Holding

An appellate or revisional court lacks jurisdiction under Section 386(e) CrPC to order that a conviction and sentence shall not affect the convict's service career, but the respondent is entitled to probation under the Probation of Offenders Act, 1958.

Summary

The respondent, a constable of the Indo‑Tibetan Border Police, was convicted under Section 10(1) of the Central Reserve Police Force Act and sentenced to three months' imprisonment. On appeal, the appellate court modified the sentence and directed that the order would not adversely affect the respondent's service career. The High Court, relying on Section 386(e) of the Code of Criminal Procedure, upheld the appellate court's direction, which was challenged before the Supreme Court. The Supreme Court held that Section 386(e) does not empower an appellate or revisional court to pass orders interfering with a convict's service conditions, and therefore the direction was invalid. However, the Court found the offence to be trivial and, applying the Probation of Offenders Act, 1958, granted the respondent the benefit of probation and set aside the impugned order.

Issues considered

Whether Section 386(e) of the Code of Criminal Procedure authorises an appellate court to direct that a conviction and sentence shall not affect the service career of the convict.
Whether such a direction can be treated as an order under the Probation of Offenders Act, 1958.
Whether the respondent is entitled to the benefit of Sections 3, 4 and 12 of the Probation of Offenders Act for an offence under Section 10(1) of the Central Reserve Police Force Act.

Legislation cited

Central Reserve Police Force Act, 1949s. 10(1)
Code of Criminal Procedure, 1973s. 386(e)
Probation of Offenders Act, 1958s. 12, s. 3, s. 4

Subjects

Criminal appellate jurisdictionSection 386 CrPCProbation of Offenders Actservice careerconvictionincidental orderCentral Reserve Police Force Actleniency

Judgment

COMMANDANT 20 BN. ITB POLICE A
v.
SANJAY BINJOLA

MAY 2, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Code of Criminal Procedure, 1973.
7
Section 386-Clause (e)-Appe//ate Court-Power to make amendment
in the impugned order-Power to make incidental order that may be just and C
proper-Scope of power-Does not include power to interfere with service
career of the accused.

Inda Tibetan Border Po/ice-Constable-Conviction under Section
JO(n) of the Central Reserve Police Force Act, 1949-Ap~eal-Direction
given by appellate court-Conviction and sentence should not affect service D
career of the accused-Held invalid.

Probation of Offenders Act, 1958--Sections 3 and 4

Object of the Act discussed-Accused convicted under Section lO(n) of E
the Central Reserve Police Force Act, 1949-Held, Entitled to benefit of
probation.

The respondent, a Constable.oflndo-Tibetan Border Police, was convicted
under Section lO{n) of the Central Reserve Police Force, Act, 1949 and
sentenced to imprisonment for a period of three months. The appellate court F
modified the sentence but further directed that the order passed by it shall
not adversely affect the service career of the accused. This direction given
by the appellate court was challenged in revision before the High Court.
Relying upon clause (e) of Section 386 of the Code of Criminal Procedure,
1973 the High Court held that the appellate court had the power to pass the G
impugned order.

In appeal to this Court it was contended on behaifof the appellant that
the appellate as well as the revisional court had no jurisdiction to direct that
the conviction and sentence awarded to the respondent would not adversely
affect his service career.
367 H
368 SUPREME COURT REPORTS [2001] 3 S.C.R.

A On behalf of the respondent it was contended that even if it is conceded
that the High Court had no jurisdiction to pass the impugned order, the said
order may be treated to have been passed under the Probation of Offenders
Act, 1958.

