Supreme Court of India
MOHD. HASHIMversusSTATE OF UP & ORS.
- Citation
- 2016 INSC 1066
- Decided
- 28 November 2016
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
Sections 323, 498‑A IPC and Section 4 of the Dowry Prohibition Act do not prescribe a minimum sentence, so the PO Act applies, but the appellate court must assess the nature of the offence before granting probation.
Summary
The respondents were convicted under IPC sections 323 and 498‑A and under Section 4 of the Dowry Prohibition Act, 1961, and sentenced to imprisonment and fine. They sought release on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958. The question before the Supreme Court was whether Section 4 of the Dowry Act prescribed a minimum sentence, which would bar the application of the PO Act, and whether the court should consider the nature of the offences before granting probation. The Court held that neither IPC 323 nor 498‑A nor Section 4 of the Dowry Act impose a mandatory minimum sentence; therefore the PO Act can be invoked, but the appellate court must examine the nature of the offence and other conditions before granting probation. Consequently, the appeal was allowed, the judgments of the High Court and Sessions Court were set aside, and the matter was remitted to the appellate court for disposal in accordance with law.
Issues considered
- Whether Section 4 of the Dowry Prohibition Act, 1961 prescribes a minimum sentence that precludes the benefit of Section 4 of the Probation of Offenders Act, 1958.
- Whether the provisions of the Probation of Offenders Act, 1958 are applicable to offences under IPC sections 323 and 498‑A where no minimum sentence is prescribed.
- Whether the appellate court exercised its discretion under Section 4 of the PO Act by properly considering the nature of the offence and other statutory conditions.
Legislation cited
- Dowry Prohibition Act, 1961s. 4
- Indian Penal Code, 1860s. 323, s. 498-A
- Probation of Offenders Act, 1958s. 3, s. 4, s. 6
Subjects
Probation of Offenders Actminimum sentenceDowry Prohibition ActIPC 498-AIPC 323release on probationjudicial discretionnature of offence
Judgment
[2016) 9 S.C.R. 953
MOHD. HASHIM A
v.
STATE OF UP & ORS.
(Criminal Apneal No. 1218of2016)
NOVEMBER 28, 2016
[DIPAK MISRA AND AMITAVA ROY, JJ.]
Probation of Offenders Act, 1958 - s.4 - Powers of Court to
release certain offenders on probation of good conduct - Extension
of such benefit, only when offences under which conviction is done
does not prescribe for minimum sentence - Held: Minimum sentence
c
means a sentence which must be imposed without leaving any
discretion to the court - Howeve1~ if the legislation prescribes a
minimum sentence but grants discretion, the Courts, for reasons to
be recorded in writing, may mvard a lower sen~ence or not award a
sentence of imprisonment - A provision that gives discretion to the D
· Court not to award minimum sentence cannot be equated with a
provision which prescribes minimum sentence - On facts, offences
under which respondents were convicted do not prescribe minimum
sentence, hence, the provisions of the PO Act would apply - Howeve1;
before exercising power uls. 4 of the PO Act, the Court has to keep
E
in view the nature of offence and the conditions incorporated therein
- Matter accordingly remitted to the appellate court (Sessions Judge)
for disposal in accordance with law - Dow1y Prohibition Act, 1961
- s.4 - Penal Code, 1860 - ss. 323 and 498-A.
Allowing the appeal, the Court
F
HELD: 1.1 The respondents were convicted under Sections
323 and 498-A, IPC and under Section 4 the Dowry Prohibition
Act, 1961. On a plain reading of Section 323 and 498-A, IPC, it
is quite clear that there is no prescription of minimum sentence.
Further, the contention raised by the appellant with reference to
Section 4 of the 1961 Act that the legislature has stipulated for G
- imposition of sentence of imprisonment for a term which shall
not be less than six months and the proviso only states that
sentence can be reduced for a term of less than six months and,
therefore, it has to be construed as minimum sentence, cannot
be accepted. (Paras 2, 18 and 19][956-A; 963-D, G-H] H
953
954 SUPREME COURT REPORTS [2016] 9 S.C.R.
A . 2. When the legislature has prescribed minimum sentence
without discretion, the same cannot be reduced by the Courts.
