court in its discretion decides to extend the benefit of
probation, it may upon considering the report of the probation officer
impose such conditions as deemed just and proper. However, if the
answer be in the negative, it would only be just and proper for the
court to record the reasons therefor.
29. For the foregoing reasons and in the light of the factual matrix, we
are unhesitatingly of the opinion that the Sessions Judge and the
High Court by omitting to consider whether the appellants were
entitled to the benefit of probation, occasioned a failure of justice.
Consequently, there was no worthy consideration as to whether the
appellants could be extended the benefit of probation.
30. We are conscious that in MCD (supra), since followed in State of
Madhya Pradesh v. Man Singh25, this Court has held that the report
of the probation officer referred to in sub-section (2) of Section 4 of
the Probation Act is a condition precedent and, therefore, must be
complied with by the trial courts and the high courts. Importantly, it
has also been held that the courts may not be bound by such report.
In such view of the matter, we need to make appropriate directions.
31. Accordingly, while maintaining the conviction recorded against the
appellants but looking to the facts and circumstances, we are inclined
to remit the matter to the High Court for limited consideration of
the question of grant of probation to the appellants upon obtaining
a report of the relevant probation officer. It is ordered accordingly.

25 (2019) 10 SCC 161
[2025] 4 S.C.R. 2319

Chellammal and Another v.
State Represented by the Inspector of Police

32. Till such time the appropriate Bench of the High Court decides
the question as indicated above, the order of this Court dated 10th
January, 2020, granting the appellants exemption from surrendering
will continue.
33. This appeal, accordingly, stands disposed of on the aforesaid terms.
34. Pending applications, if any, stand closed.
35. Before parting, we record our sincere appreciation for the invaluable
assistance rendered to us by Mr. Nagamuthu.

Result of the case: Appeal disposed of.

†
Headnotes prepared by: Ankit Gyan