Citation | Criminal Appeal 204 of 2008 |
Date of Judgement | 29 January, 2008 |
Court | Supreme Court Of India |
Case Type | Criminal Appeal |
Petitioners | Sudesh Kumar |
Respondent | State of Uttarakhand |
Bench | C.K. ThakkerP.P. Naolekar |
Referred | Section 392 read with Section 34 of the Indian Penal Code (IPC)Section 6 of the Probation of Offenders Act, 1958Section 3 and 4 of the Probation of Offenders Act, 1958. |
FACTS:
The prosecution’s case is that; Mr. Jagdish Prasad was a wholesale beedi merchant who carried his business in the name of M/s. Madrasee Basant Beedi in Dehradun. On every 15th day, he goes to the retailers to collect his dues, and hence one time, while returning from his journey, he, along with other members in the car, was surrounded by four miscreants, out of which two were bearing revolvers. They were then threatened and robbed of valuable items and money. Based on the evidence presented, the Additional District & Sessions Judge found the accused persons guilty and issued the punishment in the order dated 26.7.1985, which held that the appellant was convicted under Section 392 read with Section 34 of the Indian Penal Code along with another person with a fine of Rs. 5000 and rigorous imprisonment of five years which would be extended for six months on failure of payment of the fine. The appellant was also found guilty under Section 25 of the Arms Act and was sentenced to one year of rigorous imprisonment. The High Court later confirmed this order in an appeal by the appellant on 9.7.2007.
Therefore, Sudesh Kumar, the accused-appellant, filed an appeal against this order and conviction.
ISSUES:
- Interpretation of Section 6 of the Probation of Offenders Act, 1958
- Whether the age should be considered on the date of commission of the offense or on the date of imposition of the sentence?
- Whether the Probation of Offenders Act, 1958 can be applicable?
ARGUMENTS:
The counsel appearing for the appellant, Shri K.T.S. Tulsi, made only one submission that the accused was under 21 years old when the crime was committed. This is evident from the accused’s statement recorded under Section 313 of the Criminal Procedure Code, in which the accused gave his or her age as 20 years, and from the transfer certificate, filed along with a special leave petition issued by the principal of Sanatan Dharma Junior High School, Delhi. Therefore, the counsel submitted that it has been conclusively proven that the accused-appellant was under 21 years old on the day of the offense, which was 7.3.1981, and as such qualified for consideration and benefits under Section 6 of the Probation of Offenders Act, 1958.
The counsel for the State, Shri Jatinder Kumar Bhatia, submitted that the accused could not request consideration of his case and benefit under Section 6 of the Act because he did not bring up the issue of his age before the trial court or the High Court and because there was no reliable evidence. It is further argued that the applicable date for the purposes of Section 6 of the Act shall be the day the sentence is passed.
JUDGEMENT:
When dealing with the interpretation of Section 6 of the Probation of Offenders Act, 1958, the court referred to the case of Daulat Ram v. The State of Haryana, a three-judge bench stated that the main aim of Section 6 is to prevent young offenders from being imprisoned for the commission of less serious crimes because it poses a grave risk in their outlook towards life which they would be exposed to as a result of the close association to hardened criminals and habitual criminals who may be their inmates. The Court ruled that Section 6 restricts the courts’ ability to sentence a person under the age of 21 for the commission of the offenses listed there unless the court is persuaded that dealing with the offender under Sections 3 and 4 of the Act is not desirable. The court must also document why it sentenced the defendant to prison in this case. The court relied on another case of Satyabhan Kishore and Another v. The State of Bihar, where the three-judge bench withheld the decision given in the previously stated case and further explained the principle established by stating that Section 6 establishes an injunction as opposed to Section 3 and Section 4 which gives discretion to not impose imprisonment on an offender without recording the reasons. Therefore, the court held that from the above case, it can clearly be established that an accused below the age of 21 convicted of a crime will not be sentenced to imprisonment if he is not convicted under the imprisonment of life unless the facts and circumstances of the case show that Section 3 and Section 4 of the Act must not be applied. The court emphasized that the reason for imprisonment must be recorded in case a person under the age of 21 is convicted of imprisonment.
To understand the question of the offender being 21 years or below on the date of commission of the offense or the date of imposition of sentence, the court relied on Masarullah vs. State of Tamil Nadu and various other cases and held that Section 6 of the Act would apply to those accused who are under the age of 21 on the date of punishment ordered by the trial court and not on the date of commission of the offense. Therefore, if the accused is below the age of 21, Section 6 of the Act would be applicable. Even if the court considers the age mentioned by the accused to be true 28.6.1962, he would be more than 21 years on the date of the order passed by the Additional District and Sessions Judge and hence is not entitled to the benefit under Section 6 of the Act.
The question of the applicability of the Act was raised for the first time while applying for a special leave petition. The Court referred to the case of Yuduraj Singh and Others vs. State of UP, and the court held as follows: The counsel also argued that on the date of commission of the offense, i.e., on August 30, 1969, the appellants 3 and 4 were less than 21 years hence they were entitled to benefit under the Probation of Offenders Act, this contention was accepted by neither the Sessions nor the High Court although the court agreed that this contention can be taken for the first time by considering the fact that there is no credible evidence regarding the age of the appellants 3 and 4 since their statements were given under Section 342 of the Code of criminal procedure. To have their age medically examined is a burden for any trial judge to undertake, and these statements have no significance in the absence of a plea under the Probation of Offenders Act. Therefore, on the above-stated reasons, the court dismissed the appeal.
REFERENCE:
https://lawyerservices.in/Sudesh-Kumar-Versus-State-of-Uttarakhand-and-Another-2013-08-27.
This article is written by Sanjana Ramesh of Himachal Pradesh National Law University Shimla, an intern at Legal Vidhiya.
