MOHD HASHIM Vs. STATE OF UP AND OTHERS

Tags Cruelty Dowry

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1218 of 2016, Judgment Date: Nov 28, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1218 OF 2016
(Arising out of S.L.P. (Crl) No. 6104 of 2014)

Mohd. Hashim … Appellant

VERSUS

State of UP & Ors. …Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.
2. Respondent Nos. 2 to 10 were prosecuted for the offences punishable
under Sections 498-A and 323 of the Indian Penal 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 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 IPC and sentenced to undergo simple
imprisonment of six months and pay a fine of Rs.1,000/- (Rupees one
thousand only) each with the default 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.
3. The respondents challenged the judgment of conviction and order of
sentence before the learned Sessions Judge, Unnao, U.P. in Criminal Appeal
No.55 of 2013 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 (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 of 2013 before the
High Court. In its assail, the counsel for the informant placed reliance
on Shyam Lal Verma vs. Central Bureau of Investigation[1], State Through
SP, New Delhi vs. Ratan Lal Arora[2], and State represented by Inspector of
Police, Pudukottai, T.N. vs. A. Parthiban[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 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 related to the
Probation of Offenders Act, we have also heard Mr. Ranjit Kumar, learned
Solicitor General of India and Ms. Pinky Anand, learned Additional
Solicitor General for the Union of India.
6. There is no dispute over the fact that the respondents were convicted
as has been stated earlier. The question is whether the approach of the
learned appellate Judge which have been concurred by the High Court is
legally sustainable.
7. In this context, it is pertinent to appreciate the scheme of the PO
Act. Section 3 of the PO Act confers power on the Court to release certain
offenders after admonition. The said provision reads as follows:-
“3. 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 punishable with
imprisonment for not more than two years, 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 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 release
certain offenders on probation on good conduct. The said provision is 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 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), 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) 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 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 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.

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 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 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.

(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 (1) 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
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 the
respondents were convicted under Section 498-A of IPC 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 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 Shyam Lal Verma
(supra), a two-Judge Bench, after referring to Ratan Lal Arora (supra),
has held thus:-
“It is not in dispute that the issue raised in this appeal has been
considered by this Court in State Through SP, New Delhi Versus Ratan lal
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 respectively in addition
to the maximum sentences as well as imposition of fine, in such
circumstances claim for granting relief under the Probation of Offenders
Act is not permissible. In other words, in cases where a specific provision
prescribed a minimum sentence, the provisions of 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).”
[Emphasis added]

12. In this regard, the learned counsel appearing for the Union of India
has commended us to a three-Judge Bench Decision in Superintendent, Central
Excise, Bangalore vs. Bahubali[4] wherein the Court was dealing with the
case where the respondent was convicted by the High Court under Rule 126-
P(2)(ii) of the Defence of India Rules which prescribes a minimum sentence
of six months. Be it stated, the 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 of India Rules and the provisions of the PO Act and
opined thus:-

“… 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 if he is under 21 years of age and has committed an offence
punishable with imprisonment but not with imprisonment for life except
where it is satisfied that having regard to the circumstances of the 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
the Probation of Offenders Act, 1958 and Rule 126-P(2)(ii) 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 DI Rules which cast an
obligation on the court to impose a minimum sentence of imprisonment and
fine is reinforced by Section 18 of the Probation of Offenders Act, 1958
which saves the provisions of (1) Section 31 of the Reformatory School Act,
1897 (Act 8 of 1897), (2) sub-section (2) of Section 5 of the Prevention of
Corruption Act, 1947 (Act 2 of 1947), (3) the Suppression of Immoral
Traffic in Women and Girls Act, 1956 (Act 104 of 1956) 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, 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 of India Act, 1962 which is later than the 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
prescribing minimum punishment which are manifestly 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.”

13. It is profitable to state here that the Court referred to the
decision in Arvind Mohan Sinha vs. Amulya Kumar Biswas[5] wherein it has
been held thus:-
“The broad principle that punishment must be proportioned to the offence is
or ought to be of universal application save where the statute bars the
exercise of judicial discretion either in awarding punishment or in
releasing an offender on probation in lieu of sentencing him forthwith.”

