# 'H ABDULQAYUM v. THE Sf ATE OF BmAR

- **Citation:** [1972] 2 S.C.R. 381
- **Court:** Supreme Court of India
- **Decided:** 1971-11-15
- **Case number:** Criminal Appeal No. 290 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-abdulqayum-v-the-sf-ate-of-bmar-5660
- **Pages:** 5

## Headnote

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ABDULQAYUM
v.
THE Sf ATE OF BmAR
November 15, 1971
381
[P. JAGANMOHAN REDDY AND D. G. PALEKAll, JI.]
Probation of Offenders Act (20 of 1958), ss. 4 and fr-Application of
.11ct-Courts to keep reformative aspect in mind.
The appellant, was convicted under s. 379 J.P.C. and sentenced to~
months R. I.. He committed the theft along wilh another accused.
Al
the time of the occurrence he was 16 year$ of age and at the time of conviction about 18 years.
The Probation Officer recommended that he may
be released on probation under s. 6 of !he Probation of Offenders Act,
1958, but the trial court declined to do so on the ground that he was an
associate· of the other accused who was a hardened criminal. The order
was confirmed in revision by the Hi~h Court.
Allowing the appeal to this Court,
HELD : The sentence should be set aside with the direi;tion that the
appellant be released under s. 4 of the Act on his entering into a bond,
with his father as surety, to appear and receive sentence by the trial court
whenever called upon to do so within a period of one year, and during that
time, to keep peace and oe of good behaviour. [385 C-D)
Section 4 empowers the trial court to release an ..,ftender on probation
and under the Act the power can be exercised by an appellate court.
(384 C-D]
In the present case, the report of the Probation Officer does not justify
the conclusion that the appellant was an associate of the other accused,
but on the contrary, the report was very favourable to him. The accused
was .neither a hardened criminal nor an associate of hardened criminals,
and to sentence him to imprisonment would defeat the ourpose of t'ie Act
to reform an offender and would achieve the object of associating him with
hardened criminals. (384 E, H; 385 A.CJ
Rattan Lal v. State of Punjab, A.LR. 1965 S.C. 444, referred to.

