minal Appeal No 144 of 1962
Appeal by special leave from the judgment and order dated May 10 1962 of the Patna High Court in Criminal Appeal No 339 of 1961
BK P Sinha and A G Ratnaparkhi for the appellants
SP Varma P D Menon and B N Sachthey for the respondent
December 6
The judgment of the Court was delivered by AYYANGAR J
This appeal by special leave granted by us on September 7 1962 raises for 747 consideration the proper construction of sections 6 and 11 of the XX of 1958 hereinafter called the Act 
The appellants are two brothers Ramji and Basist
It was alleged that these two assaulted one Sidhnath PW 2 who as a result suffered grievous injuries Basist the younger brother was charged before the Assistant Sessions judge Arrah with the commission of an offence under section 307 Indian Penal Code for the reason that the injury he inflicted was a bhala blow under circumstances that if by that act death had been caused he would have been guilty of murder and as the injury actually sustained was grievous he was further charged with causing grievous hurt under section 326 Indian Penal Code
The elder brother who too caused hurt to the victim was charged under section 324 Indian Penal Code
The Assistant Sessions
Judge held the prosecution case as alleged establish against both the accused
It is now necessary to mention that according to the Sessions judge Ramji was 21 years old and Basist 19
Section 6 of the Act enacts  6
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 it is satisfied that having regard to the circums tances of the case including the nature of the offence and the character of the offender would not be desirable to deal with him under section 3 or section 4 and if the Court passes any sentence of imprisonment on the offender shall record its reasons for doing so
2 For the purpose of satisfying itself Whether it would not be desirable to deal under section 3 748 or section 4 with an offender referred to in subsection 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
 The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life both sections 307 and 326 Indian Penal Code
He accordingly sentenced Basist to undergo rigorous imprisonment for six years under section 307 Indian Penal Code and to four years under section 326 Indian Penal Code the sentences to run concurrently
As regards Ramji the elder brother he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms So far as accused Ramji is concerned I am not inclined to take recourse to the provisions of the  because the act of assault on the informant on the part of this accused is premeditated He sentenced him to undergo rigorous imprisonment for two years under section 324 Indian Penal Code
Both the accused filed an appeal to the High Court
The learned Single judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to PW 2 with the result that as against him the  conviction under section 307 as well as that under section 326 Indian Penal Code were set aside and in their place he recorded a finding of guilty in respect of an offence under section 324 Indian Penal Code for which he imposed a sentence of rigorous imprisonment for two years
As against Ramji the conviction was maintained but being informed by 749 counsel that that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months
It was urged before the High Court that the reasons assigned by the Assistant Sessions judge for refusing to apply the provisions of section 6 of the Act to accused Ramji were not proper
This submission was however repelled since the learned judges considered the section inapplicable to that accused because though he might have been under 21 Years of age on the date of the offence October 17 1960 he was not a person under 21 years of age on May 24 1961 when the Sessions judge found him guilty and sentenced him to a term of imprisonment holding that the crucial date on which the age had to be determined being not the date of the offence but the date on which as a result of a finding of guilty sentence had to be passed against the accused
As regards Basist also it was urged before the High Court that in view of the alteration in the finding recorded as regards his guilt the beneficial provisions of section 6 of the Act became applicable to him the learned judge holding that he could pass the same order as the trial court could have done because of the provisions contained in section 11 of the Act reading  11
1 Notwithstanding anything contained in the Code or any other law an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision
2 Notwithstanding anything contained in the Code where an order under section 3 or section 4 is made by any Court trying the offender other than a High Court an appeal shall lie to the 750 Court to which appeals ordinarily lie from the sentences of the former Court
3 In any case where any person under twenty
one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4 and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred then notwithstanding anything contained in the Code or any othe r law the Court to which appeals ordinarily lie from the sentences of the former Court may either of its own motion or on an application made to it by the convicted person or the Probation officer call for and examine the record of the case and pass such order thereon as it thinks fit
4 When an order has been made under section 3 or section 4 in respect of an offender the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in  lieu thereof pass sentence on such offender according to law Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty
 The learned judge however declined to do so observing No doubt under the provisions of section 11 of the this Court is competent to make an order but it is entirely discretionary for this Court to exercise the power conferred on it under section II