Allowing the appeal and setting aside the impugned order, the Court
B
HELD : 1. The High Court committed a mistake of law by clothing the
order of the appellate court to be an order passed in terms of Section 386
of the Code of Criminal Procedure, 1973. After passing the order of conviction
and sentence, the criminal court should not have issued any direction relating
to the service career of the respondent which is governed by the Act, Rules
C made thereunder the service rules governing his conditions of service.
[372-C]
2. Clause (e) of S.386 of Cr. P.C. empowers the Court to make any
amendment or pass any consequential or incidental order that may be just
or proper. Orders contemplated under the said clause are only such orders
D which are permissible under the Code or any other law in force. Such a
power does not confer a jurisdiction upon the appellate court to pass orders
which tend to interfere with the service career of the convict. Amendment
of the order means amendment of the main order and does not empower the
court to pass an order which affects the rights of a party not before it.
E Incidental or consequential orders are such orders which are permissible
under law and likely to follow as a result of the main order. The consequential
or incidental orders contemplated under clause (e) are orders which follow
as a matter of course being necessary compliments to the main orders without
which the latter would be incomplete and ineffective, such as issuance of
directions for refund of fine realised from accused ultimately acquitted or
F on the reversal of acquittal any direction as to punishment, fine or
compensation payable under Section 250 of the Code and the like.
[371-G-H; 372-A-B]
3. Probation of Offenders Act, 1958 has been enacted in view of the
increasing emphasis on the reformation and rehabilitation of the offenders
G as a useful and self-reliant members of society "\vithout subjecting them to
deleterious effects of jail life. The Act empowers the Court to release on
probation, in all suitable cases, an offenller found guilty of having committed
an offence not punishable with death or imprisonment for life or for the
description mentioned in Sections 3--and 4 of the said Act. [372-F]

H 4. It is true that nobody can claim the benefit of Sections 3 and 4 of
COMMANDANT 20 BN. ITB POLICE v. SANJAY BINJOLA [SETHI, J.] 369
the Probation of Offenders Act as a matter of right and the court has_ to pass A
.. appropriate orders in the facts and circumstances of each case having regard
to the nature of the offence, its general effect on the society and the character
of the offender, etc. There are laws which specifically direct that the provisions
of Probation of Offenders Act shall not apply to the persons convicted for
those offences and there may be cases under other laws as well which may
not justify the exercise of the powers of Probation of Offenders Act. Even B
apart from such exclusions the courts should be wary of extending the benefit
of Probation of Offenders Act to offences relating to corruption, narcotic
drugs, etc. However, in a case of a trivial nature as the respondent is stated
to have committed and keeping in view its peculiar circumstances, it is a fit
case where powers under Section 3 of the Probation of Offenders Act can C
be exercised. [373-G-H; 374-A-C]

Despite confirmation of conviction by the Sessions Judge, the respondent '
be given the benefit of Probation of Offenders Act. The respondent shall also
be entitled to the benefit of Section 12. [374-D]
D
Dalbir Singh v. State of Haryana, [2000) 5 SCC 82, explained and
distinguished.
•. CRIMINAL APPfLLATE ruRISDICTION : Criminal Appeal No.
591of2001.
From the Judgment and Order dated 11.2.2000 of the Allahabad High E
Court in Crl. Rev. No. 184/98.
AK. Kaul, Ms. B. Sunita Rao for Ms. Sushma Suri for the Appellant.
Sushil Kumar, Sanjoy Kumar Ghosh and Avijit Bhattacharjee for the
Respondent. F
The Judgment of the Court was delivered by
SETHI, J. Leave granted.

The respondent, who was a constable in Indo-Tibetan Border Police, G
was found over-drunk on 26th November, 1992 and absent at the time of the
roll-call. It was alleged that under the influence of liquor he entered the house
of Commandant of the Battalion and thus committed the offence punishable
under Section 16(2) of the Central Reserve Police Force Act, 1949 (hereinafter
called "the Act"), by which he was admittedly governed. Upon trial, the
Commandant of the Battalion who was also having the powers of the Magistrate H
370 SUPREME COURT REPORTS (2001] 3 S.C.R.

A of First Class convicted the respondent under Section IO(n) of the Act and
sentenced him to imprisonment for a period of three months. Aggrieved by
the order of conviction and sentence, the respondent filed an appeal which
was disposed of by the Additional' Sessions Judge, XII, Bareilly upholding
his conviction but modifying the sentence to the extent of till the rising of
B the court. The appellate court further directed that "this order shall not
adversely affect the service career of the accused''.