In sucli cases, imposition of minimum sentence, be it
imprisonment or fine, is mandatory and leaves no discretion to
the court. However, sometimes the legislation prescribes a
minimum sentence but grants discretion and the courts, for
B
reasons to be recorded in writing, may award a lower sentence
or not award a sentence of imprisonment. Such discretion
includes the discretion not to send the accused to prison.
Minimum sentence means a sentence which must be imposed
without leaving any discretion to the court. It means a quantum
c of punishment which cannot be reduced below the period fixed.
If the sentence can be reduced to nil, then the statute does not
prescribe a minimum sentence. A provision that gives discretion
to the court not to award minimum sentence cannot be equated
with a provision which prescribes minimum sentence. The two
provisions, therefore, are not identical and have different
D
implications, which should be. recognized and accepted for the
Prohibition of Offenders Act, 1958Act. When there is no minimum
sentence, the provisions of the PO Act would apply [Para 19)(964-
A-D]
3.1 However, the Court before exercising the power under
E Section 4 of the PO Act has to keep in view the nature of offence
and the conditions incorporated under Section 4 of the PO Act.
[Para 23)(965-G]
3.2 In the present case, the appellate court (Sessions
Judge) has exercised the jurisdiction in a perfunctory manner.
F The matter is remitted to the appellate court for disposal in
accordance with law. The court has to be guided by the provisions
of the PO Act and the precedents of this Co.urt. It will be open
for the respondents-convicts to raise all points before the
appellate court on merits including seeking release under the
G PO Act. [Paras 24, 25 and 26)(967-B-D]
Shyam Lal Verma v. Central Bureau of Investigation
(2014) 15 SCC 340 : 2013 (1) SCR 398; State Through
SP, New Delhi v. Ratan Lal Arora (2004) 4 SCC 590 :
2004 (1) Suppl. SCR 631; Arvind Mohan Sinha v.
H
'·
MOHD. HASHIM v. STATE OF UP & ORS. 955
Amulya Kumar Biswas (1974) 4 SCC 222 : 1974 (3) A
SCR 133; Rattan Lal v. State of Punjab AIR 1965 SC.
444 : 1964 SCR 676 - relied on.
Superintendent, Central Excise, Bangalore v. Bahubali
(1979) 2 sec 279 - explained.
B
State represented by Inspector of Police, Pudukottai,
T.N. v. A. Parthiban (2006) 11 SCC 473 : 2006 (7)
Suppl. SCR 35; Ram Prakash v. State of Himachal
Pradesh AIR 1973 SC 780; Dalbir Sint.;h v. State of
Haryana and others AIR 2000 SC 1677 : 2000 (3) SCR
1000 - referred to. c
Case Law Reference
2013 (1) SCR398 relied on Para 11
2004 (1) Suppl. SCR 631 relied on Paras 16, 19
D
2006 (7) Suppl. SCR 35 referred to Para 17
(1979) 2 sec 219 explained Para 12
1974 (3) SCR 133 relied on Para 19
1964 SCR 676 relied on Para 20 E
AIR 1973 SC 780 referred to Para 21
2000 (3) SCR 1000 referred to Para 23
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
1218 of2016. F
From the Judgment and Order dated 09.05.2014 of the High Court
of Judic.ature at Allahabad, Lucknow Bench in Criminal Revision Petition
No. 252 of2013.
Amit Anand Tiwari, Ashutosh Jha, Kushagra Pandey, Abhinav
Raghuvanshi, Vinayak Gupta, Advs. for the Appellant. G
Ranjit Kumar, SG, Ms. Pinky Anand, ASG., Ms. Swarupama
Chaturvedi (For G. S. Makker), Ms. Pragati Neekhra, Utkarsh Sharma,
Ms. Rashmi Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by H
956 SUPREME COURT REPORTS [2016] 9 S.C.R.
A DIPAK MISRA, J. 1. Leave granted.
2. Respondent Nos. 2 to 10 were prosecuted for the offences
punishable under Sections 498-A and 323 of the Indian Pen.al Code (IPC)
.and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'the
1961 Act'). The respondent Nos.2 and 3 were convicted under Section
498-A IPC and sentenced to undergo rigorous imprisonment for two.
