Law Web: 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