# Ra111ji Missir v. The Sfa/ i: oj· Bihar

- **Citation:** [1963] Supp. 2 S.C.R. 745
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Criminal Appeal No. 144 of 1962
- **Bench:** S . .J. Imam, K. SuBBA RAo, N. RAJAOOl'ALA AYYANGAR, J. R. MuDHOLKAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ra111ji-missir-v-the-sfa-i-oj-bihar-2841
- **Pages:** 15

## Headnote

Probation of Offenders-Age of offenrler-Awlicability
of Act-Di•cretion of High Court-Probation of Offender• Act,
1958 (:!O of 1958), ss. 3, 4, 6, 11.
The appellants, R and B, who were brothers, were prosecuted for having assaulted S who as a result suffered grievous
injuries. Both the appellants were found guilty by the
Assistant Sessions Judge, and sentenced to various terms of
imprisonment.
While B was convicted under ss. 307 and
326 of the Indian Penal Code, the conviction of R was under
s. 324. Seotion 6 (1) of the Probation of Offenders Act, 1958,
enacts : "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
imprisonment .............. ". Though B was 19 years old,
s. 6 (1) was inapplicable to him as he was found guilty of
an offence punishable with imprisonment for life. R, the
elder brother, •vas aged 21, but the trial judge considered it
inappropriate to afford him the benefit of the section on the
ground that the act of assault was premeditated. On appeal,
the High Court set aside the convictions of B and in ~heir place
a finding of guilty under s. 324 of the Indian Penal Code was
recorded for which a sentence of 2 years was imposed, and,
as regards R, his conviction under s. 324 was maintained but
the sentence was reduced from 2 years to 9 months. On the
question of the applicability of the provisions of the Act to
the accused, the High Court took the view (1) thats. 6 (1) was
inapplicable to R because though he might have been under 21
years of age on the date of the offence he was not a person
under 21 years when the Sessions Judge found him guilty, and
(2) that though under s. 11 of the Act, the High Court was
competent to make an order in favour of B, it was entirely
discretionary for that Court to exercise the power conferred on
it under that section, and that in view of the fact that the
court below had already dealt with ·the matter, it was not
desirable to deal with the case of the appellant under the provisions of the Act at that stage.
1962
Uecembrr, 6,
1962
Ra111ji Missir
v.
The Sfa/ i: oj· Bihar
A;:vangar, J.
746 SUPREME COURT REPORTS [1963]SUPP.
l ldrl : (I)
that the ag-e
referred to in s. 6 (I) of the
l)rohation of Offenders Act, l 95B, is tliat when the court is deal ..
with the ofTrndcr, that Leing ·the point of tiine \Vhen the court
has lo choose het\\·een the t\\'O alternatives, \vhether to sentence
tJie offender to imprison1ncnt or to apply to him the provisions
of s, 6( l) of the Act.
(2)
that the courts mentioned in s. 11 of the Act, be
they trial courts or courts
exercising appellate or rcvisional
jurisdiction, are cmpo\vercd to exercise the jurisdiction conferred on courts not only under ss. 3 and 4 and the con-
&cq11cutial provisions but also under s. 6.
(J)
that the power conferred on appellate or other
courts by s. 11 (I) of the Act is of the same nature and characteristics an<l subject to the sa1ne criteria and lhnitations as
that conferred on the courts under ss. 3 and 4.
(4)
that the provisions of s. 6. (I) restrict the absolute
and unfettered discretion hnplied by the -word "may" in
s. II (I), anc! the entirety ofs. 6 (I) applies to guide or condition the jurisdiction of the High Court under s. l l (!).
(5)
that the crucial date for reckoning the age where
an appellate court modifies the judgment of the trial judge
when s. G becomes applicable to a person only on the decision
of an appellate or a revisional court, is that upon which the
trial court had to deal with the offender.