B
years and to pay a fine of Rs.1,000/- (Rupees one thousand only) each
with the default clause. The other accused, i.e., respondent nos.4 to 10
were convicted for the offence punishable under Section 498-A of the
!PC and sentenced to undergo simple imprisonment of six months and
pay a fine ofRs.1,000/- (Rupees one thousand only) each with the default
c clause. All the accused persons were convicted under Section 323 of
the IPC and Section 4 of the 1961 Act and sentenced to undergo rigorous
imprisonment for six months on the first count and for a period of one
year on the second score. They were also sentenced to pay fine with
the stipulation of the default clause.
D 3. The respondents challenge~ the judgment of conviction and
order of sentence before the learned Sessions Judge, Unnao, U.P. in
Criminal Appeal No.55of2013 who, in course of hearing, taking note of
the fact that the counsel appearing for the appellants had abandoned the
challenge pertaining to the conviction but only confined the argument
seeking benefit under Section 4 of the Probation of Offenders Act, 1958
E (for short, 'the PO Act'), extended the benefit as prayed for.
4. Being grieved by the aforesaid judgment of the learned appellate
Judge, the informant preferred Criminal Revision No.252 of20 I 3 before
the High Court. In its assail, the counsel for the informant placed reliance
on Sliyam Lal Verma vs. Central Bureau of Investigation 1, State
F Tlirougll SP, New Delhi vs. Ratan Lal Arora~, and State represented
by Inspector of Police, Pudukottai, T.N. vs. A. Partfliban 3 to buttress
the submission that the benefit under Section 4 of the PO Act could not
have been extended to the convicts regard being had to the nature of the
offences and the punishment provided for the same. The High Court
repelling the argument concurred with the opinion expressed by the
G learned Sessions Judge.
5. We have heard Mr. Ashutosh Jha, learned counsel for the
appellant, Ms. Pragati Neekhra, learned counsel for the State and Ms.
Rashmi Singh, learned counsel for the respondents. As the controversy
1
(20I4J 15 sec 340
1 (2004 l 4 sec 590
H ' (2006J 11 sec 473
·MOHD. HASHIM v. STATE OF UP & ORS. 957
[DIPAK MISRA, J.]
related to the Probation of Offenders Act, we have also heard Mr. Ranj it A
Kumar, learned Solicitor General oflndia and Ms. Pinky Anand, learned
Additional Solicitor General for the Union oflndia.
6. There is no dispute over the fact that the respondents were
convicted as ha:s been stated earlier. The question is whether the
. approach of the fearned appellate Judge wllich have been concurred by B
the High Court is legally sustainable.
7. I.n this context, it is pertinent to appreciate the scheme of the
PO Act. Sectio1d of the PO Act confers power on the Court to release
certain offenders after admonition. The said provision reads as follows:-
"3. Power of cour.t to release certain offenders after c
admonjtion.-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
punishable with imprisonment for not more than two years,
D
or with fine, or·with both, under the Indian Penal Code, or
any other law, and 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 E
anything contained in any other law for the time being in
force; the court may; instead of sentencing him to any
punishment or releasing him on probation of good conduct
under section 4 release him after due admonition."
8. Section 4 of the PO Act deals with the power of Court to F
release certain offenders on probation on good conduct. The said
provisioffis as under:-
"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 G
with death or imprisonment for life and the court by which
the person is found guilty is ofopinion 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 condu.ct, then,
H
958 SUPREME COURT REPORTS [2016] 9 S.C.R.
'·-
A 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 withoutsureties, to appear
and receive sentence when called upon during such period,
not exceeding three years, as the court may direct, and in
B
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
c 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), the court
shall take into consideration the report, if any, of the probation
officer concerned in relation to the case.
D
(3) When an order under sub-section ( 1) is made, 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
E order during such period, not being less than one year, as
may be specified therein, and may in such supervision order,
impose such conditions as it deems necessary for the due
supervision of the offender.
(4) The Collrt making a superv,ision order under sub-section
F (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
G 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 fum!sh one copy of the
H
MOHD. HASHIM v. STATE OF UP & ORS. 959
[DIPAK MISRA, J.]
supervision order to each of the offenders, the sureties, if A
any, and the probation officer concerned.
9. Section 6 of the PO Act stipulates restrictions on imprisonment
of offenders under twenty-one years of age. It is as under:-
"6. Restrictions on imprisonment of offenders under
twenty-one years of age.- (1) When any person under B
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 c
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 if the court passes any
sentence of imprisonment on the offender, it shall record its
reasons for doing so.
