# [1964] 7 S.C.R. 676 - **Citation:** [1964] 7 S.C.R. 676 - **Court:** Supreme Court of India - **Decided:** 1962-05-31 - **Case number:** Criminal Appeal No. 190 of 1962 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-7-s-c-r-676-3102 - **Pages:** 17 ## Headnote ' ' 1961 April 10 676 SUPREME COURT REPORTS RATTAN LAL \'. STATE OF PUNJAB [K. SUBBA RAO, K.C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.t Probation of Offenders Act, 1958, ss. 611-Criminal LawConviction of accused by trial court before the coming into force of the Act-Whether High Court can exercise powers conferred on Court under s. 6. The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years. By an order dated May 31, 1962, he was convicted by magistrate and sentenced to rigorous imprisonment. He was also ordered to pay fine. At the time of his conviction, he was 16 years old. The Probation of Offenders Act, 1958 was extended to Gurgaon on September 1, 1962 and hence at the time of his conviction the magistrate had no power or duty to make any order under the Act. The appeal of the appellant was dismissed by the Additional Sessions Judge, Gurgaon by· his order dated September 22, 1962. His revision petition was also dismissed by the High Court on September 27, 1962. No ground was taken either before the Additional Sessions Judge or High Court that the provisions of the Probation of Offenders Act, 1958 should be applied in the case. After the dismissal of the revision petition, appellant filed a criminal miscellaneous petition requesting the High Court to exercise its powers ·under s. 11 of the Act and pass orders under ss. 3, 4 or 6 of the Act. The application was also dismissed by High Court. The appellant filed a petition in the High Court for the grant of a certificate of fitness to appeal to this Court and one of the grounds taken was that High Court should have acted under s. 11\0f the Act and passed orders under ss. 3, 4 or 6 of t!J.e Act. The certificate having been refused by High Court, the appellant came to this Court by special leave. Accepting the appeal, Held (Per Subba Rao and Das Gupta, JJ.): The order of the High Court be set aside and High Court be directed to make an order under s. 6 or if it so desires, remand the case to the Sessions Court for doing so. It is true that ordinarily, this court is reluctant to. allow a party to raise a point for the first time before it, but in this case. both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act. It i< true that the appellant did not bring the provisions of the Act to the notice of the Court till after the disposal of the revision . petition, but that does not absolve the court from discharging its . duty under the Act. The appellate court in appeal or the High Court on revision can, in exercise of the powers conferred under s. 11 of the Act, make an order under s. 6(1). The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. The Act distinguishes offenders below 21 years of age and those - 7 S.C.R. SUPRE:\IE COURT REPORTS 677 above that age and offenders who are guilty of committing an offence punishable with death or •imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them 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 offenders, it is not desirable to deal with them under ss. 3 and 4 of the Act. An order under s. 11(1) of the Act can be made by any court empowered to try and sentence the offender to imprisonment and also by High Court or any other court when case comes before it on appeal or in revision. The sub-section ex fade does not circumscribe the jurisdic ## Text _Characters 0–39,864 of 47,216. This is a partial read: ask again with offset=39864 for what follows._ ' ' 1961 April 10 676 SUPREME COURT REPORTS RATTAN LAL \'. STATE OF PUNJAB [K. SUBBA RAO, K.C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.t Probation of Offenders Act, 1958, ss. 611-Criminal LawConviction of accused by trial court before the coming into force of the Act-Whether High Court can exercise powers conferred on Court under s. 6. The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years. By an order dated May 31, 1962, he was convicted by magistrate and sentenced to rigorous imprisonment. He was also ordered to pay fine. At the time of his conviction, he was 16 years old. The Probation of Offenders Act, 1958 was extended to Gurgaon on September 1, 1962 and hence at the time of his conviction the magistrate had no power or duty to make any order under the Act. The appeal of the appellant was dismissed by the Additional Sessions Judge, Gurgaon by· his order dated September 22, 1962. His revision petition was also dismissed by the High Court on September 27, 1962. No ground was taken either before the Additional Sessions Judge or High Court that the provisions of the Probation of Offenders Act, 1958 should be applied in the case. After the dismissal of the revision petition, appellant filed a criminal miscellaneous petition requesting the High Court to exercise its powers ·under s. 11 of the Act and pass orders under ss. 3, 4 or 6 of the Act. The application was also dismissed by High Court. The appellant filed a petition in the High Court for the grant of a certificate of fitness to appeal to this Court and one of the grounds taken was that High Court should have acted under s. 11\0f the Act and passed orders under ss. 3, 4 or 6 of t!J.e Act. The certificate having been refused by High Court, the appellant came to this Court by special leave. Accepting the appeal, Held (Per Subba Rao and