LAKHVIR SINGH ETC versus THE STATE OF PUNJAB & ANR.
[2021] 1 S.C.R. 269, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Arguments
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LAKHVIR SINGH ETC.
v.
THE STATE OF PUNJAB & ANR.
(Criminal Appeal Nos. 47-48 of 2021)
JANUARY 19, 2021
[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
Probation of Offenders Act, 1958: Object of legislation –
Held: To give the benefit of release of offenders on probation of
good conduct instead of sentencing them to imprisonment – Thus,
increasing emphasis on the reformation and rehabilitation of
offenders as useful and self-reliant members of society without
subjecting them to deleterious effects of jail life is what is sought to
be subserved.
Probation of Offenders Act, 1958: s.6 – Appellants were
convicted by trial court for offence under s.397 IPC and sentenced
to undergo rigorous imprisonment of seven years each – High Court
dismissed the appeal against the conviction by trial court –
Appellants filed special leave petition and annexed compromise deed
arrived at between the complainant and the appellants in terms
whereof the complainant had stated that he did not want to pursue
any action against the appellants and has no objection to their
release on bail on acquittal – Appellants have already served about
50% of their sentence while in custody – The prosecution however
objected that the minimum sentence provided by the statute under
s.397 IPC is seven years and the same cannot be reduced below
that period – On this submission, the appellants-convicts sought
benefit under the Probation of Offenders Act – Held: Appellants
were below 21 years of age as
on the date of offence – The benefit
of probation under the  Act is not excluded by the provisions of the
mandatory minimum sentence under s.397 of IPC, the offence in
the present case – Appellants have not served out the minimum
sentence of seven years though they have served about half the
sentences – They were aged under 19 and 21 years of age as on the
date of offence but not on the date of sentence – The redeeming
feature in their case is that the person who suffered, appears to
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have forgiven them, possibly with the passage of time – No adverse
report has been brought to notice against them about their conduct
in jail – Fit case to extend benefit of probation to the appellants
under the Act in view of the provisions of s.4 of the Act on completion
of half the sentence – Appellants are released on probation of good
conduct under s.4 of the Act on their completion of half the sentence
and on their entering into a bond with two sureties each to ensure
that they will maintain peace and good behaviour for the remaining
part of their sentence, failing which they can be called upon to
serve that part of the sentence – Penal Code, 1860 – s.397.
Probation of Offenders Act, 1958: s.4 – Essential feature of
– Held: “notwithstanding” contained in s.4 permits, despite anything
contained in any other law for the time being in force, the court to
release a person on bond, with or without sureties, for a period of
three years instead of sentencing him in order to ensure that he
keeps peace and good behaviour –  In this regard, under sub-section
(2), before making any order under sub-section (1), the court is
required to take into consideration the report, if any, of the probation
officer concerned in relation to the case.
Probation of Offenders Act, 1958: s.6 – Determining factors
while giving benefit under – Held:  The relevant aspects while giving
benefit under s.6 of the Act are: the nature of offence,
the character
of the offender, and the surrounding circumstances as recorded in
the probation officer’s report.
Probation of Offenders Act, 1958: s.4 and s.6 – Distinction
between – Held: s.4 is distinct from s.6 as it is discretionary in nature
while s.6 provides that a court “must not” sentence a person under
the age of 21 years to imprisonment unless sufficient reasons for
the same are recorded, based on due consideration of the probation
officer’s report.
Probation of Offenders Act, 1958: s.6 – Applicability of –
Held: Appellants were under 21 years of age on the date of the
offence and not on the date of conviction, s.6 would not come to
their aid.
Disposing of the appeals, the Court
HELD: 1.  The Statement of Objects and Reasons of the
said Act explains the rationale for the enactment and its
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amendments: to give the benefit of release of offenders on
probation of good conduct instead of sentencing them to
imprisonment.  Thus, increasing emphasis on the reformation
and rehabilitation of offenders as useful and self-reliant members
of society without subjecting them to the deleterious effects of
jail life is what is sought to be subserved.  Section 6 of the said
Act, as per its own title, provides for restrictions on imprisonment
of offenders under twenty-one years of age. [Para 6][275-B-D]
State of Madhya Pradesh v. Vikram Das (2019) 4 SCC
125: [2019] 3 SCR 691 – relied on.