In view of the fact that the Court below has already dealt with 751 this matter though not very satisfactorily I do not consider it desirable to deal with the cases of these appellants under the provisions of the at this stage and instead passed the sentence of imprisonment as already mentioned
It is the correctness of these orders refusing to apply the provisions of section 6 of the Act to the cases of the appellants that is raised for consideration in this appeal
Taking first the case of Ramji  the elder brother we entirely agree with the High Court in their construction of section 6
The question of the age of the person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found on the evidence guilty
The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison
The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime
If this were borne in mind it would be clear that the age referred to by the opening words of section 61 should be that when the court is dealing with the offender that being the point of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it viz sentence the offender to imprisonment or to apply to him the provisions of section 61 of the Act
As the High Court has found that Ramji was not a person under the age of 21 on May 24 1961 when
the learned Sessions judge found him guilty it is clear that section 61 of the Act has no application to him
The position in regard to the second appellant Basist tands on an entirely different footing
He was said to be of the age of 19 by the Sessions judge 752 which is apparently a reference to the time when the offence was committed
If so he would have been about 20 at the time when the Sessions judge found him guilty of offences under sections 307 and 326 Indian Penal Code and possibly also below 21 at the time when the High Court altered his conviction into one under section 324 Indian Penal Code
If by reason of his age and the offence of which he was been found guilty the provisions of section 61 are not excluded the question that has next to be considered is whether the learned judge had an absolute and unfettered discretion to pass or refuse an order under the Act by virtue of the terms of section 11 of the Act
This would obviously turn on 1 whether or not section 61 was applicable to the High Court and 2 the proper construction
of the terms of section 11 which empowers appellate and revisional courts to pass orders under the Act
It was urged by learned Counsel for the appellant that the High Court when it recorded a finding that Basist was guilty of an offence under section 324 Indian Penal Code was squarely within the words the court by which a person is found guilty occurring in section 61 as it was only by that Court that for the first time the accused was found guilty of an offence which was not excluded by the opening words of that section
Learned Counsel relied for this position on the judgment of High Court of Madras in Narayananwami Naidu vs Emperor 1 following a decision of the Allahabad High Court to a similar effect in Emperor vs Birch 2
The question that arose in the first of the above cases related to the scope of the words Court before whom he is con victed occurring in section 562 Code of Criminal Procedure as it originally stood
The provision in section 562 Code of Criminal Procedure is somewhat in pari materia with section 4 of the Act wherein a Person found guilty of having committed offences not punishable 1 Mad
2 All 306
753 with death or imprisonment for life may instead of being sentenced to imprisonment be released on entering into a bond
In the Code as originally enacted which the decision referred to had to deal with there was no express provision as regards the power of appellate courts to pass similar orders
The accused in that case was tried and convicted by a magistrate under sg
447 and 352 Indian Penal Code and sentenced to undergo rigorous imprisonment for two weeks
The accused filed an appeal and the Deputy Magistrate who heard it while affirming the conviction directed his release on his executing a bond applying to him the provisions contained in section 562 Code of Criminal Procedure
The District judge considered that the Deputy Magistrate had exceeded his jurisdiction in making this order and referred the question to the High Court
The learned judges rejected the reference observing that the words Court before whom he is convicted  used in s562 were not intended to limit the power of making orders under that section to the court of first instance
It might be mentioned that the Code has since been amended by the addition of sub section
2 which runs  An order under this section may be made by an appellate court or by the High Court when exercising its powers of revision so that it is no longer necessary for an appellate or revisional court to rely on any construction of the words  the court by which the person is found guilty for invoking or exercising its jurisdiction
The position therefore comes to this the words referring to the court by which a per son is found guilty are wide enough to include an appellate court and particularly so where it is the appellate court alone which by reason of its finding on the guilt of the accused becomes for the first time vested with the power or the duty to act under the section
754 Undoubtedly if section II were attracted to the case then there would be no need for invoking the Jurisdiction of the High Court under section 6 and indeed in those circumstances the proper construction of section 6 itself would be to exclude an appellate or revisional court since a redundancy could not have been intended by the statute
The first question would therefore be to ascertain whether the jurisdiction or powers envisaged by section 61 are within  the scope of the jurisdiction conferred by section 11
The power conferred on the High Court is to pass an order under the Act
 One is thrown back on the Act for determining what these are
