Friday, 29 June 2018

Whether accused can ask court to call report under probation of offender Act?

In the case of Dnyandeo Bhade (Supra), the benefit
of probation of Offenders Act was granted by Court without
calling for report. The Court feel that although it is mandatory to
call for report, calling such report, it would be futile exercise and
waste of judicial time to remand matter to trial Court for passing
appropriate order. The accused in that case were convicted under
Sections 325 and 341 read with 34 of IPC.

18 Such powers are required to be exercised when it is
expedient to release the person under the provisions of Probation
of Offender's Act. The Court has to look into the factual aspects of
the case, circumstances of the case including the nature of the
offence and the character of the offender and after considering
the said aspects, if the Court finds it is proper to exercise its
inherent powers under the provisions of the Probation of
Offender's Act, such a facility can be provided to the accused
after calling for report of probation of offenders Act. The
submission that it is mandatory to call for report, whenever
application is made for invoking provisions of said Act as a matter
of course and deIn the case of Dnyandeo Bhade (Supra), the benefit
of probation of Offenders Act was granted by Court without
calling for report. The Court feel that although it is mandatory to
call for report, calling such report, it would be futile exercise and
waste of judicial time to remand matter to trial Court for passing
appropriate order. The accused in that case were convicted under
Sections 325 and 341 read with 34 of IPC.

18 Such powers are required to be exercised when it is
expedient to release the person under the provisions of Probation
of Offender's Act. The Court has to look into the factual aspects of
the case, circumstances of the case including the nature of the
offence and the character of the offender and after considering
the said aspects, if the Court finds it is proper to exercise its
inherent powers under the provisions of the Probation of
Offender's Act, such a facility can be provided to the accused
after calling for report of probation of offenders Act. The
submission that it is mandatory to call for report, whenever
application is made for invoking provisions of said Act as a matter
of course and decide the application cannot be accepted. This
would lead to situation that every accused would prefer such
application and would insists upon calling for report of Probation
Officer. In the present case,such report was not warranted and
trial Court was not inclined to exercise the powers considering
the nature of crime committed by applicant accused. Such powers
cannot be exercised randomly in every case. The offences against
children who are vulnerable sections of society are anti social.
The Courts are required to exercise utmost caution in
interpreting provisions of Probation of Offenders Act. cide the application cannot be accepted. This
would lead to situation that every accused would prefer such
application and would insists upon calling for report of Probation
Officer. In the present case,such report was not warranted and
trial Court was not inclined to exercise the powers considering
the nature of crime committed by applicant accused. Such powers
cannot be exercised randomly in every case. The offences against
children who are vulnerable sections of society are anti social.
The Courts are required to exercise utmost caution in
interpreting provisions of Probation of Offenders Act. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL REVISION APPLICATION NO.269 OF 2018

Nishant Harishchandra Salvi Vs. The State of Maharashtra 

CORAM : PRAKASH D. NAIK, J.
DATED : JUNE 18, 2018.



Heard both sides for final disposal of Criminal
Revision Application.
2 The applicant has invoked the inherent powers of this
Court under Section 482 of Cr.P.C. challenging the order passed
by the learned Special Judge under the POCSO Act rejecting the
application preferred by the petitioner to call the report of
probation officer under Section 4(1)(2) of Probation of Offenders
Act, 1958.
3 The applicant is prosecuted for the offence
punishable under Section 354A of Indian Penal Code and Section

8 of Protection of Children from Sexual Offences Act (hereinafter
referred to as “POCSO Act”, for short). The prosecution case is
that the accused was working as field officer at Apnalaya
Sanstha. The said sanstha was conducting free coaching classes
for students. Many children including victim used to attend
classes. The applicant accused molested and outraged modesty of
the victim girl. FIR was registered and, thereafter, charge-sheet
was filed. The trial had commenced. The evidence of the
witnesses was recorded. The statement of accused was also
recorded under Section 313 of Cr.P.C.
3 On recording statement under Section 313 of Cr.P.C.,
the trial Court recorded that, this is not a case of no evidence
against accused and he cannot be acquitted in accordance with
Section 232 of Cr.P.C. and, hence, accused was called upon to
enter on his defence if he so desired. At this stage, the applicant
preferred an application before the Court and sought directions
to call for the report under the provisions of Probation of
Offender's Act. The applicant contended that even in case under
POCSO Act such report can be called.
4 Special Court while rejecting the application vide

