Section 6 – Restrictions on imprisonment of offenders under twenty-one years of age

Section 6 – Restrictions on imprisonment of offenders under twenty-one years of age (The Probation of Offenders Act, 1958)

According to this section, the offenders who are under 21 years of age when found guilty of having committed an offence should be released on probation under Section 3 or 4 as far as possible provided their offence is not punishable with imprisonment for life or death. However, while considering their release on probation the Court must have regard to the circumstances of the case including the nature of offence and the character of the offender.

The pertinent question that often arises before the Court while dealing with offender under Section 6 of the Probation of Offenders Act is whether the age of the offender for the purpose of application of this section should be reckoned as on the date of commission of the offence or the date when the offender is convicted.

Image Source : abc.net.au

The phraseology used in Section 6(1), however, suggests that the age is to be reckoned at the time (i.e., date) of disposal of the case. This view finds support in Supreme Court’s decision in Ramji Missar v. State of Bihar.

In the case, two brothers, Ramji and Baist, were convicted for the offences of attempted murder, grievous hurt and hurt under Sections 307, 326 and 324, I.P.C. The elder brother, Ramji was below 21 years of age at the date of occurrence but became over 21 years at the date of conviction and sentence. He was, therefore, sentenced to two years rigorous imprisonment under Section 324, I.P.C.

The younger brother, Baist who was 19 years of age, was convicted for attempted murder and grievous hurt under Sections 307 and 326, I.P.C. and was sentenced to 6 and 4 years’ rigorous imprisonment respectively. He could not be allowed the benefit of probation under Section 3 or 4 of the Probation of Offenders Act because offences under Sections 307 and 326, I.P.C. are punishable with imprisonment for life.

Ramji was denied probation by the trial Court because his offence was premeditated. On appeal, the High Court of Patna reduced the sentence of both the appellants but refused them the benefit of probation.

The Supreme Court, however, allowed both, Ramji and Baist, the benefit of probation under Section 4 since Section 6 of the Probation of Offenders Act was found inapplicable, particularly in case of Ramji who was above the age of 21 years at the date of his conviction.

The Supreme Court in Sudesh Kumar v. State of Uttarakhand reiterated that relevant date to determine the age of accused for the purpose of benefit of release on probation under Section 6 of the Probation of Offenders Act, 1958 is the date of imposition of punishment by the trial Court and not the date of occurrence of the offence. That is to say, if on the date of the order of conviction and sentence by the trial Court, the accused is below 21 years of age, the provisions of Section 6 of the Act will apply.

As to the contention of the appellant that since the relevant date for benefit of probation under Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2002 is date of offence, the relevant date in his case should also be the same instead of date of conviction the Court observed as follows:

“The object and purpose of the Probation of Offenders Act, 1958 for applying the relevant provisions to the accused are different and cannot be said in pari materia with the Juvenile Justice Act, 2000. The Court would not construe a section of a statute with reference to that of another statute unless the latter is in pari materia with the former. Therefore, a decision made on a provision of a different statute will be of no relevance unless underlying objects of the two statutes are in pari materia. The decision interpreting various provisions of one statute will not have the binding force while interpreting the provisions of another statute.”

The Supreme Court further held that the plea raised for the benefit of release on probation under Section 6 of the Probation of Offenders Act was raised by the appellant in Special Leave to Appeal (SLP) and was also not supported by credible and trustworthy evidence, therefore, it cannot be allowed. Appeal was accordingly dismissed.

The Supreme Court in State of Haryana v. Premchand, upheld the verdict of the Court of Session that since the respondent was below 21 years of age, the benefit of probation could not be denied to him, particularly when he was not a previous convict.

The accused in this case was of 16 years of age having been found guilty of an offence of attempt to rape under Section 376/511, I.P.C. which attracted punishment only upto ten years. The Supreme Court dismissed the appeal of the State of Haryana and held that the respondent was clearly entitled to be released on probation under Section 360, Cr. P.C. or Sections 4 and 6 of the Probation of Offenders Act.

In Abdul Qayum v. State of Bihar, the appellant aged 16 years pick-pocketed Rs. 56/-. Despite Probation Officer’s favourable report for release on probation under Sections 4 and 6 of the Act, he was sentenced to six months’ rigorous imprisonment by the trial Court because of his association with seasoned pick-pockets. On appeal, the Supreme Court directed the trial Court to place him on probation.

In the case of Kamaroonissa v. State of Maharashtra the Supreme Court confirmed the sentence of accused, a girl below 21 years of age who was convicted for theft denying her benefit of Section 6 of the Probation of Offenders Act as she was a hardened criminal having adopted thefts in running trains as her profession. Similar view was taken by the Court in Prem Ballabh v. Stated

The Apex Court in Masarullah v. State of Tamil Nadu, allowed the benefit of Sections 4 and 6 of the Probation of Offenders Act to the appellant who was convicted under Sections 453 and 379 of I.P.C.