They are 1Under section 3 a court might order the release of a person found guilty of an offence of the type specified in the section after due admonition
2Under section 4 an order may be passed in circumstances set out in it releasing such person on entering into a bond with or without sureties or pass a supervision order
3Orders which are consequential on orders under section 3 or section 4 like those for which provision is made by sections 5  9
So far as section 6 is concerned it is to say the least doubtful whether it
involves the  passing of an order for the operative words are that the court finding a person guilty refrains from passing any sentence
An injunction enacted by this Act against passing a sentence of imprisonment which the court under the normal law is empowered or enjoined to pass can hardly be termed passing an order under the Act
If this were correct the result would be that on the reasoning which the High Courts of Madras and Allahabad adopted to construe the words in section 562 of the Code the High Court when hearing an appeal would be subject to the provisions of section 6 755 It is however possible that the words in section 11 1  pass an order under the Act are not to be construed so strictly and literally but to be understood to mean to exercise the powers or Jurisdiction conferred by the Act
 This wider interpretation might perhaps be justified by the scope and object of this section
Section 11 is to apply notwithstanding anything in the Code or any other law to all courts empowered to sentence offenders to imprisonment
TO read a beneficial provision of this universal type in a restricted sense so as to confine the power of these courts to the exercise of the powers under sections 3 and 4 alone would not in our opinion be in accord with sound principles of statutory interpretation
We are therefore inclined to hold that the Courts mentioned in section 11 be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under sections 3 and 4 and the consequential provisions but also under section 6
Accepting therefore the interpretation of section 11 1 which was urged by Counsel for the respondent that the courts mentioned in it could pass orders under sections 3 4 or 6 the question next to be considered relates to the incidents of that jurisdiction with regard to the amount and nature of discretion vested in these courts
It was submitted on behalf of the appellant that the power conferred on the High Court and other courts by section 11 1 was neither more nor less than those of the court under section 6 1 and that the former were bound to exercise it subject to the same conditions and limitations as are set out in the latter provision
Stated in other words the interpretation suggested was that the terms of s6 had so to speak to be read into the jurisdiction of the courts acting under section II 1
On the other hand the contention urged by the respondent was that section II 1 had to be read on its own language and so read it conferred on 756 the courts mentioned in it an absolute and unfettered discretion to pass or not to pass an order under the Act as they thought fit having regard to the circumstances of each case
A considerable portion of the argument by the respondent was based on the import of the facultative verb may in the words  may be made occurring in the operative part of the sub section as conferring a discretion and that as no limitations were placed  by this or any other section on the exercise of this discretion the same should be held to be unfettered and therefore capable of being exercised no doubt on judicial principles but not subject to any statutory limitations
It might be mentioned that from the relevant passage of the judgment of the High Court which we have extracted it would appear that the learned judge has proceeded on this interpretation of section 11
Though the word may might connote merely an enabling or permissive power in the sense of the usual phrase it shall be lawful it is also capable of being construed as referring to a compellable duty particularly when it refers to a power conferred on a court or other judicial authority
As observed in Maxwell on Statutes Statutes which authorise persons to do acts for the benefit of others or as it is sometimes said for the public good or the advancement of justice have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory
In enacting that they may  or shall  if they think fit or hall have power  or that it shall be lawful  for them to do such acts a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions 757 may have to say the least a compulsory force
The fact that the power is conferred on a Court might militate against the literal interpretation of may suggested by the respondent
This apart the power conferred by section 111 is to pass  an order under the Act and the question arises as to the precise import of these words and in particular whether these words would not imply that the order to be passed would be subject to the same limitations or conditions as the orders under what might be termed the primary provisions of the Act
Thus section 3 empowers a court to release certain offenders on probation of good conduct after due admonition and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised  1 that no previous conviction should have been proved against him and 2 that the court by which the person is found guilty should be of the 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 so to do
Similarly section 4 empowers a court to release certain offenders on probation of good conduct The criteria laid down there
and the guidance set out is that the court by which the person is found guilty should be 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 with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond
Would it be a proper construction of section 11 1 to hold that the High Court etc