Aggrieved by .the order of the appellate court, the appellant herein filed
revision petition in the High Court submitting that the learned Sessions Judge
could not have passed the order directing that the conviction and sentence
C awarded to the respondent would not affect his service career, as after
conviction and sentence, it was for the appellate authorities to take or not to
take any appropriate consequential action but the criminal court had no
powers to issue the impugned directions. Relying upon Clause (e) of Section
386 of the Code of Criminal Procedure (hereinafter referred to as "the Code")
the High Court held that the appellate court had the power to pass the
D impugned order. Not satisfied with the order of the High Court, the present
appeal has been filed mainly on the ground that the appellate as well as the
revisional court had no jurisdiction to direct that the conviction and sentence
awarded to the respondent would not adversely affect his service career. It
is contended that the provisions of Section 386 of the Code have wrongly
E been applied by the High Court vide the judgment impugned.
Section 386 of the Cod~ provides :

"386. Powers of the Appellate Court-After perusing such record and
hearing the appellant or his pleader, if he appears, and the Public
Prosecutor, if he appears, and in case of an appeal under Section 377
F
or section 378, the accused, if he appears, the Appellate Court may,
if it considers that there is no sufficient ground for interfering, dismiss
~~~m~ .
(a) in an· appal from an order of acquittal, reverse such order and
direct that further inquiry be made, or that the accused be retried
G
or committed for trial, as the case may be, or find him guilty and
pass sentence on ,him according to law,
(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the
H accused, or order him to be retried by a court of competent
COMMANDANT 20 BN. ITB POLICE v. SAN JAY BINJOLA [SETHI, J.) 371
jurisdiction subordinate to such Appellate Court or committed A
for trial. or

(ii) alter the finding, maintaining, the sentence, or

(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence but not so B
as to enhance the same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the
y
accused or order him to be re-tried by a court competent to C
try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, so as to
enhance or reduce the same; D
(d) in an appeal from any other, order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order
that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused E
has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater
punishment for the offence which in its opinion the accused has
committed, than might have been inflicted for that offence by the
Court passing the order or sentence under appeal." F
Clause (e) empowers the Court to make any amendment or pass any
consequential or incidental order that may be just or proper. The powers of
· the court under this Section are subject to the other provisions of law. Orders
contemplated under clause (e) for amendment of the impugned order or G
consequential or incidental orders are only such orders which are permissible
under the Code or any other law in force. Such a power does not confer a
jurisdiction upon the appellate court to pass orders which tend to interfere
with the service career of the convict. Amendment of the order means
amendment of the main order and does not empower the court to pass an
order which affects the rights of a party not before it. Incidental or H
372 SUPREME COURT REPORTS [2001]3 S.C.R.

A consequential orders are such orders which are permissible under law and
likely to follow as a result of the main order. The consequential or incidental
orders contemplated under clause (e) of Section 386 of the Code are orders
which follow as a matter of course being necessary compliments to the main ·
orders without which the latter would be incomplete and ineffective, such as
issuance of directions for refund of fine realised from accused ultimately
B acquitted or on the reversal of acquittal any direction as to punishment, fine
or compensation payable under Section 250 of the Code and the like. The
High Court, therefore, committed a mistake of law by clothing the order of the
appellate court to be an order passed in terms of Section 386 of the Code.
We are of the opinion that after passing the order of conviction and sentence,
C the criminal court should not have issued any direction relating to the service
career of the respondent which is governed by the Act, Rules made thereunder
and the service rules governing his conditions of service. In this way the
judgment of the High Court being not sustainable is liable to be set aside.

Conceding that the appellate court or the High Court had no jurisdiction
D to' pass the impugned order in terms of Section 386 of the Code, Shri Sushil
Kumar, learned Senior Counsel appearing for the respondent submitted that
the impugned order may be treated to have been passed under the Probation
of Offenders Act, 1958. He vehemently argued that the circumstances existed
which justified the exercise of powers under Section 3 of the Probation of