Taking a lenient view, the Court observed that the appellant belonged to a middle class respectable family but unfortunately he fell in bad company of undesirable elements and the criminal influence movie accentuated the dormant criminal propensity in him and he committed the offence. Under these circumstances, the accused deserved to be treated leniently and allowed to be released on probation of good conduct.

Again, in Jawahar v. State of West Bengal, the appellant was guilty and convicted for the offence of lurking house trespass with intention to commit theft under Section 454, I.P.C. because he entered the watch repairing shop and was caught stealing red- handed by the informant with the help of some witnesses. The appellant was little less than 18 years at the time of occurrence (i.e., 4-9-1991) and there was no adverse previous record against him.

But keeping in view the manner in which the offence was committed by the appellant in broad day-light the trial Court denied him the benefit of probation and sentenced him to one year’s imprisonment and a fine of Rs. 500/- and in default, to undergo further imprisonment of one month.

In appeal, the High Court of Calcutta modified the sentence and directed that the appellant be allowed the benefit of Sections 4 and 6 of the Probation of Offenders Act and released on probation for two years on his entering into a bond of Rs. 3000/- with two sureties of like amount each, one being his father or near blood relation. The Court found it a fit case in which benefit of Section 6 of the Act could be allowed to the appellant.

The Supreme Court has observed that in the context of Sections 6 and 11 (1) of the Probation of Offenders Act, the Court can take notice of a plea raised for the first time in an appeal under Article 136 of the Constitution, and if the accused is below 21 years of age and sentence is also not of imprisonment, he can be granted the benefit of release on probation of good conduct under the Act.

In the case of Mohammad alias Biliya v. State of Rajasthan, the appellant was charged under Section 302, I.P.C. but the Sessions Judge convicted him under Section 304, Part II of I.P.C. and sentenced him to four years’ imprisonment. Against this order, the State as well as the appellant preferred appeals but both the appeals were dismissed.

On verification of the age of the appellant it was found that he was less than 21 years on the date of occurrence of crime. In view of this, the Supreme Court directed that the appellant be allowed the benefit of Section 6 of the Probation of Offenders Act and released on probation after executing a bond to the satisfaction of the concerned Magistrate for a period of two years.

In the case of Sanchu Ray v. State of Assam, the accused was about 19/20 years of age and had no previous criminal antecedents. He was sentenced to one years’ rigorous imprisonment by the trial Court. Keeping in view the tender age of the accused and the offence having been committed ten years ago, the Supreme Court deemed it a fit case for the benefit of Section 6 of the Probation of Offenders Act and directed his release on probation of good conduct with a bond of Rs. 1000/- with one surety of like amount.

In Jugal Kishore v. State of Bihar, the trial Court have denied the benefit of Section 6 of the Act to the accused who was under 21 years of age and convicted him for the offence under Section 326/149. I.P.C. for causing grievous hurt with deadly weapons, which was punishable with imprisonment for life. The Supreme Court upheld the verdict of the lower Court and dismissed the appeal on the ground that it was not a fit case for being admitted to the benefit of probation under Sections 4 and 6 of the Probation of Offenders Act.

The question for consideration before the Apex Court in Arvind Mohan v. Anil Kumar Biswas was whether the offenders convicted under the Customs Act and the Defence of India Rules, 1962, could be allowed the benefit of Sections 4 and 6 of the Probation of Offenders Act.

Answering in the affirmative, the Supreme Court ruled that the offenders in the instant case were two young boys below the age of 21 years who were engaged in agriculture and the purpose of purchasing smuggled gold being the marriage of their sister, the offenders clearly deserved leniency and could be released on probation and, therefore, the High Court’s contention that the Probation of Offenders Act has no application to the offences involving contravention of the Customs Act or the Gold Control Rules contained in Part III of the Defence of India Rules, 1962 could not be sustained.

In a criminal appeal, namely, Rakesh alias Duro Pravinbhai Thakkar v. State of Gujarat, the High Court of Gujarat held that for enabling the accused convicted under Sections 17 and 18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985, to earn benefit of release on probation under Section 33 of that Act, the crucial age of eighteen years should be reckoned at the time when the convict had committed the alleged offence and not the time when the Court is called upon to grant benefit of probation under Section 33 of NDPS Act.

Justifying its stand in this regard the Division Bench of the Court observed that there may be circumstances when the trial could not be proceeded expeditiously for which the convict could not be blamed.

Therefore it would not be fair to deny him the benefit of release on probation under Section 33 of NDPS Act because he became above 18 years of age at the time when the Court was deciding about his guilt or conviction. The Court emphasised that “such a precious right, as prescribed under the Probation of Offenders Act, can never be permitted to be circumvented or short-circuited where the accused cannot be said to be at fault and the trial gets protracted for unjust reasons.”