## Text

2 S.C.R. SUPRF.MF. COURT REPORTS
745
RAMJI MISSIR AND ANOTHER
IV.
THE STATE OF BIHAR
(S . .J. IMAM, K. SuBBA RAo, N. RAJAOOl'ALA
AYYANGAR and .J. R. MuDHOLKAH, JJ.)
Probation of Offenders-Age of offenrler-Awlicability
of Act-Di•cretion of High Court-Probation of Offender• Act,
1958 (:!O of 1958), ss. 3, 4, 6, 11.
The appellants, R and B, who were brothers, were prosecuted for having assaulted S who as a result suffered grievous
injuries. Both the appellants were found guilty by the
Assistant Sessions Judge, and sentenced to various terms of
imprisonment.
While B was convicted under ss. 307 and
326 of the Indian Penal Code, the conviction of R was under
s. 324. Seotion 6 (1) of the Probation of Offenders Act, 1958,
enacts : "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
imprisonment .............. ". Though B was 19 years old,
s. 6 (1) was inapplicable to him as he was found guilty of
an offence punishable with imprisonment for life. R, the
elder brother, •vas aged 21, but the trial judge considered it
inappropriate to afford him the benefit of the section on the
ground that the act of assault was premeditated. On appeal,
the High Court set aside the convictions of B and in ~heir place
a finding of guilty under s. 324 of the Indian Penal Code was
recorded for which a sentence of 2 years was imposed, and,
as regards R, his conviction under s. 324 was maintained but
the sentence was reduced from 2 years to 9 months. On the
question of the applicability of the provisions of the Act to
the accused, the High Court took the view (1) thats. 6 (1) was
inapplicable to R because though he might have been under 21
years of age on the date of the offence he was not a person
under 21 years when the Sessions Judge found him guilty, and
(2) that though under s. 11 of the Act, the High Court was
competent to make an order in favour of B, it was entirely
discretionary for that Court to exercise the power conferred on
it under that section, and that in view of the fact that the
court below had already dealt with ·the matter, it was not
desirable to deal with the case of the appellant under the provisions of the Act at that stage.
1962
Uecembrr, 6,
1962
Ra111ji Missir
v.
The Sfa/ i: oj· Bihar
A;:vangar, J.
746 SUPREME COURT REPORTS [1963]SUPP.
l ldrl : (I)
that the ag-e
referred to in s. 6 (I) of the
l)rohation of Offenders Act, l 95B, is tliat when the court is deal ..
with the ofTrndcr, that Leing ·the point of tiine \Vhen the court
has lo choose het\\·een the t\\'O alternatives, \vhether to sentence
tJie offender to imprison1ncnt or to apply to him the provisions
of s, 6( l) of the Act.
(2)
that the courts mentioned in s. 11 of the Act, be
they trial courts or courts
exercising appellate or rcvisional
jurisdiction, are cmpo\vercd to exercise the jurisdiction conferred on courts not only under ss. 3 and 4 and the con-
&cq11cutial provisions but also under s. 6.
(J)
that the power conferred on appellate or other
courts by s. 11 (I) of the Act is of the same nature and characteristics an<l subject to the sa1ne criteria and lhnitations as
that conferred on the courts under ss. 3 and 4.
(4)
that the provisions of s. 6. (I) restrict the absolute
and unfettered discretion hnplied by the -word "may" in
s. II (I), anc! the entirety ofs. 6 (I) applies to guide or condition the jurisdiction of the High Court under s. l l (!).
(5)
that the crucial date for reckoning the age where
an appellate court modifies the judgment of the trial judge
when s. G becomes applicable to a person only on the decision
of an appellate or a revisional court, is that upon which the
trial court had to deal with the offender.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 144 of 1962.
Appeal by special leave from the judgment
and order dated l\fay 10, 1962, of the Patna High
Court in Criminal Appeal No. 339of1961.
B. K. P. Sinha and A.G. Ratnaparkhi, for the
appellants.
S. P. Varma, P. D. 1Jle1wn and R. N. Sachtltey, for the respondent.
1962. December 6.
The Judgment of the
Court was delivered by
AYYANGAR, J. -
This appeal by ;pecial
leave granted by us on September 7, l\l62, raises for
2 S.C.R.
SUPREME COURT REPORTS
747
consideration the proper construction of ss. 6 an<l 11
of the Probation of Offenders Act, 1!!58 (XX of
J 958), hereinafter called the 'Act'.
The appellants are two brothers-Ramji and
Basis!. It was alleged that these two assaulted one
Sidhnath (P.W. 2) who as a result suffered grievous
injuries. Basist, the younger brother was charged
before the Assistant Sessions Judge, Arrah, with the
commission of an offence under s. 307, Indian Penal
Code, for the reason that the in jury he inflicted was
a bhala-blow under circumstances "that if by that
act death had been c;;msed he would have been guilty
of murder", and as the injury actually sustained
