Section 12 – Removal of disqualification attaching to conviction – Probation of Offenders Act

Section 12 – Removal of disqualification attaching to conviction – Probation of Offenders Act:

Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:

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Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence.

Comment:

This section contains provisions relating to effect of discharge on probation and states that it shall not be deemed as conviction. Thus the section seeks to remove disqualification attaching to conviction in probation cases.

The High Court of Delhi in Iqbal Singh v. Inspector General of Police and others,observed that the word ‘disqualification’ used in Section 12 is stated to mean, “making someone unfit for something” and hence disqualification attaching to appellant’s conviction could not be made a basis of his dismissal from service. In this case the petitioner was a constable who was subsequently promoted as Head Constable in February 1957. He had gone on leave to his native village in August 1966 where he was involved in an offence resulting in his trial under Section 336/337, I.P.C. for which he was convicted but was allowed the benefit of release on probation under Section 4 of the Probation of Offenders Act. He was also ordered to pay Rs. 500/- to the injured person by way of compensation which he promptly did. Consequent to his prosecution, the petitioner was suspended from service but later reinstated by an order dated September 6, 1967.

Thereafter, while he was undergoing training course at Police Training College, Phiullaur, he was served the dismissal order dated November 15, 1968, because of his conviction under Section 337, I.P.C. He made a submission that having been given the benefit of release on probation under Section 4 of the Probation of Offenders Act, the disqualification attaching to his conviction could not be made the basis of his dismissal as per the provisions of Section 12 of the Act. Allowing the petition, the Delhi High

Court observed that the meaning of the word “disqualification” used in Section 12 of the Act includes, “a person losing his right or qualification to remain or to be retained in service” and hence the dismissal of the petitioner under the Punjab Police Rules was set aside.

In Divisional Personal Officer Southern Railway and another v. T.R. Challapan, a railway pointsman was arrested on August 12, 1972 for drunkenness and indecent behaviour while on duty and was booked under Section 51-(A) of the Kerala Police Act. He was found guilty by the Magistrate, Palghat who released him on probation under Section 3 of the Probation of Offenders Act instead of sentencing him. After he was released, the Railway Department instituted a departmental inquiry against him and he was finally removed from service on disciplinary ground on January 3, 1973.

On appeal, the High Court of Kerala allowed the writ petition on the ground that the respondent was removed from service only on the ground of his conviction without being heard and no penalty was imposed on him. As such, the order of dismissal was liable to be quashed. The Government went in appeal against this judgment of the High Court along-with two other similar petitions.

It was contended that Section 12 of the Probation of Offenders Act, 1958 contemplates automatic disqualification attached to the conviction but it does not obliterate the misconduct of the accused so as to bar disciplinary action against him. It, therefore, does not debar the disciplinary authority from imposing penalty under Departmental rules against the employee who has been convicted for misconduct.

The counsel for the respondent (accused), on the other hand, argued that if the trial Court does not choose to pass any sentence after convicting the accused, and orders his release on probation under Section 3 or 4 of the Act, the stigma of conviction is completely washed out and obliterated.

The Supreme Court quoting the phraseology used in Sections 3 and 4 (1) of the Act, observed that conviction is not washed out at all because that is sine qua non for the order of release on probation. The order of release on probation is in fact merely a substitution of sentence imposable by the Court. Therefore, Section 12 of the Act does not afford immunity against disciplinary proceedings for original misconduct. The appeal was hence allowed.

In Kehar Singh v. Regional Employment Officer, Chandigarh, the petitioner was convicted for an offence under Section 380, I.P.C. and was dealt with under Section 4 of the Probation of Offenders Act and released on probation. He was removed from service consequent to conviction by the Court. He appealed against the removal order.

Allowing the appeal, he was ordered to be reinstated on the ground that phraseology of Section 12 of the Act is express, explicit and mandatory and seeks to remove disqualification attaching to conviction in probation cases.