Offenders Act. In view of the peculiar circumstances of the case we have
E opted to consider the submission made on behalf of the respondent and
dispose of the same in this appeal.

Probation of Offenders Act has been enacted in view of the increasing
emphasis on the reformation and rehabilitation of the Offenders as a useful
F and self-reliant members of society_ without subjecting them to deleterious
effects of jail life. The Act empowers the Court to release on probation, in all
suitable cases, an offender found guilty of having committed an offence not
punishable with death or imprisonment for life or for the description mentioned
in Sections 3 and 4 of the said Act.

G Section 3 of the Probation of Offenders Act provides:

"Power of court to release certain offenders after admonition - When
any person is found guilty of having committed an offence punishable
under Section 379 or Section 380 or Section 381 or Section 404 or
Section 420 of the Indian Penal Code (45 of 1860), or any offence
H punishable with imprisonment for not more than two years, or with
COMMANDANT 20 BN. ITB POLICE v. SANJAY BINJOLA (SETHI, J.] 373

fine, or with both, under the Indian Penal Code or any other law, and A
no previous conviction is proved against him 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 so to do, then,
notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him to any B
punishment or releasing him on probation of good conduct under
Section 4 release him after due admonition.

Explanation- For the purposes of this section, previous conviction
y
against a person shall include any previous order made against him
under this section or Section 4." C
It is not disputed that for an offence punishable under Section 10 of the
•• Act, the sentence provided is one year with fine entitling the respondent to
claim the benefit of Section 3 of the Probation of Offenders Act. It transpires
that both the appellate as well as the High Court, after passing the order of D
conviction and sentence and having regard to the circumstances of the case
including the nature of the offence and character of the offender, thought it
expedient to take a lenient view and instead of sending him to jail opted to
pass a sentence till the rising of the court. On the point of sentence, the
appellate court observed:
E
"I think it justified to consider leniently because the accused Sanjay
Binjola is a young boy and he just took excessive liquor on the
alleged liquor day. It is also to be kept in mind that in the para Military
forces liquor is provided comparatively cheaper to the para military
personnels, hence I find that the punishment given to the accused for
sentences of 3 months is severe consequently, I reach at the F
conclusion that the sentence awarded by the lower court is modified
accordingly."
., and in this context directed that the order of conviction and sentence would
not adversely affect the service career of the accused. It is true that nobody G
can claim the benefit of Sections 3 and 4 of the Probation of Offenders Act
as a matter of right and the court has to pass appropriate orders in the facts
and circumstances of each case having regard to the nature of the offence,
its general effect on the society and the character of the offender, etc. There
are laws which specifically direct that the provisions of Probation of Offenders
Act shall not apply to the persons convicted for those offences and there H
374 SUPREME COURT REPORTS [2001] 3 S.C.R.

A may be cases under other laws as well which may not justify the exercise of
the powers of Probation of Offenders Act. Even apart fro'm· such exclusions
the courts should be wary of extending the benefit of Probation of Offenders
Act to offences relating to'.corruption, narcotic drugs, etc. This' Court has"
indicated ill Dalbir Singh v. State of Haryana, (2000] 5 SCC 82 that benefit
of Probation of Offenders Act should not nor~ally be afforded in respect of
B the offences under Section 304A IPC when it involves rash or negligent
driving. Those- are instances for showing how the nature of the offence could
dissuade the court to give the benefit. However, in a case of a trivial nature
as the respondent is stated to have committed and keeping in view its peculiar
circumstances, we find it to be a fit case where powers under Section 3 of
C the Probation of Offenders Act can be exercised.

While allowing the appeal and setting aside the impugned order we
direct that despite confirmation of conviction by the learned Sessions Judge,
the respondent be given the benefit of Probation of Offenders Act. Instead
of sentencing him to any punishment, we direct the respondent to be released
D on his entering into a bond with two sureties, to appear and receive the
sentence when called upon during the period of two years and in the meantime
to keep the peace and be of good behaviour. The respondent shall furnish
the bond and the sureties before the Trial Magistrate within a period of two
months from today. We further hold respondent entitled to the benefit of
E Section 12 of the Probation of Offenders Act.

T.N.A. Appeal allm~ed.