Das Gupta, JJ.): The order of the High Court be set aside and High Court be directed to make an order under s. 6 or if it so desires, remand the case to the Sessions Court for doing so. It is true that ordinarily, this court is reluctant to. allow a party to raise a point for the first time before it, but in this case. both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act. It i< true that the appellant did not bring the provisions of the Act to the notice of the Court till after the disposal of the revision . petition, but that does not absolve the court from discharging its . duty under the Act. The appellate court in appeal or the High Court on revision can, in exercise of the powers conferred under s. 11 of the Act, make an order under s. 6(1). The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. The Act distinguishes offenders below 21 years of age and those - 7 S.C.R. SUPRE:\IE COURT REPORTS 677 above that age and offenders who are guilty of committing an offence punishable with death or •imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them 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 offenders, it is not desirable to deal with them under ss. 3 and 4 of the Act. An order under s. 11(1) of the Act can be made by any court empowered to try and sentence the offender to imprisonment and also by High Court or any other court when case comes before it on appeal or in revision. The sub-section ex fade does not circumscribe the jurisdiction of an appellate court to make an order under the Act only in a case where the trial court could have made that order. The phraseology used therein is wide enough to enable the appellate court or High Court, when the case come before, it, to make such an order. It was purposely made comprehensive as the Act was made to implement a social reform. As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the legislature should have prohibited the exercise of such a power even if the case was pending against the accused at one stage or other in the hierarchy of tribunals. The term "court" in s. 6(1) includes an appellate court as well as revisional court. Per Raghubar Dayal, J. (dissenting}---When a person has been found guilty for the first time of an offence to which the provisions of ss. 3 and 4 of the Probation of Offenders Act, 1958 could apply, and such finding, be it of the trial court or of the appellate court, is arrived at before the application of the Act, the court of appeal or revision cannot take action under s. 11 (1) of the Act when the case comes before it in appeal or revision. It is true that appellate courts have allowed parties to take advantage of a Jaw enacted during the pendency of the case, but this is done when .parties can litigate further in view of the changed law and is done to save multiplicity of proceedings. Such a 'ground is not available in the present case. Ramji Missar v. State of Bihar, [1963] Supp. 2 S.C.R. 745. referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 190 of 1962. Appeal by special leave from the judgment and order dated Septen2ber 27, 1962 of the Punjab High Court in Criminal Revision No. 1172 of 1962. Nanak Chand, for the appellant. Gopal Singh, R.N. Sachthey and R.H. D/rebar, for the respondent. April 10, 1964. The Judgment of Subba Rao and Das Gupta JJ. was delivered by Subba Rao J. Raghubar Dayal, J. delivered a dissenting Opinion. 1964 Rattan Lal .,, State of Pv•jab 1964 Rattan Lal v. State of Punjab Subb<• Rao,J. 678 SUPREME COURT REPORTS [1964] SuBBA RAO, J.-This a(>peal by special leave raises the question of jurisdiction of an appellate court to exercise its power under s.6 of the Probation of Offenders Act. 1958 (Act, No: 20 of 1958), hereinafter called the Act, in respect of an accused who was convicted by the trial court before the Act came into force. The facts are not now in dispute. The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years. He was sent up for trial before the Magistrate, First Class. Palwal. The said Magistrate. on May 31, 1962, convicted him under ss. 451 and 354 of the Indian Penal Code and sentenced him to six months' rigorous imprisonment under each count and directed that the sentences should run concurrently. He further imposed a fine of Rs. 200/- on the appellant under s. 451 of the Indian Penal Code and ordered that, in default of payment of tine. he should undergo rigorous imprisonment for two months. The appellant was 16 years old at the time of his conviction. The Act was extended to Gurgaon District on September I. 1962 and, therefore, at the time the appellant was convicted by the Magistrate, the Magistrate had no power or duty to make any order under the Act. The appellant preferred an appeal against his conviction and sentences to the Additional Sessions Judge. Gurgaon, who by his judgment dated September 22, 1962. dismissed the appeal. Though by the time the Additional Sessions Judge disposed of the appeal the said Act had come into force, neither the appellant relied upon the provisions of the Act nor did the learned Additional Sessions Judge exercised his power thereunder. The revision filed in the High Court by the appellant was dismissed on September 27, 1962. The revision petition was dismissed in /i111i11e. but no ground was taken in the revision petition that the Additional Sessions Judge should have acted under s.6 of the Act. After the revision petition was disposed of. it appears that the appellant filed Criminal l\focellaneous Petition No. 793 of 1962 requesting the High Court to exercise its jurisdiction under s.11 of the Act and to pass orders under ss. 3, 4 or 6 thereof. The said application was also dismissed. Unfortunately the said application is not on the record and we are not in a position to know the exact scope of the relief asked for in the application and the reasons for which it was dismissed. The appellant tiled a petition in the High Court under Art. 134(1) (c) of the Constitution for a certificate of fitness to appeal to this Court. One of the grounds for seeking such a certificate was that the High Court should have acted under s. 11 of the Act and passed orders under ss .. 