In Shankar Dass v. Union of India, the Supreme Court took a liberal view of the provision of Section 12 of the Probation of Offenders Act and ordered the appellant to be reinstated in service. In this case, the appellant had misappropriated Rs. 500/- from Delhi Milk Service and thus committed the offence under Section 409, I.P.C. He pleaded guilty and was therefore convicted by the Court but allowed the benefit of release on probation under Section 4 of the Act. As a result of his conviction, he was dismissed from service in April 1964.

The Supreme Court while deciding the appeal observed that in the instant case the offence was committed under personal misery compounded by the appalling law’s delay. The Court further observed that a government servant convicted on a criminal charge and released on probation cannot be said to be liable to be dismissed in

view of Section 12 of the Probation of Offenders Act, which is a beneficial legislation. The Court, therefore, set aside the order of the Delhi High Court and reinstated the appellant in service.

In the case of State of Karnataka v. M. Chandrappa and another, the state filed an appeal against the order of release of accused on probation by the High Court. Dismissing the appeal, the Apex Court observed that it was a fit case where the accused could be released after admonition with direction that his conviction would not suffer disqualification for holding post and continuing in service.

The accused in this case had assaulted a constable who was merely waiting for the bus to take him to the Police Station. He was found guilty of offence under Sections 352 and 353, I.P.C. The accused was a teacher who had come to know that there was some enquiry against him and this constable had enquired and reported against him.

Hence seeing that constable, he lost temper and abused and assaulted him under mental pressure. The Supreme Court held that the constable could not be said to be engaged in executing his duty at the time of incident and hence the accused was rightly allowed the benefit of Section 3 of the Probation of Offenders Act. The Apex Court had expressed a similar view in its decision in Rajbir v. State of Haryana and ordered the appellant to be reinstated.

In Trikha Ram v. V.K. Seth, the Supreme Court reiterated that an offender convicted for a criminal offence and released on probation cannot be dismissed by the disciplinary authority in view of the provisions contained in Section 12 of the Probation of Offenders Act as it will operate as a disqualification for future employment. Hence the dismissal of the accused was converted into removal from service.

However, in Union of India v. Bakshi Ramthe Supreme Court observed that release of offender on probation does not obliterate stigma of conviction. In the instant case, the accused was dismissed from service in view of his conviction under Section 10 of the Central Reserve Police Force Act and the Court held that he was not entitled to reinstatement in service upon getting the benefit of release on probation of good conduct under Section 4 of the Probation of Offenders Act.

The Supreme Court, in this case asserted that Section 12 of the Act clearly directs that the offender “shall not suffer disqualification if any, attaching to a conviction for an offence under such law.” But the section does not preclude the Department from holding departmental enquiry and taking action for misconduct leading to the offence or conviction thereon as per law.

Thus Section 12 does not exonerate the person from departmental punishment. In result, the Court altered the punishment of dismissal to that of removal from service so that it helps the appellant in getting some other job elsewhere.

In Sunil Kumar Parida v. State of Orissa, the Apex Court ordered the release of the accused who had undergone a part of his imprisonment, giving him benefit of Sections 3 and 4 of the Probation of Offenders Act so that he could get the benefit of Section 12 of the Act and may not be adversely affected by the disqualification attached with imprisonment. The Court directed the accused to appear before the Sub-Divisional Magistrate of Neelagirima and receive the probation order within six weeks.

In the case of Harish Chand v. Director, Education Deptt., the Supreme Court reiterated that where a public servant is convicted for any offence under the Indian Penal Code, he may be removed from service on the basis of his conviction for the offence despite his being released on probation under Section 4 of the Probation of Offenders Act. The reason being that Section 12 of the Act obliterates the disqualification of the public servant attaching to his conviction but it does not confer him immunity from departmental proceedings against him.

The High Court of Allahabad in Mahak Singh v. State of Uttar Pradesh,³ observed that where the petitioner has been released on probation under the Probation of Offenders Act, 1958, five years before elections to the State Assembly, he shall not be disqualified from contesting the election in view of the provision contained in Section 12 of the Act.

In Shivnath Ram v. State of Bihar the High Court of Patna held that dismissal from service based on conviction, in criminal case is not a ‘disqualification’ within the meaning of Section 12 of the Probation of Offenders Act, 1958.