2. The rationale is that the underlying purpose of the
provision being reformative – Section 6 being a special provision
enacted to prevent the confinement of young persons under 21
years of age in jail, to protect them from the pernicious influence
of hardened criminals.  In the facts of the present case, the
appellants are stated to be below 21 years of age as on the date
of offence.  The sentencing order was passed by the trial Court
noting that the appellants committed an offence of serious nature
against a poor person and were thus disentitled from the benefits
under the said Act or under Section 360 Cr.P.C. [Para 7]
[276-D-E]
3. In the case of the appellants, Section 3 would have no
application taking into consideration nature of offence.  However,
Section 4 could come to the aid of the appellants as the offence
committed, of which they have been found guilty, is not
punishable
with death or imprisonment for life.  However, the trial court
opined against the appellants.  Also the “notwithstanding”
contained in Section 4 permits, despite anything contained in any
other law for the time being in force, the court to release a person
on bond, with or without sureties, for a period of 3 years instead
of sentencing him in order to ensure that he keeps peace and
good behaviour.  In this regard, under sub-section (2), before
making any order under sub-section (1), the court is required to
take into consideration the report, if any, of the probation officer
concerned in relation to the case. [Para 8][278-D-G]
Satyabhan Kishore v. State of Bihar (1972) 3 SCC 350
– relied on.
LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.
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4. Section 4 is distinct from Section 6 as it is discretionary
in nature while Section 6 provides that a court “must not”
sentence a person under the age of 21 years to imprisonment
unless sufficient reasons for the same are recorded, based on
due consideration of the probation officer’s report. The relevant
aspects while giving benefit under Section 6 of the Act are: the
nature of offence, the character of the offender, and the
surrounding circumstances as recorded in the probation officer’s
report. [Para 9][278-G-H; 279-A]
5. The appellants who were under 21 years of age on the
date of the offence and not on the date of conviction, Section 6
would not come to their aid.  The benefit of probation under the
said Act is not excluded by the provisions of the mandatory
minimum sentence under Section 397 of IPC.  [Paras 10, 13]
[279-A-B; 280-C-D]
Ramji Missar vs. State of Bihar AIR 1963 SC 1088 :
[1963] Suppl. SCR 745 ; Ishar Das vs. State of Punjab
(1973) 2 SCC 65 : [1972] 3 SCR 312 ; Joginder Singh
vs. State of Punjab ILR (1981) P&H 1 – relied on.
6. The facts of the present case are that the appellants have
not served out the minimum sentence of 7 years though they
have served about half the sentences.  They were aged under 19
& 21 years of age as on the date of offence but not on the date of
sentence.  The redeeming feature in their case is that the person
who suffered, appears to have forgiven them, possibly with the
passage of time.  No adverse report has been brought to notice
against them about their conduct in jail.  This is a fit case that the
benefit of probation can be extended to the appellants under the
said act in view of the provisions of Section 4 of the said Act on
completion of half the sentence. The appellants are released on
probation of good conduct under Section 4 of the said Act on
their completion of half the sentence and on their entering into a
bond with two sureties each to ensure that they maintain peace
and good behaviour for the remaining part of their sentence, failing
which they can be called upon to serve that part of the sentence.
[Paras 14, 15][280-E-G; 281-A]
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Masarullah v. State of Tamil Nadu (1982) 3 SCC 458 ;
Sudesh Kumar v. State of Uttarakhand (2008) 3 SCC
111 : [2008] 2 SCR 146 ; CCE vs. Bahubali (1979) 2
SCC 279 : [1979] 1 SCR 1104 ; State vs. Ratan Lal
Arora, (2004) 4 SCC 590 : [2004] 1 Suppl. SCR 631
– referred to.
Case Law Reference
[2019] 3 SCR 691
relied on
Para 5
[1963] Suppl. SCR 745
relied on
Para 7
(1982) 3 SCC 458
referred to
Para 7
[2008] 2 SCR 146
referred to
Para 7
(1972) 3 SCC 350
relied on
Para 7
[1972] 3 SCR 312
relied on
Para 11
[1979] 1 SCR1104
referred to
Para 13
[2004] 1 Suppl. SCR 631
referred to
Para 13
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 47-48 of 2021.
From the Judgment and Order dated 24.10.2019 of the High Court
of Punjab & Haryana at Chandigarh in CRA-S-372-SB-2005 & CRA-
S–717-SB-2005.