order dated 2nd April, 2018 has observed that the accused is
facing trial for the offence punishable under Section 354A of IPC
and Section 8 of POCSO Act. The minimum punishment
prescribed for the offence under Section POCSO Act is
imprisonment of three years. It is further observed that the
provisions of the Probation of Offender's Act cannot be invoked in
the present case as the accused is prosecuted under provision of
POCSO Act. It was also observed that benefits under provisions of
Section 4 of the Probation of Offender's Act can be given to the
accused when it is expedient to release him on probation of good
conduct. It is for the Court to consider the circumstances of the
case and the nature of offence as to when the benefit of the said
provisions can be given to the accused. The Court is required to
pass appropriate orders in the facts and circumstances of the
case having regard to the nature of offence, its general effect on
the society and the character of offender etc.
5 Learned advocate for the applicant submitted that the
trial Court has committed an error in rejecting the application. To
determine the requirement of grant of the facility under the said
provisions, it was mandatory for the trial Court to call for a report
and without calling for such a report, the Court ought not to have

rejected the application. The character of the accused or the need
to exercise powers under the provisions of the Act can be looked
into only after receipt of the report from the probation officer and
it is premature to reject the application without calling for
report. It is submitted that the Court has already formed its
opinion that it is not a case of no evidence and the accused was
called upon to enter upon his defence, if he so desires. The Court
has committed error in rejecting application as calling report of
Probation Officer was mandatory. It is further submitted that, the
Court has committed serious error by refusing to call for report,
since, without knowing socio-economic, psychological
background, the Court could not come to the conclusion whether
benefit of the said Act can be given or not. The applicant has no
previous criminal antecedents and his family consisting of wife
and children is dependent on him.
6 Learned counsel placed reliance on the decision of
this Court in the case of State, Through Police Inspector,
Mapusa Police Station Goa Vs. Shaikh Mohammad Rafiq
s/o. Shaikh Amrual Hassan1
; (2) Dnyandeo s/o. Shrirang
Bhade Vs. Laxman Yashwant Bhade & Ors.2
1 2009 ALL MR (Cri) 3489
2 2016 ALL MR (Cri) 2967

7 Learned APP submitted that the accused is facing
prosecution for a serious offence under Section 354A of IPC and
Section 8 of the POCSO Act. It is submitted that the offence
punishable under Section 8 of POCSO Act stipulates minimum
punishment of three years. It is submitted that the trial Court has
rightly rejected the application preferred by the petitioner. The
factual aspects of the prosecution case does not warrant exercise
of powers under the provisions of Probation of Offender's Act.
8 I have perused the documents and the impugned
order passed by the Special Court. The applicant accused is
charged for the offences, as stated above. The evidence of
witnesses is recorded and the statement of the accused under
Section 313 of Cr.P.C. is recorded. The applicant then preferred
an application calling for the report of the Probation Officer
under the provisions of Probation of Offenders Act. It would be
relevant to embark upon the relevant provisions of the Probation
of Offender's Act, which is sought to be invoked in the present
application.
Section 4 of the Probation of Offender's Act, reads as
follows:

“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 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.”
9 On perusal of the aforesaid provisions, it is implicit
that 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
10 The tenor of the aforesaid provisions makes it clear
that it is for the Court to decide whether it is expedient to release
the person on probation of good conduct. The Court should be of
the opinion that the circumstance of the case including nature of
the offence and character of the offender is required to be taken
into consideration while invoking the provisions of the Probation
of Offender's Act. In the present case, the trial Court has
observed that the accused is facing prosecution under Section
354A of IPC and is also prosecuted for an offence punishable

