The single judge bench of the Jharkhand High Court held that power under Section 4 of the Probation of Offenders Act, 1958 is to be exercised having regard to the circumstances of the case including the nature of the offence and the character of the offender and if it is expedient to release the offender on probation of good conduct then only offender can be released on furnishing bond suspending the sentence.
Brief facts
The factual matrix of the case is that the accused persons were convicted by the learned chief judicial magistrate under Section 498-A/34 of the Indian Penal Code and also under Section 3 of the Dowry Prohibition Act,1961, and were sentenced to undergo rigorous imprisonment for two years and fine of Rs. 1,000/- each for offense under Section 498-A of the Indian Penal Code with default clause and further rigorous imprisonment for six months for offense punishable under Section 3 of the Dowry Prohibition Act,1961. However, the learned Appellate Court confirmed the conviction and set aside the sentences, and replaced it with Section 4 of the Probation of Offenders Act,1958 to maintain good conduct for two years with one surety each and a fine imposed under Section 498-A IPC was upheld. Furthermore, the court also directed the husband to pay compensation to the complainant/victim lady to the extent of Rs. 25,000/- and directed the other convicts to pay compensation to the complainant/victim lady to the extent of Rs. 10,000/- each. Therefore, aggrieved by the modification in sentences the complainant preferred the criminal revision.
Contentions of the Petitioner
The Petitioner submitted that the modification of sentences by the appellate court under Section 4 of the Probation of Offenders Act suffers from illegality as no report was called from the probation officers in terms of Section 4(2) of the Probation of Offenders Act. It was furthermore submitted that the bonds have not been furnished by the convicts and the entire purpose of furnishing of bond under Section 4 of the Probation of Offenders Act has been frustrated.
The Petitioner relied upon the judgment titled Mohd. Hashim vs. State of U.P. & Others.
Contentions of the State
The state submitted that the impugned order passed by the learned appellate court doesn’t call for any interference as the appellate court has applied its mind and the same is itself reflected in the order. It was furthermore submitted that both the husband and wife have got re-married and this aspect of the matter has also been considered by the learned appellate Court while modifying the sentence.
Issue before the court
“Whether the appellate Court have any power to set aside the sentence of imprisonment and replace it by giving benefits under Section 4 of the Probation of Offenders Act instead of suspending the sentence?”
And
“Whether the appellate court has rightly exercised the powers under Section 4 of the Probation of Offenders Act, 1958?”
Observations of the court
The Hon’ble Court observed that Section 4 of the Dowry Prohibition Act, 1961 stipulates a minimum sentence of six months, with a maximum term of two years and a fine of ten thousand rupees. The proviso states that the court may impose a sentence of imprisonment for a term of less than six months for appropriate and special reasons to be mentioned in the judgment. Section 498A of the Indian Penal Code does not prescribe a minimum sentence. Furthermore, the Probation of Offenders Act, 1958 would still apply in cases where the court has the discretion to impose a sentence that is lesser than the minimum, even though the minimum is stipulated. Thus, for offences under Section 498A as well as Section 4 of the Dowry Prohibition Act, 1961 the provision of the Probation of Offenders Act, 1958 is applicable.
It was noted that the learned appellate court decided to set aside the substantive sentences of the convict rather than suspending them in accordance with Section 4(1) of the Probation of Offenders Act, 1958, while issuing an order to release them on probation of good behavior under that section of the Act. For this reason, neither the mandatory bond nor the actual jail sentence of the convicts have been received. Furthermore, no report was received by the probation officer in accordance with Section 4 of the Probation of Offenders Act, 1958.
It was furthermore noted that in accordance with Section 4 of the Probation of Offenders Act, 1958, the authority to release an offender on probation for good behavior must be exercised with consideration for the particular circumstances of the case, including the nature of the offense and the offender's character. An offender may only be released upon providing a bond that suspends the sentence.
Based on these considerations, the court was of the view that the learned appellate court had not exercised the powers under Section 4 of the Probation of Offenders Act, 1958 and the appellate court had passed an order contrary to Section 4 of the Probation of Offenders Act, 1958 in a perfunctory manner and contrary to the provision of law. The court set aside the order passed by the learned appellate court and remitted the case to the learned appellate court to pass an appropriate order on the point of sentences of the convicts in accordance with law, after hearing the parties.
The decision of the court
With the above direction, the court disposed of the criminal revision application.
Case Title: Gulshan Shiri Vs The State of Jharkhand
Coram: Hon’ble Mr. Justice Anubha Rawat Choudhary
Case No.: Cr. Rev. No. 1524 of 2017
Advocate for the Petitioner: Mr. S.T. Sajid, Advocate, Mr. Saibal Mitra, Advocate
Advocate for the State: Mr. Arun Kumar Roy, APP
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