Ms. Isha Aggarwal, Anirudh Sanganeria, Ms. Jaspreet Gogia,
Karanvir Gogia, Ms. Shivangi Singhal, Pardhuman Garg, Abhishek Kumar
Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The appellants were youngsters aged 20 and 19 years when
they fell foul of the law.  On 14.02.2003, at around 7.30 p.m., the
appellants alongwith co-accused Gurpreet Singh1 approached the
complainant – PW1 to hire a taxi to go to a village.  Enroute, when at
their behest the car was stopped, Gurpreet Singh caught hold of the
complainant and the appellant Jagdeep Singh took a dagger and inflicted
1 He faced trial before a Juvenile Court.
LAKHVIR
SINGH ETC. v. THE STATE OF PUNJAB & ANR.
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6-7 injuries on PW1’s forehead.  Appellant Lakhvir Singh inflicted 2-3
injuries on his abdomen and 1 injury on his neck using a knife.  The
complainant was thrown out of his taxi and the three people fled with
the taxi. In pursuance to the reporting of the crime by complainant, an
FIR was registered on 15.02.2003 under Section 382 and Section 307
read with Section 34 IPC.  Knife and dagger were recovered alongwith
the taxi and the trial Court framed charges under Section 397 IPC.   Post
trial, the appellants were convicted by the trial Court vide judgment dated
8.1.2005 and sentenced to undergo Rigorous Imprisonment of 7 years
each.
2. The appeal preferred by the appellants has been dismissed by
the impugned judgment dated 24.10.2019.
3. The appellants approached this Court by a special leave petition.
Annexed thereto, the compromise deed arrived at between the
complainant Amrik Singh and the appellants before us, in terms whereof
the complainant has stated that he did not want to pursue any action
against the appellants and has no objection to their release on bail or
acquittal.  The appellants have already served about 50% of their sentence
while in custody.
4. On 3.12.2020, this Court while recording the aforesaid plea,
issued notice on the SLP and on the prayer for interim relief of bail while
simultaneously impleading the complainant as the 2nd respondent.  On
18.12.2020, counsel for the State and respondent no.
2 entered
appearance and counsel for respondent no.2 confirmed that the dispute
had been amicably resolved.  However, counsel for respondent no.1
submitted that the minimum sentence provided by the statute under
Section 397 is 7 years and the same cannot be reduced below that period.
On this submission, learned counsel for the appellants sought benefit
under the Probation of Offenders Act, 1958, hereinafter referred to as
‘the Act’.  It is on the limited conspectus of the aforesaid aspect that on
11.01.2021, we granted leave and reserved the judgment upon conclusion
of arguments and the parties having filed their respective synopsis.
The legal position
5. The plea of the learned counsel for the State respondent no.1 is
based on the judgment of this Court in the case of State of Madhya
Pradesh v. Vikram Das2opining that the courts cannot impose less than
2 (2019) 4 SCC 125.
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the minimum sentence prescribed by the statute. He thus seeks continuing
detention of the appellants to serve out the remaining sentence.  On the
other hand, learned counsel for the appellants has sought the benefit
under the said Act in view of the age of the appellants when the offence
was committed.
6. We may notice that the Statement of Objects and Reasons of
the said Act explains the rationale for the enactment and its amendments:
to give the benefit of release of offenders on probation of good conduct
instead of sentencing them to imprisonment.  Thus, increasing emphasis
on the reformation and rehabilitation of offenders as useful and self-
reliant members of society without subjecting them to the deleterious
effects of jail life is what is sought to be subserved.  Section 6 of the said
Act, as per its own title, provides for restrictions on imprisonment of
offenders under twenty-one years of age.  The said provision reads as
under:
“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 offender, 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.”
7. A view was taken by a 4-judge bench of this Court in Ramji
Missar vs. State of Bihar,3while seeking to apply the said provision to
offenders who were under the age of 21 years on the date of sentencing
and not on the date of commission of offence.  In Masarullah v. State
3 AIR 1963 SC 1088.
LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.
[SANJAY KISHAN KAUL, J.]