could pass orders in appeal or revision without reference to these standards 758 tests or guidance which the statute has prescribed for the primary courts We are clearly of the opinion that this is capable only of a negative answer and that the power conferred on appellate or other courts by section II 1 was of the same nature and characteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3  4
We are confirmed in this view by the terms of section 113
If this were so it would not be possible to adopt a different rule of interpretation when one came to consider the power under section 6
It cannot for instance be suggested that the High Court could in its discretion exercise the power under section 6 in the case of a person who is above the age of 21 nor where a person is found guilty of an offence punishable with death or imprisonment for life
These limitations on the exercise of the discretion have surely to be gathered only from the terms of section 61
If section 61 applies so far to restrict the absolute and unfettered discretion implied by the word may it appears to us that logically the conclusion is inescapable that the entirety of section 61 applies to guide or condition the jurisdiction of the High Court under section 111
We there
fore reject the submission made to us on behalf of the respondent that an appellate court has an unfettered discretion in dealing with a case which comes before it under section 11 and that its discretion and powers are not to be governed by the terms of section 61
The question next to be considered is the result of applying the terms of section 61 to a person in the position of Basist
It was not disputed by learned counsel for the respondent that the learned Judge of the High Court failed to consider the case of this accused with reference to the terms of section 6 since he has proceeded on the basis that he had an unfettered discretion in the matter and which in the circumstances of the present case he was not inclined to exercise in favour of the accused
The order of the High Court in so far as it relates to the second appellant 759 Basist must therefore be set aside and the High Court directed to exercise its discretion on the basis that it was judging the matter with reference to the criteria laid down in section 6
We shall now proceed to consider one question which was mooted before us in regard to the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court
Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is for the first time in a position to claim the benefit of section 6
We consider that on the terms of the section on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed the crucial date must be that upon which the trial court had to deal with the offender
In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge section 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal
The appeal is accordingly allowed in part ie in regard to the second appellant Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisions of section 6 of the probation of offenders Act 1958
Appeal allowed in part


Summary:
The appellants R and B who were brothers were pro
secuted for having assaulted S who as a result suffered grievous injuries
Both the appellants were found guilty by the Assistant Sessions judge and sentenced to various terms of imprisonment
While B was convicted under sections 307 and 326 of the Indian Penal Code the conviction of R was under section 324
Section 6 1 of the  enacts 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  
Though B was 19 years old section 6 1 was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life
R the older brother was aged 2 1 but the trial judge considered it inappropriate to afford him the benefit of the section on the ground that the act of assault Was premeditated
On appeal the High Court set aside the convictions of B and in their place a finding of guilty under section 324 of the Indian Penal Code was recorded for which a sentence of 2 years was imposed and as regards R his conviction under section 324 was maintained but the sentence was reduced from 2 years to 9 months
On the question of the applicability of the provisions of the Act to the accused the High Court took the view 1 that section 6 1 was inapplicable to R because though lie might have been under 21 years of age an the date of the offence he was not a person under 21 years when the Sessions judge found him guilty and 2 that though under section 1 1 of the Act the High Court was competent to make an order in favour of B it was entirely discretionary for that Court to exercise the power conferred on it under that section and that in view of the fact that the court below had already dealt with the matter it wag not desirable to deal with the case of the appellant under the provisions of the Act at that stage
746 Held  1 that the age referred to in section 6 1 of the  is that when the courts deal with the offender that being the point of time when the court has to choose between the two alternatives whether to sentence the offender to imprisonment or to apply to him the provisions of section 61 of the Act
2that the courts mentioned in section 11 of the Act be they trial courts or courts exercising appellate or revisional jurisdiction are empowered to exercise the jurisdiction conferred on courts not only under sections 3 and 4 and the con
sequential provisions but also under section 6
3that the power conferred on appellate or other courts by section 1 1 1 of the Act is of the same nature and chara cteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 and 4
4that the provisions of section 6
1 restrict the absolute and unfettered discretion implied by the word may in section 11 1 and the entirety of section 6 1 applies to guide or con dition the jurisdiction of the High Court under section 111
5that the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court is that upon which the trial court had to deal with the offender