3, 4 or 6 thereof. That petition having been dismissed. the nppellant has preferred the present appeal to this Court by obtaining special leave. - 7 S.C.R. SUPREME COURT REPORTS 679 Learned counsel for the appellant contends that, having 1964 regard to the admitted facts 'in the case, the High Court should Hauan Lal have acted under s.11 of the Act and released the appellant on v. probation of good conduct instead of sending him to prison. 61•1• 01 Punjab On the other hand. learned counsel for the State argues that Subba Rao, J. the Act is not retrospective in opcratioQ and, therefore, it wil ! not apply to the appellant, as he was convicted before it came into force in Gurgaon District. Further. he contends that neither s.11 of the Act nor s.6 thereof, on the. basis of the express phraseology used therein, can be invoked in the circumstances of the present case. In any view, he says that the appellant, not having raised this plea till after the revision petition was disposed of by the High Court, is precluded by his default to raise this contention at this very late stage. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of . the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct. subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is ~atisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under ss. 3 and 4 of the Act. With this short background we shall now read the relevant provisions of the Act. Section 6. (l) 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 imprisonn_ient unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the l'ffender, it would not be desirable to deal with him Hnder section 3 or section 4. and if the Court passes ally sentence of imprisonment on the offender, it shall record its r.easons for doing so. 1964 Raltan Lal ... Blot• of Punjab 8ubba Rao, J. 680 SUPREME COURT REPOHTS [1964] (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 (I) 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. Section I I. (!) Notwithstanding anything contained in · the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentences of the former Court. (3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4, and passed against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit. IG x x x x x x The first question is whether the High Court, acting under s.11 of the Act. can exercise the power conferred on a court under s.6 of the Act. It is said that the jurisdiction of the High Court under s.11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore. it can only exercise such jurisdiction as the trial court had, and in the present case the trial court could not have made any order under s.6 of the Act, as at the time it made the order the Act had not been extended to $Jurgaon District. On this assumption, the argument proceeds. the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a numb~r of decisions bearing on the question of retroactivity of a .....- 7S.C.R. SUPREME COURT REPORTS 681 1964 RaUanLal ... statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Art. 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subject· ed to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibi· lion. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a. law is retrospective and if so, to what extent depends upon the interpretation of a particular statute, having regard to the well settled rules of construction. "Maxwell On Interpretation of Statutes", I Ith edition, at pp. 274-275, summarizes the relevant rule of construction thus: - Stal< o/ l'llnjd "The tendency of modern decision, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive re· gard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, were an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve. the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits. to be held to fall within its remedial influence." Let us now proceed to consider the question raised in the present case. This is not a case where an act, which was not an offence before the Act, is made an offence under the Act; nor /JublJa llalJ, J. 11~4 Ralta~ Lal v. ' Sim of Pttt Act did not confer such a power on the High Court. Dealing with this argument, this Court observed : - "It is however possible that the words in s.11 (I) "pass an order under the Act" are not to be construed so strictly and literally, but to be understood to mean "to exercise the powers or jurisdiction conferred by the Act." This wide interpretation might perhaps be justified by the scope and object of this section. Section 11 is to apply "notwithstanding anything in the Code or any other law" to all courts empowered to sentence offenders to imprisonment. To read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the ('l [1963] Supp. 2 S.C.R. 745, 755. ' 1964 1lallo1o Lal ... 