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of Tamil Nadu4 there are observations to the effect that “in case of an
offender under the age of twenty one years on the date of commission
of the offence, the Court is expected ordinarily to give benefit of the
provisions of the Act and there is an embargo on the power of the Court
to award sentence unless the Court considers otherwise, ‘having regard
to the circumstances of the case including nature of the offence and the
character of the offender’, and reasons for awarding sentence have to
be recorded. Considerations relevant to the adjudication of this aspect
are, circumstances of the case, nature- of the offence and character of
the offender. It is, therefore, necessary to keep in view the afore-
mentioned three aspects while deciding whether the appellant should be
granted the benefit of the provisions of the Act.”  But in the subsequent
judgment in Sudesh Kumar v. State of Uttarakhand5 the judgment of
the four Judge Bench in Ramji Missar (supra) was noted as possibly
having escaped attention.  Thus, the legal position was clarified as the
one being reflected in Ramji Missar (supra). The rationale is that the
underlying purpose of the provision being reformative – Section 6 being
a special provision enacted to prevent the confinement of young persons
under 21 years of age in jail, to protect them from the pernicious influence
of hardened criminals.6  In the facts of the present case, the appellants
are stated
to be below 21 years of age as on the date of offence.  The
sentencing order was passed by the trial Court noting that the appellants
committed an offence of serious nature against a poor person and were
thus disentitled from the benefits under the said Act or under Section
360 Cr.P.C.
8. In Satyabhan Kishore v. State of Bihar,7this Court had noted
the distinction between Section 6, which is in the nature of an injunction
for courts to follow as distinct from Section 3 or 4 of the Act; which are
discretionary in nature.  The relevant provisions read as under:
“3. Power of court to release certain offenders after
admonition.—When any person is found guilty of having
committed an offence punishable under section 379 or section
380 or section 381 or section 404 or section 420 of the Indian
Penal Code, (45 of 1860) or any offence punishable with
imprisonment for not more than two years, or with fine, or with
4 (1982) 3 SCC 458
5 (2008) 3 SCC 111
6 Ishar Das v. State of Punjab, (1973) 2 SCC 65, pr.7
7 (1972) 3 SCC 350.
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both, under the Indian Penal Code or any other law, and no previous
conviction is proved against him and the court by which the person
is found guilty is 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 so to do, then, notwithstanding
anything contained in any other law for the time being in force,
the court may, instead of sentencing him to any punishment or
releasing him on probation of good conduct under section 4, release
him after due admonition.
Explanation.—For the purposes of this section, previous
conviction against a person shall include any previous order made
against him under this section or section 4.
4. Power of court to release certain offenders on
probation of good conduct.—(1) When any person is found
guilty of having committed an offence not punishable with death
or imprisonment for life and the court by which the person is
found guilty is 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, then, notwithstanding anything contained in any other
law for the time being in force, the court may, instead of sentencing
him at once to any punishment direct that he be released on his
entering into a bond, with or without sureties, to appear and receive
sentence when called upon during such period, not
exceeding three
years, as the court may direct, and in the meantime to keep the
peace and be of good behaviour:
Provided that the court shall not direct such release of an
offender unless it is satisfied that the offender or his surety, if any,
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.
(2) Before making any order under sub-section (1), the court
shall take into consideration the report, if any, of the probation
officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court
may, if it is of opinion that in the interests of the offender and of
the public it is expedient so to do, in addition pass a supervision
LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.
[SANJAY KISHAN KAUL, J.]
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order directing that the offender shall remain under the supervision
of a probation officer named in the order during such period, not
being less than one year, as may be specified therein, and may in
such supervision order impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section
(3) shall require the offender, before he is released, to enter into a
bond, with or without sureties, to observe the conditions specified
in such order and such additional conditions with respect to
residence, abstention from intoxicants or any other matter as the
court may, having regard to the particular circumstances, consider
fit to impose for preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order under sub-section
(3) shall explain to the offender the terms and conditions of the
order and shall forthwith furnish one copy of the supervision order
to each of the offenders, the sureties, if any, and the probation
officer concerned.”
In the case of the appellants, Section 3 would have no application
taking into consideration nature of offence.  However, Section 4 could
come to the aid of the appellants as the offence committed, of which
they have been found guilty, is not punishable with death or imprisonment
for life.  However, the trial court opined against the appellants.
We may
also note that the “notwithstanding” contained in Section 4 permits, despite
anything contained in any other law for the time being in force, the court
to release a person on bond, with or without sureties, for a period of 3
years instead of sentencing him in order to ensure that he keeps peace
and good behaviour.  In this regard, under sub-section (2), before making
any order under sub-section (1), the court is required to take into
consideration the report, if any, of the probation officer concerned in
relation to the case.