D
(2) For the purpose of satisfying itself whether it would not
be desirable to deal under section 3 or section 4. with an
offender referred to in sub-section (I) the. court shall call
for a report from the probation officer and consider the
report, if any, and any other information available to it relating
to the character and physical and mental condition of the E
offender."
We may note here that the appellate court. has exercised the power
under Section 4 of the PO Act.
10. It is submitted by the learned counsel for the appellant that as
F
the respondents were convicted under Section 498-A ofIPC and Section
4 of the 1961 Act, the respondents could not have been conferred the
benefit of probation on good conduct, for Section- 4 of the 1961 Act ,
prescribes a minimum sentence. Additionally, it is also canvassed by
him that even if the said provision is applicable, the Court has not
considered the nature of offences and other requisite aspects to extend G
the benefit under the said provision.
11. We shall deal with the first aspect, that is, whether Section 4
of the 1961 Act prescribes a minimum sentence, first. In Sltyam Lal
Verma (supra), a two-Judge Bench, after referring to Ratan Lal Arora
(supra), has held thus:- H
960 SUPREME COURT REPORTS [2016] 9 S.C.R.
A "It is not in dispute that the issue raised in this app~al has
been considered by this Court in State Through SP. New
Delhi Versus Ratan !al Arora (supra) wherein in similar
circumstances, this Court held that since Section 7 as well
as Section 13 of the Prevention of Corruption Act provide
for a minimum sentence of six months and one year
B
respectively in addition to the maximum sentences as well
as imposition of fine, in such circumstances claim for
granting reliefunder the Probation of Offenders Act is not
permissible. In other words. in cases where a specific
provision prescribed a minimum sentence, the provisions of _
c the Probation Act cannot be invoked. Similar view has been
expressed in State Represented by Inspector of Police.
Pudukottai. T.N. Vs. A. Parthiban (supra)."
fEmphasis addedl
12. In this regard, the learned counsel appearing for the Union of
D India has commended us to a three-Judge Bench Decision in
Superintendent, Central Excise, Bangalore vs. Ballubafi• wherein
the Court was dealing with the case where the respondent was convicted
by the High Court under Rule I 26-P(2)(ii) of the Defence oflndia Rules
which prescribes a minimum sentence of six months. Be it stated, the
E High Court had reversed the judgment of acquittal to one of conviction
but directed that the respondent therein be released on probation of good
conduct under Sections 3, 4 and 6 of the PO Act. Dealing with the
applicability of the PO Act, the Court scanned the anatomy of the Defence
oflndia Rules and the provisions of the PO Act and opined thus:-
F " ... It would also be seen that Section 6 of the
Probation of Offenders Act, 1958 puts a restriction on the
power of the court to award imprisonment by enjoining on
it not to sentence an offender to imprisonment ifhe is under
21 years of age and has committed an offence punishable
with imprisonment but not with imprisonment for life except
G where it is satisfied that having regard to the circumstances
ofthe,case including the nature of the offence and character
of the offender it would not be desirable to deal with him
under Sections 3 and 4 of the Probation of Offenders Act,
1958. The incompatibility between Sections 3, 4 and 6 of
H "r 1979) 2 sec 279
MOHD. HASHIM v. STATE OF UP & ORS. 961
[DIPAK MISRA, J.]
the Probation of Offenders Act, 1958 and Rule 126-P(2)(ii) A
of the DI Rules is, therefore, patent and does not require
an elaborate discussion. The view that the aforesaid
provisions of the Probation of Offenders Act, .1958 are·'
inconsistent with the provisions of the Dl Rules which cast
an obligation on the court to impose a minimum sentence of
B
imprisonment .and fine is reinforced by Section 18 of the
Probation of Offenders Act, 1958 which saves the
provisions of(l) Section 31 of the Reformatory School Act,
1897 (Act 8 of 1897), (2) sub-section (2) of Section 5 of ·
the Preventfon of Corruption Act, 1947 (Act.2of1947), (3)
the Suppression of Immoral Traffic in Women and Girls c
Act, 1956 (Act 104of1956) and (4) of any law in force in
any State relating to juvenile offenders or borstal schools,
which prescribe a minimum sentence."