14. At this juncture, we must state with promptitude that the three-Judge
Bench in Bahubali (supra) opined that the applicability of the PO Act as
has been held in Arvind Mohan Sinha (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 of the Defence of India Act, 1962 which
contains a non obstante clause.
15. The three-Judge Bench while adverting to the concept of “minimum
sentence”, relied on the observations made in Bahubali (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 of judicial discretion in 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
offender on probation in lieu of sentencing him by laying down a minimum
sentence of imprisonment, it has to prevail 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 Ratan Lal Arora (supra) the learned single Judge of the 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 Code. 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 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 in derogation of any other law for the time being in
force. Reliance was placed on the decision in Bahubali (supra) while
interpreting the said provision and relying on the authority in Bahubali
(supra) the Court ruled that Section 28 of the Prevention of Corruption Act
had a tenor of Section 43 of the Defence of India 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 in writing, the
Act did not carry any such power to enable the court concerned to show any
leniency below the minimum sentence stipulated. 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.”

17. The said principle has been reiterated in State represented by
Inspector of Police, Pudukottai, T.N. vs. A. Parthiban[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 clear that there
is no prescription of minimum sentence. Learned counsel for the appellant
would 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 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:

Provided that the Court may, for adequate and special reasons to be
mentioned in the 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 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. The said submission does not impress us in view of
the authorities in Arvind Mohan Sinha (supra) and Ratan Lal Arora (supra).
We may further elaborate 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 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 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 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 implications, which should be recognized 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
of Punjab[7]. Subba Rao, J., speaking for the majority, opined thus:-

“The Act is a milestone in the progress of the modern liberal
trend of reform in the field of penology. It is the result of
the recognition of the doctrine that the object of criminal law 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 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 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 circumstances
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.”

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
highlight how the discretion vested in a court under the PO Act is to be
exercised. In Ram Prakash vs. State of Himachal Pradesh[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 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 committing an
offence punishable with death or imprisonment for life and those who are
guilty of a lesser offence. Thereafter, the Court has proceeded to
observe:-
“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 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 circumstances
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 Bihar (AIR 1963 SC 1088).”

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 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 in Dalbir Singh vs. State of Haryana
and others[9] it has been held that Parliament has made it clear that only
if the Court forms the opinion that it is expedient 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 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:-
“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 Law Dictionary the word expedient is defined as “suitable and
appropriate for accomplishment of a specified object” besides the other
meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri[10] a
three-Judge Bench of 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 dictionary sense, ‘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 shade, it means a device
‘characterised by mere utility rather than principle, conducive to special
advantage rather than to what is universally right’ (see Webster’s New
International Dictionary).”

10. 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 in Section 4 of the 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 circumstances of the case,
particularly the nature of the offence, and the court forms its opinion
that it is suitable and appropriate for accomplishing a specified object
that the offender can be released on probation of good conduct.”

24. We have highlighted these aspects for the guidance of the appellate
court as it has exercised the jurisdiction in a perfunctory manner 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 respondents would submit
that no arguments on merits were advanced before the appellate court except
seeking release under the Po Act. We have made it clear 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
circumstances in entirety, we are also inclined to accept the submission of
the learned counsel for the respondents that it will be open for them to
raise all points before the appellate court on merits including seeking
release under the PO Act.
26. Resultantly, the appeal is allowed, the judgment and order passed by
the High Court and the appellate court are set aside and the matter is
remitted to the appellate court for disposal in accordance with law.

…...........................J.
(Dipak Misra)

..............................J.
(Amitava Roy)
New Delhi;
November 28, 2016.

-----------------------
[1] (2014) 15 SCC 340
[2] (2004) 4 SCC 590
[3] (2006) 11 SCC 473
[4] (1979) 2 SCC 279
[5] (1974) 4 SCC 222
[6] (2006) 11 SC 473
[7] AIR 1965 SC 444
[8] AIR 1973 SC 780
[9] AIR 2000 SC 1677
[10] AIR 1974 SC 2233

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