9. We may note that the aforesaid is distinct from Section 6 as it
is discretionary in nature while Section 6 provides that a court “must
not” sentence a person under the age of 21 years to imprisonment unless
sufficient reasons for the same are recorded, based on due consideration
of the probation officer’s report. The relevant aspects while giving benefit
under Section 6 of the Act are: the nature of offence, the character of
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the offender, and the surrounding circumstances as recorded in the
probation officer’s report.8
10. We may notice that since we are concerned with the appellants
who were under 21 years of age on the date of the offence and not on
the date of conviction, Section 6 would not come to their aid.  In a
subsequent judgment of this Court9, it was noted that in Masarullah
(supra), this Court had calculated the age of the convict as on the date
of commission of the offence incorrectly and there has been no discussion
of the potential tension between grant of probation under the Act and
the mandatory minimum sentence of 7 years under Section 397 of the
IPC.
11. The legal position insofar as invocation of Section 4 is
concerned has been analysed in Ishar Das vs. State of
Punjab10elucidating that non-obstante clause in Section 4 of the Act
reflected the legislative intent that provisions of the Act have effect
notwithstanding any other law in force at that time.  The observation in
Ramji Missar (supra) was cited with approval to the effect that in case
of any ambiguity, the beneficial provisions of the Act should receive
wide interpretation and should not be read in a restricted sense.
12. The aforesaid aspect is confirmed by the wording of the said
Act which reads as under:
“18. Saving of operation of certain enactments. —Nothing in
this Act shall affect the provisions of section 31 of the Reformatory
Schools Act, 1897 (8 of 1897), or sub-section (2) of section 5
of
the Prevention of Corruption Act, 1947 (2 of 1947), or of any law
in force in any State relating to juvenile offenders or Borstal
Schools.”
13. Even though, Section 5(2) of the Prevention of Corruption
Act, 1947 (hereinafter referred to as ‘the PC Act’) prescribes a minimum
sentence of imprisonment for not less than 1 year, an exception was
carved out keeping in mind the application of the Act.  In Ishar
Das(supra), this Court noted that if the object of the legislature was that
the Act does not apply to all cases where a minimum sentence of
imprisonment is prescribed, there was no reason to specifically provide
8 Masarullah vs. State of Tamil Nadu, 1982 3 SCC 458, pr.6.
9 Sudesh Kumar vs. State of Uttarakhand, (2008) 3 SCC 111.
10 (1973) 2 SCC 65.
LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.
[SANJAY KISHAN KAUL, J.]
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an exception for Section 5(2) of the PC Act.  The fact that Section 18 of
the Act does not include any other such offences where a mandatory
minimum sentence has been prescribed suggests that the Act may be
invoked in such other offences.  A more nuanced interpretation on this
aspect was given in CCE vs. Bahubali11.  It was opined that the Act
may not apply in cases where a specific law enacted after 1958 prescribes
a mandatory minimum sentence, and the law contains a non-obstante
clause.  Thus, the benefits of the Act did not apply in case of mandatory
minimum sentences prescribed by special legislation enacted after the
Act.12  It is in this context, it was observed in State of Madhya Pradesh
vs. Vikram Das (Supra) that the court cannot award a sentence less
than the mandatory sentence prescribed by the statute.  We are of the
view that the corollary to the aforesaid legal decisions ends with a
conclusion that the benefit of probation under the said Act is not excluded
by the provisions of the mandatory minimum sentence under Section
397 of IPC, the offence in the present case.  In fact, the observation
made in Joginder Singh vs. State of Punjab13 are in the same context.
The factual position
14. The facts of the present case are that the appellants have not
served out the minimum sentence of 7 years though they have served
about half the sentences.  They were aged under 19 & 21 years of age
as on the date of
offence but not on the date of sentence.  The redeeming
feature in their case is that the person who suffered, appears to have
forgiven them, possibly with the passage of time.  There is no adverse
report against them about their conduct in jail otherwise the same would
have been brought to our notice by learned counsel for the State.  Faced
with the aforesaid legal position, this is a fit case that the benefit of
probation can be extended to the appellants under the said act in view of
the provisions of Section 4 of the said Act on completion of half the
sentence.
15. We, thus, release the appellants on probation of good conduct
under Section 4 of the said Act on their completion of half the sentence
and on their entering into a bond with two sureties each to ensure that
they maintain peace and good behaviour for the remaining part of their
11 (1979) 2 SCC 279.
12 State vs. Ratan Lal Arora, (2004) 4 SCC 590.
13 ILR (1981) P&H 1

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sentence, failing which they can be called upon to serve that part of the
sentence.
16. The appeals are disposed of in the aforesaid terms leaving the
parties to bear their own costs.
Devika Gujral
Appeals diposed of.
LAKHVIR SINGH ETC. v. THE STATE OF PUNJAB & ANR.
[SANJAY KISHAN KAUL, J.]