After so stating, the Court further proceeded to state that:-
"The provisions of the Probation of Offenders Act, 1958, D
being, therefore, obviously inconsistent with:Rule 126~
P(2)(ii) of the DI Rules under which the minimum penalty
.. of six months' imprisonment and fine has to be imposed,
the former have to yield place to the latter in view of Section ·
43 of the Defence oflndiaAct, 1962 which is later than the E
Probation of Offenders Act, 1958 and embodies a non
obstante clause clearly overriding the. provisions of the
enactments which contain inconsistent provisions including
those of the Probation of Offenders Act to the extent of
inconsistency. The result is that the provisions of rules made
, and issued under the Defence of India Act prescribin& F
minimum punishment which are mal1ifestly inconsistent with
the aforesaid provisions of the Probation of Offenders Act
are put on par with the provisions of the enactments
specified therein so as to exclude them from applicability
of the Probation of Offenders Act." G
13. It is profitable to state here that the Court referred to the
decision in Arvi11d Moltm1 Sin It a vs. Amulya Kumar Biswas-' wherein
it has been held thus:-
"The broad principle that punishment must be proportioned
' ( 1974).4 sec 222 - H
962 SUPREME COURT REPORTS [2016] 9 S.C.R.
A to the uffence is or ought to be of universal· applkation
save where the statute bars the exercise ofjudicial discretion
either in awarding puniShment or in releasing an offender
on probation in lieu of sentencing him fort_hwith." ·
-14. At this juncture, we must state with promptitude that the three-
B Judge Bench in Baltubali (supra) opined that the applicability of the PO
Act as has been held in Arvind Mo/tan Sin/ta (supra) could not be
taken aid of inasmuch as attention of the Court was not seemed to have
been invited in the said case to Section 43 ofthe Defence oflndiaAct,
1962 which contains a 11011 obstante clause.
c- 15: The three-Judge·Bench while adverting to the concept of
"minimum sentence", relied on the observations made in Balmbali (supra)
which we have reproduced_ hereinabove, and opined that:-
"The above observations also clearly show that where there
is a ·statute which bars the exercise ofjudicial discretion in
D the matter of award of sentence, the Probation of Offenders
Act will have no application or relevance. As Rule 126-
., P(2)(ii) of the DI Rules manifestly bars the exercise of
judicial discretion in awarding punishment or in releasing
an offend~r 01) probation in liel) of sentencing him by laying
down a minimum sentepce of imprisonment, it has to prevail
E over the aforesaid provisions of the Probation of Offenders
Act, 1958 in view of Section 43 of the Defence of India
Act, 1962 which is later than the Probation of Offenders
Act and has an overriding effect."
16. In Rutan L(l/ Arom (supra) the learned single Judge of the
F Delhi High Court while upholding conviction of the accused under the
Prevention of Corruption Act, 1988 further held him to be entitled to the
benefits of Section 360 of the Code of Criminal Procedure. The Court
adverted to Section 7 and Section 13 of the Prevention of Corruption
Act which provide for minimum sentence of six months and one year
G respectively in addition .to the maximum sentence as well as imposition
of fine. Reference was made to Section 28 that stipulates that the
'' provisions of the Act shall be in addition to and not ih derog::ition ofany
other law for the time being in force. Reliance was pla0«d on the decision
in Ba/1ubali (supra) while interpreting the said provision and relying on
the '!Uthority in Baltubali (supra) the Court ruled that Section 28 of the
H
MOHD. HASHIM v. STATE OF UP & ORS. 963
[DIPAK MISRA, J.]
Prevention of Corruption Act had a tenor of S6ction 43 of the Defence A
oflndia
.
Act. In that context,
.'
it observed:-
''Unlike the provisions contained in Section 5(2) proviso of
.the old Act providing for imposition of a sentence lesser
than the minimum sentence of one year therein for any
"special reasons" to be recorded i.n writing, the Act did not B
carry any such power to enable the court concerned io
show any leniency bele>w the minimum sentence sti'pulated.
Consequently, the learned Single Judge in the High Court
committed a grave error of law in extending the benefit of .
probation even under the Code."
c
17. Tli.e said principle has been reiterated in State represented
by Inspector of Po/ice,-Pudukoitai, T.N. vs. A. Partlliban 6•
18. The issue that arises for consideration is whether minimum
sentence is provided for offences under which the respondents have
been convicted. On a plain reading of Section 323 and 498-A, it is quite D
cleitr that there is no prescription of minimum sentence. Learned counsel
for the appellant woufo contend that Section 4 of the 1961 Act provides
for minimum punishment. To appreciate the said contention, the provision
is reproduced below:-.