## Text

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ABDULQAYUM
v.
THE Sf ATE OF BmAR
November 15, 1971
381
[P. JAGANMOHAN REDDY AND D. G. PALEKAll, JI.]
Probation of Offenders Act (20 of 1958), ss. 4 and fr-Application of
.11ct-Courts to keep reformative aspect in mind.
The appellant, was convicted under s. 379 J.P.C. and sentenced to~
months R. I.. He committed the theft along wilh another accused.
Al
the time of the occurrence he was 16 year$ of age and at the time of conviction about 18 years.
The Probation Officer recommended that he may
be released on probation under s. 6 of !he Probation of Offenders Act,
1958, but the trial court declined to do so on the ground that he was an
associate· of the other accused who was a hardened criminal. The order
was confirmed in revision by the Hi~h Court.
Allowing the appeal to this Court,
HELD : The sentence should be set aside with the direi;tion that the
appellant be released under s. 4 of the Act on his entering into a bond,
with his father as surety, to appear and receive sentence by the trial court
whenever called upon to do so within a period of one year, and during that
time, to keep peace and oe of good behaviour. [385 C-D)
Section 4 empowers the trial court to release an ..,ftender on probation
and under the Act the power can be exercised by an appellate court.
(384 C-D]
In the present case, the report of the Probation Officer does not justify
the conclusion that the appellant was an associate of the other accused,
but on the contrary, the report was very favourable to him. The accused
was .neither a hardened criminal nor an associate of hardened criminals,
and to sentence him to imprisonment would defeat the ourpose of t'ie Act
to reform an offender and would achieve the object of associating him with
hardened criminals. (384 E, H; 385 A.CJ
Rattan Lal v. State of Punjab, A.LR. 1965 S.C. 444, referred to.
CRIMINAL APPELLATE JURISDICTION :
Criminal
Appeal
No. 290 of 1968.
Appeal by special leave from the judgment and order dated
August 8, 1968 of the Patna High Court in Criminal Revision
No. 1583 of 1967.
S. N. Misra, K. K. Sinha, B. B. Sinha, S. S. Jauhar and
S. K. Sinha, for. the appellant.
D. Goburdhun, for the respondent.
The Jud~ent of the Court was delivered by
P. Jaganmoban Reddy, J.
This Appeal is by Special Leave
against the Judgment of the Patna High Court l'J(ercising its Revi-.
sional jurisdiction by which tlle benefit of the provisions of the
382
SUPREME COURT REPORTS
[1972] 2 S.C.R.
Proba1ion of Offenders Act, 1958 (Act No. 20 of 1958) (hereinafter called 'the Act') was denied to the Appellant Qayum. The
Appellant was convicted under Sec. 379 of the Indian Panel
Code and sentenced to rigorous imprisonment for six months.
The prosecution case was that on the Vijayadashmi day in 1964,
Jagdish Kumar Sinha alongwith his friends had gone to Mahalia
Pathar Ki Masjid to see the procession.
He had in the pockt:t of
his pant a purpose containing Rs. 56/- in currency notes.
At
about 1.30 a.m. when he got down from fae Rikshaw and w~nt
to the pan shop to purchase pan and cigarette he discovered when
he wanted to pay the price of the pan and cigarette that somebody had picked his pocke1 and his purse was gone. He raise<l
a hue and cry am! seeing that two boys w~re running, he and his
friends chased them.
They succeeded with the help of the members of the public in catching the Appellant who had immediaiely
passed the money from the purse to his associa:te Shamim who
however escaped.
Both Shamim and the Appellant were convicted. It appears that before 'the Sub Divisional Magistrate a joint
peti-tion of the owner of the purse Jagdish Kumar Sinha and the
Appellant for permission to compound the offence was filed under
Sec. 345(2) of the Indian Penal Code. but it is
said no order
seems to have been passed on it and the Appellant was convicted
as aforesaid.
As we have not been able to ascertain :the truth or
otherwise of this fact we do not express any view thereon.
There
is no doubt that at the time of the alleged. occurrence :the Appellant was said to be only 16 years of age and at the time of his conviction he would be nhout 18 years of age.
Before the sentence
was passed on him itwas prayed that under Sec. 6 of 1he Act he
be t>~leascd pn probation and that no sentence should be passed
against him.
The Trial Court called for a Report from 1he Probation Officer in respect of both the Appellant and accused
Shamim. The )'robation Officer recommended that the Appellant should be given the benefit under the Act which recommendation however was rejected for reasons recorded by it and he was
sentenced to six months rigorous imprisonment as aforesaid. The
reasons given by the Trial Court for not giving the benefit to the
Appellant are as under :-
"In spite of his recommendations I do not feel inclined to extend the benefit of the provisions of the Probat!on of Offe.nders Act to accused. Qayum. Apparently
he 1s an associate of accused Sham1m who is a hardened
criminal and a person of doubtful character. Incidents
of pick-pocketing are very rampant in this subdivision
and it was just a stray chance that accused Qavum was
caught in this case.
Having re1rnrcl to these facts and
the nature of offence and the circumstances in which
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ABOUL QAYUM v. B!HAR (Jaganmohan Redd,v, i.)
383
accused Qayum was caught, he does not deserve the
benefit of Section 4 of the Act".
The Appeal filed against the conviction and sentence however
was dismissed and his prayer for giving him the benefit under the
Act was also rejected.
Thereafter he filed a Revision Petition
against his conviction and sentence in the High Court of Patna
whe1e, as appears from the Judgment of that Court, the only point
•that was urged on behalf of the Appellant was that on the date
when the revision came on for hearing the Appellant was below
20 years and the benefit of the provisions of the Act should have
been given •to him.
The High Court after tererring to the reasons
given by the Trial Court said thaot. the Probation Officer had not
made any recommendations for granting benefit under the Act to
the other accused Sham,im, in as much as he was a hardened criminal and a habitual pick pocket and therefore rejected the Revision
Petition as in its opinion the Trial Court was justified in not grant·