8'41< of Punjab 8t!.l;ba Roo, J. 684 SUPREME COURT REPORTS [19641 powers under ss. 3 and 4 alone would not, in our opinion, be in accord with sound principles of statutory interpretation. We are therefore inclined to hold that the Courts mentioned in s.II be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under ss. 3 and 4 and the consequential provisions but also under s.6." When it was contended that the word "may" in' s. I I of the Act empowers the appellate court or the High Court to exercise the power at its option and the words "any order under the Act" empower it to make an order without reference to the standards laid down in the Act, this Court rejected both the contentions. It held that the expression "may" has compulsory force and that the power conferred on the ap- · pellate court was of the same nature and characteristic and subject to the same criteria and limitations as those .conferred on courts under ss. 3 and 4 of the Act. This decision lays down three propositions, namely, (i) an appellate court or a revisional court can make an order under s.6(1) of the Act in exercise of its power under s. II (I) thereof; (ii) it can make such an order for the first time even though the trial ,court could not have made such an order, having regard to the finding given by it; and (iii) in making such an order it is .subject to the conditions laid down in ss. 3, 4 and 6 of the Act. The only distinguishing feature. between the present case and the said decision is that in the present case the trial court did not make the order as the Act was not extended to the area within its jurisdiction and in the said decision the trial court did not make the order as it could not, on its finding that the accused was guilty of an offence punishable with imprisonment for life. But what is important is that this Court held that the High Court for the first time could make such an order under s. 11 of the Act, as such a power was expressly conferred on it by s. I I of the Act. We, therefore, hold that the appellate court in appeal or the High Court in revision can, in exercise of the power conferred under s. II of the Act, make an order under s.6(1) thereof, as the appellate court and the High Court, agreeing with the Magistrate, found the accused guilty of the offences for which he was charged. The next question is whether this Court can exercise the same power under s.11(1) of the Act. This Court in disposing of an appeal against an order of the High Court would be deciding what the High Court should have held in the revision before it. This Court's power would also be confined to the scope of the power exercisable by the High Court. This Court, therefore, can either make an order under s.6(1) of the Act or 7 S.C.R. SUPREME COURT REPORTS 685 direct the High Court to do so. But whether this Court direct1961 Jy makes an order under s.6(1) or directs the High Court to do Rattan Lal so, it is bound to comply with the provisions of s.6 of the Act. Y. A court cannot impose a sentence of imprisonment on a per· st .. t• 01 Punjab son under 21 years of age found guilty of having committed Subba &w, J. an offence punishable with imprisonment (but not with im· prisonment for life) 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 s.3 or s.4 of the Act. For 1he purpose of satisfying itself in regard to the said action, under sub·s. (2) of s. 6 of the Act the Court shall call for a report from the probation officer and consider the report, if any, and any other information avail.able to it relating to the character and physicd and mental condition of the offender. After considering the said material the court shall satisfy itself whether it is desirable to deal with the offender under s. 3 or s. 4 of the Act. If it is not satisfied that the offender should be.dealt with under either of the said two sections, it can pass the sentence of imprisonment on the offender after recording the reasons for doing so. It is suggested that the expression "if any" in sub-s. (2) of s.6 indicates that it is open to the court to call for a report or not; but the word "shall" makes it a mandatory \ condition and the expression "if any" can in the context only cover a case where notwithstanding such requisition the Probation Officer for one reason or other, has not submitted a report. Briefty stated the calling for a report from the Probation Qffi. cer is a condition precedent for the exercise of the power under s.6(1) of the Act by the Court. We think that in the circumstances of the case the best course is to remand the matter to the High Court to make an order after complying with s. 6(1) of the Act. Lastly it is contended that we should not at this very late stage of the proceeding, and especially in view of the observations of the Additional Sessions Judge in sentencing the accused, interfere with the order of the High Court. Ordinarily this Court would be reluctant to allow a party to raise a point for the first time-before it. But in this case both the Additional Sessi?~s Judge and the High Court ignored the mandatory prov1s1ons of the Act. n is true that the accused did not bring the provisions of the Act to the notice of the court till after the revision was disposed of. But that does not absolve the court from discharging its duty under the Act. The observa· tions made by the Additional Sessions Judge in sentencing the accused were tnade de hors the provisions of the Act. From t~ese obse~ations it cannot be held that the learned Additt?nal Sess~ons Judge had satisfied himself of the conditio11s Ja1d down m s.6(1) of the Act. That apart, as we have pointed 1964 Jlaltan Lal v. SW. of P~nj