"4. Penalty for"demanding dowry.-If any person E
demands, directly or indirectly, from the parents or other .
relatives or guardian of a bride or bridegroom, as the case
may be, any dowry, he shall be punishable with imprisonment
for a term which shall not be less than six months, but which
may extend to two years and with fine which may extend
to ten thousand rupees: F
PrQvided that the Court may, for adequate and special
reasons to be ri'lentjoned in Hie judgment, impose a sentence
of imprisonment for a term. of less· than six months."
19. Learned counsel would submit that the legislature has stipulated
for imposition of sentence of imprisonment for a term which shall not be
less than six 11_1onths and the proviso only states that sentence can be
a
reduced for term of less than six months and, therefore, it has to be
construed as minimum sentence .. The said submission· does not impress
6
(2006) I I SC 473
H
964 SUPREME COURT REPORTS [2016) 9 S.C.R.
A us in view of the authorities in Arvind Mohan Sinha (supra) and Rutan
Lal Arora (supra). We may further elabor_ate that when the legislature
has prescribed minimum sentence without discretion, the same cannot
be reduced by the Courts. In such cases, imposition of minimum sentence,
be it imprisonment or fine, is mandatory and leaves no discretion to the
court. However, sometimes the legislation prescribes a minimum
B
sentence but grants discretion and the courts, for reasons to be recorded
in writing, may award a lower sentence or not award a sentence of
imprisonment. Such discr~tion includes the discretion not to send the
accused to prison. Minimum sentence means a sentence which must be
imposed without leaving any discretion to the court. It means a quantum·
c of punishment _which cannot be reduced below the period fixed. If the
sentence can be reduced to nil, then the statute does not prescribe a
minimum sentence. A provision that gives discretion to the court not to
award minimum sentence cannot be equa~ed with· a provision which
.,_ prescribes minimum sentence. The two provisions, therefore, are not
identical and have~ different implications, which should be recognized
D
and accepted for the PO Act.
20: Presently, we shall advert to the second plank of the submission
advanced by the learned counsel for the appellant. In Rattan Lal vs.
State ofPunjab 7 • Subba Rao, J ., speaklilg for the majority, opined thus:-
E "TheAct is a milestone in the progress of the modern liberal
frend of reform in the field of penology. H is the result of
the recognition of the doctrine that the object of criminal
·1aw is more to reform the individual offender than to punish
him. Broadly stated, the Act distinguishes offenders
below 21 years of age and those above that age, and
F · 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 the case of
offenders who are above the age of 21 years absolute
discretion is given to the court to release them after
G admonition or on probation of good conduct, subject to the
conditions laid down in the appropriate provisions of the
Act; in the case of offenders below the age of 21 years an
injunction is issued to the court not to sentence them to
imprisonment unless it is satisfied that having regard to the
7 AIR 1965' SC 444
H.
MOHD. HASHIM v. STATE OF UP & ORS. 965
[DIPAK MISRA, J.]
circumstances of the case; including the nature of the A
offence and the character of the offenders, it is not desirable
to deal with them under Sections· 3 and 4 of the Act."
We have reproduced the aforesaid passage to understand the
philosophy behind the Act'.'
21. In this regard, it is also. seemly to refer to other authorities to B
highlight how the discretion vested in a court under the PO Act is to be
exercised. In Ram Prakaslt vs. State of Himaclutf Pradeslt 8 , while
dealing with Section 4 of the PO Act in the context of the Prevention of
Food Adulteration Act, 1954, the Court opined that the word 'may' used
in Section 4 of the PO Act does not mean 'must'. On the contrary, as c
has been held in the said authority, it has been made clear in categorical
terms that the provisions of the PO Act distinguishes offenders below
21 years of age and those above that age and offenders who are guilty
of con.imitting an offence punishable with death or imprisonmenl for life
and those who are guilty of a lesser offence. Thereafter, the Court has
proceeded to observe:- "D
"While in the case of offenders who are above the age of
21 years, absolute discretion is given to the Court to release
them after admonition or on probation of good conduct in
the case of offenders below t11e age of2 l years, an injunction
is issued to the Court not to sentence them to imprisonment E
unless it is satisfied that having regard to the circumstar1ces
of the case, including the nature of the offence and the
character of the offenders, it is not desirable to deal with
them under Sections 3 and 4 of the Act. (Ratan Lal vs.
