Supreme Court

Lakhvir Singh Etc. vs The State Of Punjab

MANU/SC/0026/2021

19.01.2021

Criminal

Benefit of probation under Probation of Offenders Act, 1958 is not excluded by the provisions of the mandatory minimum sentence prescribed for offences under IPC

The Appellants were youngsters aged 20 and 19 years, when they fell foul of the law. In pursuance to the reporting of the crime by complainant, an FIR was registered under Section 382 and Section 307 read with Section 34 of Indian Penal Code, 1860 (IPC). Knife and dagger were recovered alongwith the taxi and the trial Court framed charges under Section 397 of IPC. Post trial, the Appellants was convicted by the trial Court vide judgment and sentenced to undergo Rigorous Imprisonment of 7 years each. The appeal preferred by the Appellants has been dismissed by the impugned judgment.

The Appellants approached this Court by a special leave petition. The compromise deed arrived at between the complainant and the appellants, in terms whereof the complainant has stated that, he did not want to pursue any action against the Appellants and has no objection to their release on bail or acquittal. The Appellants have already served about 50% of their sentence while in custody. Counsel for Respondent no.2 confirmed that, the dispute had been amicably resolved. However, counsel for Respondent no.1 submitted that the minimum sentence provided by the statute under Section 397 is 7 years and the same cannot be reduced below that period. Learned counsel for the Appellants sought benefit under the Probation of Offenders Act, 1958.

Section 6 of the Act provides that, a Court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer’s report.

A more nuanced interpretation on this aspect was given in CCE vs. Bahubali. It was opined that, the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das that, the Court cannot award a sentence less than the mandatory sentence prescribed by the statute.

The benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. The facts of the present case are that, the Appellants have not served out the minimum sentence of 7 years though they have served about half the sentences. They were aged under 19 and 21 years of age as on the date of offence but not on the date of sentence. The redeeming feature in their case is that, the person who suffered, appears to have forgiven them, possibly with the passage of time. There is no adverse report against them about their conduct in jail otherwise the same would have been brought to our notice by learned counsel for the State. Present is a fit case that the benefit of probation can be extended to the Appellants under the said act in view of the provisions of Section 4 of the said Act on completion of half the sentence.

Present Court thus, release the Appellants on probation of good conduct under Section 4 of the said Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence. The appeals are disposed of.

Tags : Probation Benefit Entitlement

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