under Section 8 of POCSO Act. The prosecution case is that the
accused has sexually assaulted the minor girl and has also
outraged her modesty for which he has been tried. On the basis
of the observations made in paragraph no.3 of the impugned
order, the Court has refused to call for the report. The
submissions of the learned counsel for the applicant that
whenever an application is made, it is mandatory for the Court to
call for report and then to decide whether the powers can be
exercised is devoid of merits. The Court is always required to
apply its mind to the requirements for exercising such powers, as
contemplated under Section 4 of the Probation of Offender's Act.
In the case of State, Through Police Inspector, Mapusa
Police Station Goa Vs. Shaikh Mohammad Rafiq s/o. Shaikh
Amrual Hassan (Supra), this Court considered whether the
benefit of Probation of Offenders Act given to accused who was
convicted for the offence under Section 8(2) of Goa Children Act,
2003, by the Children's Court was justified. The accused on being
convicted for the aforesaid offences was ordered to be released
on probation, without even calling for report of the probation
officer. This Court, thus, observed that, the question which arises
is on what basis the Children Court came to the conclusion or
reasoning on the basis of which accused was provided benefit of

the said Act. It is in this circumstances, it was observed that the
report of Probation Officer is fundamental document for the
guidance of the Court whether to grant the benefit of probation
or not. The Court did not observe that whenever an application is
made seeking benefit under the provisions of the said Act, it is
mandatory for Court to call for report. The Court also considered
whether benefit of the said Act can be given to such offence
under the Children Act. The request of the advocate representing
accused that, the report of Probation Officer be called upon by
Court was not granted and the order passed by trial Court giving
benefit of Section 4(1) of the said Act was set aside and the
accused was sentenced to undergo imprisonment and pay fine. It
would be relevant to quote observation of this Court in paragraph
36 of the said decision.
“The P. O. Act is still in force, but 50 years down the
line with ever increasing crime rate, the benefits of
the P.O. Act, by judicial trend are not being extended
to large number of cases. This is not to say that it
ought not to be extended in appropriate cases. The
benefits have not been encouraged in cases
involving socio-economic offences, offences
involving sex perversity cases involving moral
turpitude or moral delinquency, cases involving

misappropriation of property, gold smuggling, food
adulteration offences, offences under Prevention and
Corruption Act, and even in cases under Section
304A of IPC. Judicial trend has been cautious in not
extending probation to persons who are educated
and experienced in life and deliberately flout the law
with impunity and to those who are potential
dangers to the society. It would be apt to refer to the
decision of the Supreme Court in Isher Das v. State
of Punjab : AIR 1972 SC 1295 though it was case
relating to food adulteration, but the observations
are very much relevant to our case as well. The Apex
Court stated that adulteration of food is menace to
public health. The Prevention of Food Adulteration
has been enacted with the aim of eradicating that
anti-social evil and for ensuring purity in the articles
of food. In view of the above object of the P.F.A. Act
and the intention of the legislature as revealed by
the fact that a minimum sentence of imprisonment
for a period of six months and a fine of rupees one
thousand has been prescribed, the Courts should not
lightly resort to the provisions of the Probation of
Offenders Act in the case of persons above 21 years
of age found guilty of offences under the Prevention
of Food Adulteration Act. As regards persons under
21 years of age, however, the policy of the law
appears to be that such a person inspite of his
conviction under the Prevention of Food
Adulteration Act, should not be deprived of the

advantage of Probation of Offenders Act which is a
beneficent measure and reflects and incorporates
the modern approach and latest trend in penology.
Again, in Pyarali K. Tejani AIR 1974 SC 288 another
case of adulteration of supari with saccharin, the
Apex Court observed:-
The kindly application of the probation
principle is negatived by the imperatives of
social defence and the probabilities of
moral proselytisation. No chances can be
taken by society with a man whose antisocial
operations guised as respectable
trade, imperil numerous innocents. He is a
security risk.
The same thing could be said of the offences under
the Act, wherein the legislature has also provided
minimum fine which by virtue of an amendment
carried out by Act 20 of 2005 is enhanced. Offences
against children who are vulnerable sections of
society are also anti-social and in this case is the
result of a depraved mind of the offender. In cases
like this, Courts are required to exercise utmost
caution in interpreting the provisions of probation
law and keep in forefront the public policy and the
impact of the offender's act on the society. If today, it
was PW2, tomorrow it will be someone else.
Observations of the Apex Court in Dalbir Singh AIR
2000 SC 1677 are also relevant. An offender against

