Probation in Sessions Cases After BNSS: Why Maharashtra Courts Must Apply the Probation of Offenders Act First

A recurring sentencing issue before criminal courts in Maharashtra is whether probation can be granted in a sessions-triable offence, particularly where the offence is punishable up to five years and involves obstruction or assault on a public servant. The correct legal position is that the court must first examine the case under Section 4 of the Probation of Offenders Act, 1958, because the special probation law continues to govern eligible cases even under the BNSS framework.

The common error is to assume that once an offence is triable by the Court of Session, probation is ruled out. That assumption is legally unsound, because the real statutory bar under Section 4 of the Probation of Offenders Act is not the forum of trial, but whether the offence is punishable with death or imprisonment for life.

Introductory note

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Case Analysis of Supreme Court Judgment: The Superintending Engineer vs. The Labour Court, Madurai & Others

 

1.0 Factual Matrix: The Foundation of the Dispute

This analysis details a decade-long legal battle catalyzed by an employee's fundamental act of misconduct, which culminated in a landmark Supreme Court judgment clarifying a crucial intersection of Indian criminal and service law. The initial fraud set in motion a series of judicial interventions that tested the relationship between criminal probation and departmental disciplinary action. This section outlines the core facts that served as the genesis of the entire dispute.

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Gauhati HC Extends Benefit Of Probation of offenders Act To Man Convicted U/S 498A IPC, Says Offence Was Not Heinous

 It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon’ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard. {Para 7}

8. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon’ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The Hon’ble Apex Court opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the Hon’ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word ‘may’ clearly indicates that the discretion is vested with the court whether to release the offender in exercise of power under section 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

9. It was further held by the Hon’ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

10. Now, in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

11. In the case in hand, the offence was committed on 11.02.2008. The nature of offence cannot also be said to be heinous in the given circumstances of the present case. The victim and the accused have got remarried as recorded hereinabove. The accused has also offered the Mohr, paid the maintenance awarded, the wife had also withdrawn the maintenance case and in view of the aforesaid, in the considered opinion of this Court that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused petitioner by this court in exercise of its revisonal power.

 THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./331/2013

MD. BADRUT ZAMAN Vs  THE STATE OF ASSAM

BEFORE

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

Date of Judgement : 19.12.2024.

Citation:  2024:GAU-AS:12939.

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When disqualification to contest municipal election is removed?

 In view of the aforesaid position of law the disqualification
of the petitioner was removed by virtue of Section 12 of the Probation of
Offenders Act and such removal operated from 25.06.2007.   It cannot
therefore, be said that the petitioner was disqualified under Section 10 of
the Maharashtra Provincial Municipal Corporation Act, on the date of his
election i.e. on 16.04.2012 as a Member of the Municipal Corporation
from Prabhag No.21­B.  The trial Court has committed an error of law in
setting aside the election petition of the petitioner on such ground.  The
judgment   and   order   passed   by   the   trial   Court   cannot,   therefore,   be
sustained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.782 OF 2015
Karimuddin @ Karimlala Kazi,

V 
 Deepak s/o Shankarlal Jaiswal,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:  R.K. DESHPANDE, J.
DATE:          26th   AUGUST, 2015.
Citation:2016(5) ALLMR 119

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