- (1.) THIS is an appeal by the accused Suja against the judgment and order of the Additional Sessions Judge, Ajmer, dated the 22nd November, 1963 convicting him of an offence under sec. 304 Part II of the Indian Penal Code and sentencing him to rigorous imprisonment for 3-1/2 years.
(2.) THE only point which has been raised before me in this appeal by learned counsel for the appellant is that as the appellant was less than 21 years of age at the time of the date of the judgment of the trial court, that court should not have sentenced him to any term of imprisonment at all but should have given him the benefit of sec. 6 of the Probation of Offenders Act, 1958 (Act No. 20 of 1958, hereinafter called the Act ). In view of the narrow controversy that has been raised before me, I do not consider it necessary to deal with the merits of the case though if I were to express an opinion on that aspect thereof, I have no hesitation in saying that the conviction of the accused under sec. 304, Part II IPC is perfectly correct on the material which was before the trial court. Now, sec. 6 of the Act reads as follows - " (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 he 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 sec. 3 or sec. 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 sec. 3 or sec. 4 with an offender referred to in' sub-sec. (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. " Sec. 3 deals with the power of the court to release offenders after due admonition found guilty of having committed an offence under certain specified sections of the Indian Penal Code in particular, or of having committed an offence punishable with imprisonment for not more than two years or with fine or with both under the Indian Penal Code generally and where no previous conviction is proved against him. That section is obviously not attracted into application in the present case. Then follows sec. 4 which omitting its immaterial portion is as follows: - " (1) When any persons is found guilty of having committed an offence not punishable with death or imprisonment for life 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. x x x (2) Before making any order under sub-sec. (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3 ). . . . . . . . . . . . . (4 ). . . . . . . . . . . . (5 ). . . . . . . . . . . . . " Reading sections 4 and 6 together, it would be obvious that the latter section is, as it were, a proviso to the former and is a special provision made by the Legislature for the benefit of offenders under 21 years of age. The section enacts in the case of offenders under 21 years of age that where such an offender has been found guilty by a court of having committed an offence punishable with imprisonment but not with imprisonment for life, then such court shall not ordinarily sentence him to imprisonment and before doing so must satisfy itself whether 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 sec. 3 or under sec. 4 as the case may be, and if it is so satisfied, then the benefit of the appropriate section must be given, but if it is not so satisfied, the court is required to record its reasons for coming to that conclusion and for passing a sentence of imprisonment against the offender. The section further lays down that in order to be able to come to a proper conclusion as to whether the offender should not be given the benefit of sec. 3 or sec. 4 as the case may be, the court shall call for a report from the probation officer and consider it together with any other information which may be available to it relating to the character and physical and mental condition of the offender. The importance of this provision should be further obvious by a reference to sec. 11 of the Act which lays down that notwithstanding anything contained in the Code of Criminal Procedure or any other law, an order under this Act may be made not only by any court empowered to try and sentence the offender to imprisonment but also by the High Court or any other Court when the case comes before it on appeal or in revision. The correct position in law, therefore, unmistakably is that when a court has found a person under 21 years of age to be guilty of an offence not punishable with imprisonment for life, then the trial court, before it passes any sentence of imprisonment on the offender, must satisfy itself that it would not be desirable to deal with him under sec. 3 or sec. 4 of the Act, having regard to the circumstances of the case including the nature of the offence and the character of the offender and where the court sentences him to imprisonment, it must record its reasons for doing so, and, further, a duty has also been laid upon the High Court or any other court dealing with such a case on appeal or in revision to satisfy itself likewise. It is also important to point out in this connection that for the purpose of satisfying itself within the meaning of sec. 6 whether it would not be desirable to deal with an offender under sec. 3 or sec. 4, the court shall call for a report from the probation officer and consider it together with any other relevant information which may be available on the record. Now, let us see how the principles enunciated above apply to the present case. The age of the accused as recorded in his statement before the trial judge dated the 7th November, 1963, under sec. 342 Cr. P. C. appears to be 20 years. He has been held guilty under sec. 304 Part II I. P. C. , which is an offence not punishable with imprisonment for life, as the maximum provided thereunder is ten years only. These two conditions having been satisfied, it must follow that the trial Judge could not have passed a sentence of imprisonment on the offender unless he came to the conclusion, for reasons to be stated in writing, that having regard to the nature off the offence and the character of the offender, it was not desirable to deal with him under sec. 4 of the Act. The judgment of the learned trial Judge which was delivered within a fortnight of the recording of the statement, that is, on the 22nd November, 1963, does not show that he applied his mind to this aspect of the matter. It may be that his attention was not invited to it; but all the same, section 6 is mandatory in its character and makes it incumbent upon the trial Judge to see before sentencing the offender to a term of imprisonment that it was not desirable to deal with him under sec. 4 having regard to the nature of the offence and the character of the offender and the other circumstances of the case. Nor does it appear that he called for any report from the probation officer in this connection. In this state of circumstances, I have no alternative but to hold that the order of the learned trial Judge sentencing the appellant to 3-1/2 years' rigorous imprisonment cannot be maintained and must be set aside. Two courses are open to this Court at this stage ; (1) either to make on inquiry contemplated by sec. 6 of the Act itself or (2) to remit the case back to the trial court for that purpose and to call upon it to pass a proper order according to law after all the relevent facts and circumstances are taken into consideration. Having given my most careful and anxious consideration to the matter, I am clearly of the opinion that the second course is the better one, particularly for the purpose of impressing upon the trial courts that it is their duty, in the case of offenders below 21 years of age before passing any term of imprisonment on them, to satisfy themselves that the offender or offenders in a particular case should not be dealt with under sec. 3 or 4 of the Act as the case may be, having regard to the nature of the offence and the character of the offender and the report of the probation officer which has to be called for in a case of this character. Before concluding the judgment, I may as well refer to the submission made by the learned Deputy Government Advocate that according to him there is some over-writing on the "0" (zero) in the expression "20 years" which appears against the item of age in the accused's statement before the trial court dated the 7th November, 1963. To be precise, the contention is that is seems that the age was originally but down as "26 years" and then it was changed to "20". Learned counsel for the appellant submits that any change that might have been made appears to be in the same ink and was in all likelihood made by the Judge himself when he put down his age at the head of the statement. It is difficult for this Court to dogmatise in the circumstances as to what has really happened. As, however, the case is being remitted to the trial court for re-deciding the question of sentence, it will be for that court to apply its mind to this contention also and come to a definite conclusion one way or the other. For the) reasons mentioned above, I partly allow this appeal, uphold the appellant's conviction under sec. 304 Part II but set aside the sentence of imprisonment awarded to the appellant, and send the case back to the Additional Sessions Judge, Ajmer (Shri D. C. Sharma) for being dealt with according to law in the light of the observations made above. I further direct that the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs. 5,000/- and two sureties of Rs. 2500/- each to the satisfaction of the Additional Sessions Judge, Ajmer, pending the final decision of that court as to the proper sentence to be awarded to him in accordance with law. .;