IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.647 of 2007 and M.P.No.1 of 2007 Saravanan ..Petitioner vs. The State rep.by Inspector of Police, Vellore South Crime Police Station Vellore District ..Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement dated 27.03.2007 passed by the learned Additional District and Sessions (Fast Track Court), Vellore in C.A.No.205 of 2006 confirming the judgement dated 31.10.2006 passed by the learned Judicial Magistrate-I, Vellore, in C.C.No.119 of 2004. For Petitioner : Mr.E.Kannadasan For Respondent : Mr.R.Muniapparaj, Government Advocate (Criminal side) ORDER Challenging and impugning the judgement dated 27.03.2007 passed by the learned Additional District and Sessions (Fast Track Court), Vellore in C.A.No.205 of 2006 confirming the judgement dated 31.10.2006 passed by the learned Judicial Magistrate-I, Vellore, in C.C.No.119 of 2004, this revision case is focussed. 2. A 'resume' of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus:- (a) The police laid the police report in terms of Section 173(2) of the Code of Criminal Procedure as against two accused persons for the offence under Sections 457 (ii) and 380 IPC; only the revision petitioner contested the matter. Whereupon, trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (b) During trial, on the prosecution side P.Ws.1 to P.W.7 were examined; Exs.P1 to P.14 and M.Os.1 to 6 were marked. On the accused side, no oral or documentary evidence was adduced. (c) Ultimately, the trial Court recorded the following conviction and imposed the following sentence on him. Case No. Offence Punishment imposed C.C.No.119 of 2004 U/s.457(ii) IPC and 380 IPC Rigorous imprisonment for one year and fine of Rs.500/- , in default, to undergo rigorous imprisonment for three months for each of the offence (Both the sentences are ordered to run concurrently) As against which, appeal C.A.No.205 of 2006 was filed before the learned Additional District and Sessions Judge,(Fast Track Court), Vellore, for nothing but to be dismissed by the Appellate Court, confirming the conviction recorded and sentence imposed by the trial Court. 3. Animadverting upon the judgements of both the Courts below, this revision case is focussed on various grounds. However, the gist and kernel of them would be to the effect that both the courts below failed to take into account the evidence properly, but simply believed the case of the prosecution and convicted the accused. 4. Heard both sides. 5. At the time of hearing this revision, the learned counsel for the revision petitioner would make a supine submission to the effect that he would not argue on the merits of the matter but he prays for reduction of sentence. 6. At this juncture, when I perused the records I have come across a fact that as on the date of laying the charge sheet, the accused was only 19 years old and as such, the mandates contained in Section 6 of the Probation of Offenders Act, should have been adhered to by the learned Magistrate. Neither the learned Magistrate nor the Appellate Court concentrated on this aspect. As such, the sentence imposed by the learned Magistrate alone is set aside and while confirming the conviction, the matter is remitted back to the https://hcservices.ecourts.gov.in/hcservices/ Magistrate Court to strictly adhered to Section 6 of the Probation of Offenders Act. 7. It is therefore just and necessary to extract here under Section 6 of the Probation of Offenders Act:- "6. Restrictions on imprisonment of offenders under twenty-one years of age – (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 circumstances of the case including the nature of the offence and the character of the offence, it 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, it 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 or Section 4 with an offender referred to in sub-section (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." Unambiguously and unequivocally the above Section mandates that no sentence of imprisonment could be imposed on a person who is below 21 years of age, otherwise than in accordance with the procedure prescribed therein. But in this case, without complying with the mandates of Section 6 of the Probation of Offenders Act the lower Court imposed the sentence as referred to supra. 8. Hence, I would like to set aside the sentence imposed by the lower Court and as confirmed by the first appellate Court, in toto and remit the matter back to the Magistrate with the direction that he shall issue summons to the accused, secure his presence and thereafter call upon the Probation Officer to submit his report and after hearing both sides, with reference to the Probation Officer's report, a decision shall be taken as to whether in this case imposition of substantive sentence is necessary or not. Accordingly, the matter shall be processed to this limited extent only. 9. The revision petitioner is stated to be on bail and he shall surrender before the learned Magistrate within a period of two weeks from this date and execute a fresh bond for his appearance for a sum of Rs.5,000/- (Rupees five thousand only) with two sureties each for a like sum and if he fails to surrender, Non Bailable Warrant shall be issued to him and he shall be committed to custody and keeping him https://hcservices.ecourts.gov.in/hcservices/ in custody, the process under Section 6 of the Probation of Offenders Act shall be dealt with. 10. Accordingly, this revision is partly allowed, confirming the finding that the accused committed the offence under Sections 457(ii) and 380 IPC, but setting aside the sentence imposed, and the matter is remitted back to the Magistrate, who is expected to dispose of the matter within three months from the date of receipt of copy of this order, adhering to Section 6 of the Probation of Offenders Act. Consequently, the connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vj2 To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (FAST TRACK COURT) VELLORE. 2. THE JUDICIAL MAGISTRATE-I, VELLORE. 3. THE CHIEF JUDICIAL MAGISTRATE, VELLORE. 4. THE INSPECTOR OF POLICE, VELLORE SOUTH CRIME POLICE STATION, VELLORE DISTRICT. 5. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. + 1 c.c. to Mr. E. Kannadasan, Advocate. S.R.No.32839. Crl.R.C.No.647 of 2007 TEJ (CO) GSK 03.08.2009. https://hcservices.ecourts.gov.in/hcservices/