children must also constantly inform himself that if
he commits a crime against them, he might not be
convicted of the offence and if convicted he would be
dealt leniently by the Court. He too must keep in
mind the fear psyche that if he is convicted, he will
not escape from jail sentence.”
11 While keeping the object of POCSO Act in mind, it
must also be borne in mind that the exercise of discretion given
to the Court under Section 4 of the Act needs considerable sense
of responsibility and the Court should not be misled into the free
use of Section by misplaced leniency and sympathy. The
provisions of the Act must be applied with discretion.
12 The Apex Court in Commandant 20 BN, ITB v.
Sanjay Binjola : 2001 5 SCC 317 held that:
“Nobody can claim the benefit of Sections 3 and 4 of
Probation of Offenders Act, as a matter of right and
the Court has to pass appropriate orders in the facts
and circumstances of each case having regard to the
nature of the offence, its general effects on the
society and character of the offenders etc.”
The Apex Court also observed that:

“There are laws which specifically direct that the
provisions of Probation of Offenders Act shall not
apply to the persons convicted for those offences
and there may be cases under laws as well which
may not justify the exercise of the powers of
Probation of Offenders Act. Even apart from such
exclusions the Courts should be wary of extending
the benefit of Probation of Offenders Act to offences
relating to corruption, narcotic drugs, etc.”
Referring the Dalbir Singh v. State of Haryana (Supra), the
Apex Court has reiterated that the benefit of Probation of
Offenders Act should not normally be afforded in respect of the
offences under Section 304-A of IPC when it involves rash or
negligent driving. Those are instances for showing how the
nature of offence could dissuade from giving the benefit.
However, considering that the case under Section 10 of Central
Reserve Police Force Act, 1949, was of trivial nature, the Apex
Court extended the benefit of Section 3 of the P. O. Act.
13 In State of U.P. v. Kishan : 2005 Cr.L.J. 333, the
Apex Court has observed that:-
“Undue sympathy to impose inadequate sentence
would do more harm to the justice system to

undermine the public confidence in the efficacy of law
and society could not long endure under such serious
threats. It is, therefore, the duty of every Court to
award proper sentence having regard to the nature of
the offence and the manner in which it was executed
or committed etc.”
The Apex Court further observed that:
“For deciding just and appropriate sentence to be
awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime
has been committed are to be delicately balanced on
the basic of really relevant circumstances in a
dispassionate manner by the Court. Such act of
balancing is indeed a difficult task and referring the
case of Dennis Councle (402 US 183 ) observed that
no formula of a foolproof nature is possible that would
provide a reasonable criterion in determining a just
and appropriate punishment in the infinite variety of
circumstances that may affect the gravity of the
crime. In the absence of any foolproof formula which
may provide any basis for reasonable criteria to
correctly assess various circumstances germane to
the consideration of gravity of crime, the
discretionary judgment in the facts of each case, is
the only way in which such judgment may be
equitably distinguished.”

14 In State of M.P. v. Saleem : 2005 Cr. L.J. 3435, the
Apex Court has observed as follows:-
“Imposition of sentence without considering its effect
on the social order in many cases may be in reality a
futile exercise. The Social impact of the crime, eg.
where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money,
treason and other offences involving moral turpitude
or moral delinquency which have great impact on
social order, and public interest, cannot be lost sight
of and per se require exemplary treatment. Any
liberal attitudes by imposing meager sentences or
taking too sympathetic view merely on account of
lapse of time in respect of such offences will be
result-wise counter productive in the long run and
against societal interest which needs to be cared for
and strengthened by string of deterrence inbuilt in
the sentencing system.”
(emphasis supplied)
15 In State of M.P. v. Munna Choubey and Anr. :
(2005 Cr. L.J. 913: [2005 ALL MR (Cri) 812 (S.C.)]), the Apex
Court has observed that:-
“The physical scar may heal up, but the mental scar
will always remain. When a woman is ravished, what

