Legal Provisions Regarding Section 6 of the Probation of Offenders Act !
The question that often came up for consideration before the courts was whether the age of the offender for the purpose of application of Section 6 of the Probation of Offenders Act should be as on the date of commission of the offence or the date when the offender is convicted. The phraseology used in Section 6(1) of the Probation of Offenders Act, makes it clear that the age is to be reckoned at the time of the disposal of the case.
The decision of the Supreme Court in Ramji Missar v. State of Bihar supports this contention. In that case, two brothers, Ramji and Baist, were convicted for offences of attempted murder, grievous hurt and hurt under Sections 307, 326 and 324 IPC.
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The elder brother Ramji was below 21 years at the date of occurrence but above 21 years at the time of passing of the sentence. He was therefore, sentenced to two years’ RI under section 324 of the Indian Penal Code. The younger brother, Baist who was 19 years of age, was convicted of attempted murder and grievous hurt under sections 307 and 326, IPC and was sentenced to 6 and 4 years’ RI respectively.
He could not be admitted to the benefit of Probation of Offenders Act because offences under Sections 307 and 326 are punishable with imprisonment for life. Ramji was refused probation by the trial Court because his offence was premeditated. On appeal, the High Court reduced the sentence of both the appellants but refused them the benefit of probation.
The Supreme Court, however, allowed both Ramji and Baist, the benefit of probation since Section 6 of the Probation of Offenders Act was found inapplicable, particularly in case of Ramji.
In a criminal appeal, namely, Rakesh alias Duro Pravinbhai Thakar v. State of Gujarat the High Court of Gujarat held that for enabling the accused convicted under Sections 17 and 18 of the Narcotic Drugs & Psychotrophic Substances Act, 1985, to avail the benefit of Section 33 of the Act, the crucial age of eighteen years should be reckoned at the time when the convict has committed the alleged offence.
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The crucial question for determination before the Court was whether in order to earn benefit of Section 33 of the NDPS Act, the crucial age of 18 years should be reckoned at the time when the convict has committed the offence or at the time when the court is called upon to grant benefit of probation under Section 33 or the NDPS Act. The Court held:—
“We are of the view that if at the relevant time when the alleged offence was committed, the accused was under 18 years of age then in that case merely because of the circumstances entirely beyond his control, viz., that the trial could not be proceeded with as expeditiously as possible and terminated within the stipulated period of under 18 years of the convict, he cannot be blamed to deny his precious right of getting benefit of probation available under section 33 of NDPS Act. Such a precious right, as prescribed under the Probation of Offenders Act, can never be permitted to be circumvented or short-circuited where the accused cannot be said to be at fault and the trial gets protracted for unjust reasons.”
The Supreme Court in State of Haryana v. Premchand, upheld the verdict of the Court of Session that since the respondent was less than 21 years of age, the benefit of probation could not be denied to him, particularly, when he was not a previous convict. In the instant case, the accused who was above 16 years of age had committed an offence of attempt to rape under Sections 376/511, IPC which attracted punishment only upto ten years and not imprisonment for life.
He was therefore, allowed the benefit of release on probation by the trial Court under Section 360, Cr. P.C. or Section 4 of the Probation of Offenders Act, 1958. The Court of Session and the High Court declined to interfere and upheld the decision of the trial Court. Thereupon, the State of Haryana went in appeal to the Supreme Court against the sentence of the respondent’s release on probation. The Supreme Court dismissed the appeal and observed:
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“If the conviction of the accused were to be one under Section 376, I.P.C., he could have been awarded imprisonment for life or one extending to ten years. But the offence for which the respondent has been found guilty, is for attempt to rape. Therefore, it is idle to contend that the respondent has been held guilty for an offence which would attract imprisonment for life, disentitling him to the benefit of probation under Section 360, Cr. P.C. or Section 4 of the Probation of Offenders Act. Section 57, I.P.C. clearly points out that in calculating fractions of terms of imprisonment, life imprisonment shall be reckoned as imprisonment for 20 years. Thus, as provided under Section 511, I.P.C., the punishment for the offence, for which an attempt has been made, would be for a term which may extend to one-half of the longest term of imprisonment provided for the offence. Therefore, for offence under Section 376/511, I.P.C., the respondent could be awarded imprisonment for 10 years. On this reasoning, his case for probation is clearly made out and the appeal is dismissed.”