ing the benefit under the Act because of "the association of the
petitioner with such a hardned criminal and a pick pocket. ... "
In our view neither the Trial Court, the. Appellate Court, nor
the High Court applied their mind to the requirement of the provision of the Act.
As pointed out by this Court in Rattan Lal v.
The State of Punjab('), "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 recogni•tion of •the doctrine that the object of
criminal law is more to reform the individual offender than to
punish him".
The provisions of the Act must therefore be viewed
in the light of this laudable reformatory object which ithe legisla·
ture was seeking to achieve by enacting the legislation.
The Act
differentiated offenders below 21- years of age who. are guilty of
having committed an offence punishable with deaoth or imprison·
ment for life and those who are guilty of a lesser offeno~. It is
only in the case of offenders who are below the age of 21 years
and guilty of lesser offences than those punishable with death and
life imprisonment that an injunc'tion is issued to the Court not to
sentence them to imprisonment unless it is satisfied that having
regard <to the circumstances of tli'~ case including the nature of l!he
offence and the character of the offenders, it is not desirable to
deal with them under Sec. 3 and Sec. 4.
It is also provide·d in
su?-se~. 2 of Sec. 6 _that •the C?urt shall for the purposes of·satisfymg itself whether 1t should give the offender the benefit referred
to in sub-s·~c. ( 1 ) , call for and consider a report from a Probation
Officer along with any other information available to it reaMing to
the character. physical and mental condition of the offender.
It may be notejl that Sec .. 3 empowers the Court to release an
offender after admonition wh~re he has been found guilty of hPv·
(!) A.LR. 1965 (Vol. 52) S.C 444.
384
SUPREME COURT REPORTS
[1972] 2 S.C.R.
ing committed an offence under Sections 379, 380, 381, 404, 420
or any offence punishable with imprisonment of not more than
two years or fine or both either under 1he Indian Penal Code or
under any other law and that there is no previous conviction proved
against him; while Sec. 4 empowers it to release an offender on
probation of good character where it considers it expedient to do
so instead of sentencing him at once to
any punishable. In
Rattan Lal' s case ( 1) a question had arisen as to whether Section
11 (2) of the -Act circumscribes 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, and consequently in an
appeal against an order of the High Court passed in exercise of its
revisional jurisdiction, this Court could pass such an order. It was
held that the phraseology used therein was wide enough to enable
the Appellate Court or the High Court to make such an order and
that i1 was purposely made comprehensive as the Act was made to
implement a social reform, ·as such erther it could do so itself or
direct the High Court to do so.
In either case the provisions of
Sec. 6 of the Act have to be complied with.
In this case it is true that 'the Trial Court, tho~ Appellate Court
as well as the High Court did consider the question of giving the
benefit to the Appellant under Sec. 6 but in our view they have
completely misdirected themselves to the essential requirements of
that provision.
The Probation Officer's report nowhere indicates
that the accused is 'an associate of accused Shamim'. The High
Court thought apparently he is an associate of Shamim.
Even if
Sharnim was a hardened criminal as it appears from 1the Propation Officer's report dealing with that accused there was no warrant for infering that the Appellant was his associate.
A referrence to the report of the Probation Officer dated 7-8-65 would
show that the accused was approximately 18 years of age and
was physically and mentally normal.
Though he was illiterate he
had a vocational aptitude for tailoring and was working in the
Bihar Tailoring Works. He was interested towards his work as a
tailor and behaves properly with his father and brothers and has
normal association with friends.
Unfortuna1ely he lmt his mother
when he was 10 years old and his family history disclosed according to the report tha!t he comes from a poor family and though he
has no landed prooerty he has a house of his own to Jive in.
Both his father and his elder brother are employed.
The attitude
of the family towards the offender appellant was one of sympathy
and affection and the father exercised reasonable control over him.
The report of the neighbours is also in his favour.
In the end
· the Probation Officer expressed the view that •there is no report
against the character of the offend.er, no previous conviction ha5
0)A.T.R.1965(Vol. 52) S.C. 444.
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ABDUL QAYUM v. BIHAR (Jaganmohan Reddy, J.)
385
been proved against him prior to this case and in the circumstances
mentioned by him the release on probation may be a smuable
method to deal with him.
He therefore recommended that he be
released on probation by getting his father to execute a sui able
security. This report in our view does not justify the conclu;ion
that the appellant is either a hardened criminal or fa associa,ed
with hardened criminals for denying him the benefit of the provisions of the Act.
To sentence him to imprisonment would itself
achieve the object of associating him with hardened criminals
which association the Courts thought was a good ground for denying him the benefit of being released on probation.
We have no
doubt that if he is released on probation of good conduct there is
hope of his being reclaimed and afforded the opportun'ty to live
a normal life of a law abiding citizen.
In this view the Appeal
is allowed and the sentence is set aside with the direction that he
be released under Sec. 4 of the Aot on his entering·into a bond,
with his father as a surety in the sum of Rs. 500/- to appear and
receive sentence by the Trial Court whenever called upon to do so
within a period of one year and during that time to keep the peace
and be of good behaviour.
The Trial Court is directed to take a
bond from the ~ppellant and a surety bond from the Appellant's
father as aforesaid. His bail bond will enure till then and will be
deemed to be cancelled after the directions are carried out.
V.P.S.
)