is inflicted is not merely physical injury but the deep
sense of some deathless shame.”
The Apex Court has referred to Dhananjoy Chattergee v. State
of W.B. : 1994 (2) SCC 220 and stated that:-
“Shockingly large number of criminals go unpunished
thereby increasingly, encouraging the criminals and
in the ultimate making justice suffer by weakening
the system creditability. The imposition of
appropriate punishment is the manner in which the
Court responds to the society crying for justice
against the criminal. Justice demands that Courts
should impose punishment befitting the crime so that
the Courts reflect public abhorrence of the crime.
The Court must not only keep in view the rights of
the criminal but also the rights of the victim of the
crime and the society at large while considering the
imposition of appreciate punishment.”
16 The Apex Court in Hussein V. Mohammed Saiyed
v. State of Gujarat has stated as follows:-
“The object of awarding appropriate sentence
should be to protect the society and to deter the
criminal from achieving the avowed object to break
the law by imposing appropriate sentence. It is
expected that the Courts would operate the

sentencing system so as to impose such sentence
which reflects the conscience of the society and the
sentencing process has to be stern where it should
be. Any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences
will be resultwise counterproductive in the long run
and against the interest of society which needs to be
cared for and strengthened by string of deterrence
inbuilt in the sentencing system. Justice demands
that Courts should impose punishment befitting the
crime so that the Courts reflect public abhorrence
of the crime. The Court must not only keep in view
the rights of the victim of the crime but the society
at large while considering the imposition of
appropriate punishment. The Court will be failing in
its duty if appropriate punishment is not awarded
for a crime which has been committed not only
against the individual victim but also against the
society to which both the criminal and the victim
belong.”
If offences against women and those involving moral turpitude or
moral delinquency including kidnapping require exemplary
treatment, as observed by the Apex Court in the State of M. P. v.
Saleem (supra) the offences against children cannot be left far
behind, for they too constitute a weaker section of the society.
The offences committed by the accused involves moral turpitude

or moral delinquency. The accused is educated man over 40 years
of age. The accused has committed offences obviously because he
has propensity or tendency to commit such offences and facts
show that it was committed with due deliberation and there is no
reason at all that he will not commit it again. As already stated, if
PW2 was the victim today, some else will be tomorrow.
Considering his age, even assuming that he gave a lift to the
victim boy, the accused was expected to show greater sense of
responsibility but manifested a very mischievous disposition and
therefore judicial attitude ought to have been against allowing
the benefit of probation to him, who was otherwise an educated
and experienced person in life. In my opinion, considering the
nature of offences committed by the accused, the accused is not
entitled to be released on probation.
17 In the case of Dnyandeo Bhade (Supra), the benefit
of probation of Offenders Act was granted by Court without
calling for report. The Court feel that although it is mandatory to
call for report, calling such report, it would be futile exercise and
waste of judicial time to remand matter to trial Court for passing
appropriate order. The accused in that case were convicted under
Sections 325 and 341 read with 34 of IPC.

18 Such powers are required to be exercised when it is
expedient to release the person under the provisions of Probation
of Offender's Act. The Court has to look into the factual aspects of
the case, circumstances of the case including the nature of the
offence and the character of the offender and after considering
the said aspects, if the Court finds it is proper to exercise its
inherent powers under the provisions of the Probation of
Offender's Act, such a facility can be provided to the accused
after calling for report of probation of offenders Act. The
submission that it is mandatory to call for report, whenever
application is made for invoking provisions of said Act as a matter
of course and decide the application cannot be accepted. This
would lead to situation that every accused would prefer such
application and would insists upon calling for report of Probation
Officer. In the present case,such report was not warranted and
trial Court was not inclined to exercise the powers considering
the nature of crime committed by applicant accused. Such powers
cannot be exercised randomly in every case. The offences against
children who are vulnerable sections of society are anti social.
The Courts are required to exercise utmost caution in
interpreting provisions of Probation of Offenders Act. The Law
Commission in the 47th report opined that the POCSO Act should

not be applicable to soci-economic offences. It is observed that
“But ultimately, the justification of all sentencing is the protection
of society. There are occasions when an offender is so anti social
that his immediate and sometime prolonged confinement is the
best assurance of society's protection. The consideration of
rehabilitation has to give way because of the paramount need of
society.”
19 Considering the circumstances and the prosecution
case in the present case, I do not find any merit in the
application. There is no infirmity in the order of the Sessions
Court and hence, this application is required to be rejected.
20 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Revision Application stands rejected;
(ii) It is clarified that the observations made in
this order are for adjudicating the issues
involved in this application. The trial Court
shall not be influenced by this order while
deciding the case.
(PRAKASH D. NAIK, J.)

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