State of Punjab (supra) and Ramji Missir.vs. the State of F
Bihar (AIR 1963 SC I 088)."
22. Be it noted, in the said case, keeping in view the offence
under the Prevention of Food Adulteration Act, 1954, the Court declined
to confer the benefit under Section 4 of the PO Act.
23. We have referred to the aforesaid authority to stress the point G
that the Court before exercising the power under Section 4 of the PO
Act has to keep in view the nature of offence and the conditions
incorporated under Section 4 of the PO Act. Be it stated i11 Dllfbir SingIt
R AIR I 973 SC 780
H
966 ~UPREME COURT REPORTS [2016] 9 S.C.R.
A vs. State of Harya11a and otlzers'-ii. has been held that Parliament has
made it 9lear that only ifthe Court forms the opinion that it is expedienf
to release the convict on probation for the good conduct regard being
had to the circumstances of the case and one of the circumstances
which cannot be sidelined in forming the said opinion is "the nature of
the offence". The Court has further opined that though the discretion as
B
been vested in the court to decide when and how the court should form
such opinion, yet the provision itself provides sufficient indication that
releasing the convicted person on probation of good conduct must appear
to the Court. to be expedient. Explaining the word '.'expedient", the
Court held thus:-
c "9. The word "expedient" had been thoughtfully employed
by Parliament in the section so as to mean it as "apt and
suitable to the end in view". In Black's Lall' Dictionary
the word expedient is defined as "suitable and appropriate
for accomplishment of a specified object" besides the other
D meaning referred to earlier. In State of Gujarat v.
Jamnadas G Pabri 10 a three-Judge Bench or'this Court
has .considered the word ."expedient". Learned Judges have
. observed in para 21 thus:
';Again, the word 'expedient' used in this provisions, has
· several shades of meaning. In one dictfunary sense,
E
'expedient' (adj.) means 'apt and suitable to the end in
view', 'practical and efficient'; 'politic'; --profitable';
'advisable', 'fit, proper and suitable to the circumstances
of the case'. In another ...s.J.1ijde, it means a· device
'characterised by mere,utility rather than principle,
F conducive to special advantage rather than to what is
universally right' (see Webster's New lnternati_onal
Dictionary).:'
I 0. It was then held that the court must construe the said
word in keeping with the context and object of the provision
in its widest amplitude. Here the word "expedient" is used
G
in Section 4 ofthe PO Act in the context of casting a duty ·
on the court to take into account "the circumstances of the
case including the nature of the offence ... ". This means
Section 4 can be resorted to when the court considers the
9 AIR 2000 SC i 677
H '" AIR I 974 SC 2233
MOHD. HASHIM v. STATE OF UJi' & ORS. , 967
[DIPAK MISRA, J.]
circumstances of the case, particularly the nature of the - A
offence, and the court forms its opinion that it is suitable
and appropriate.for accom,plishing a specified objec(ihat
the offender cari be released on probation of good conduct."
24. We have highlighte<:I these aspects for the guidance of the
appe!late court as it has exercised the jurisdiction in a perfunctory manner B
and we are obligated to say that the High Court should have been well
advised to rectify the error.
25. At this juncture, learned counsel for the res.pondents would
submit that no~rguments on merits were ad~anced before the appellate
court except seeking release under the Po Act. We have made it clear c
that there is no minimum sentence, and hence, the provisions of the PO
Act would apply. We have also opined that the court has to be guided by-
the-provisions of the PO Act and the precedents of this Court. Regard
being had to the facts and cifrumstances..in entirety, we are also inclined
to accept the submission of the learned counsel for the responde-nts that
it will be open for them to raise all points b.efore t~~ appellate ~ourt on · D
merits including-seeking release under th& PO Act. - .
26. Resultantly, the appeal is allow:d, the judgment and qrder
passed_ by the High Court and the appellate. court are-set· aside and the .
matter is remitted to the appeilate c01.1rt for _disposal in accordance with
law. · · · ·E
Divya .Pandey Appeal allowed,
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