was grievous he was further charged with causing
grievous hurt under s. 326, Indian Penal Code. The
elder brother who too caused hurt to the victim was
charged under s. 324, Indian Penal Code.
The
Assistant Sessions Judge held the prosecution case as
alleged established against both the accuseo. It is
now necessary to mention that according to the
SessionsJudge Ramji was 21 years old and Basist 19.
Section 6 of the Act enacts :
"6. (1) When any /erson under twenty-one
years of age is foun 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 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 offender, it
would not be desirable to deal with him under
section 3 or section 4, and if the Court passes
any sentence of imprisonment on the offender,
it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether
it would not be desirable to deal under section 3
1961
Rany·i AJissir
Y;
Slate of Biltar
Ayy1111gar, J.
' •
19fi2
Romji 1l/isJir
v.
Stale t1,/Ri11tJr
A.v.vongar, /,
748 SUPREME COURT REPORTS [1963] SUPP.
or section ·~ with an offender referred to in subsection (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."
The terms of this section excluded the application or its provisions to Basist who was found guilty
of an offence punishable with imprisonment for life
(both ss. 307 and 3:W, Indian Penal Code).
He
accordingly sentenced Basist to undergo rigorous
imprisonment for six years under s. 307, Indian Penal
Code, and to four years under s. 326, Indian Penal
Code, the sentences to run concurrently.
As regards
Ramji, the el<ler brother, he considered it inappropriate to afford him the benefit of this provision and
rccorde<l his finding on this matter in these terms:
"So far as accused Ramji is concerned I am not
inclined to take recourse to the provisions of
the Probation of Offenders Act, 1958, because
the act of assault on the informant on the part
of this accused is premeditated."
He sentenced him to undergo rigorous imprisonment for two years under s. 324, Indian Penal Code.
Both the accused filed an appeal to the High
Court. The learned Single Judge who heard the
appeal considered the evidence in the case and the
circumstances in which the injury was inflicted and
held that there was no intention on the part ofBasist to
cause grievous hurt to P.W. 2, with the result that as
against him the conviction under s. 307 as well as
that under s. 326, Indian Penal Code, were set aside
and in their place he recorded a finding of guilty in
respect of an offence under s. 32~1. Indian Penal Code,
for which he imposed a srntencc of rigorous imprisonment for two years.
As against Ramji the conviction was maintained but being
informed by
2 S.C.R.
SUPREME COURT REPORTS
749
Counsel that that accused had been suffering from
tuberculosis the s.::ntence
of imprisonment was
reduced from 2 years to 9 months.
It was urged before the High Court that the
reasons assigned by the Assistant Sessions Judge for
refusing to apply the provisions of s. 6 of the Act
to accused Ramj i were not proper. This submission
was, however, repelled since the learned .Judges considered the section inapplicable to that accused because, though he might have been "under !JI Years
of age" on the date of the offence (October 17, 1960),
"he was not a person under 21 years of age'' on May
24, 1961, when the Sessions.Judge found him guilty
and sentenced him to a term of imprisonment, holding
that the crucial date on which the age had to be
determined being not the date of the offence but the
date on which as a result of a finding of guilty scntenc~ had to be passed against the accused.
A~ regards Basist also, it wa~ urged before the
High Court that in view of the alteration in the finding recorded as regards his guilt, the beneficial provisions of s. 6 of the Act became applicable to him, the
learned Judge holding that he could pass the same
order as the trial court could have done because
of the provisions contained in s. 11 of the
Act
reading :
"11. (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 irnprisonmcnt and also hy 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 :1 or section 4
is made by any Court trying the offender (other
than a High Court), an appeal shall lie to lhc
1962
Ramji Missir
••
Slate of Bihar
A_vyan.!!nr, J.
1962
Ramji Missir
v.
State of Bihar
Avvanear J.
750 SUPREME COURT REPORTS (1963] SUPP.
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 com·
mitted an offence and the Court by which he
is found guilty declines to deal with him under
section 3 or section 4, and passes against him
an} 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.
(4) When an order ha~ been made under section
3 or section 4 in respect of an offender, the
Appellate Court or the High Court in the exercise of its power of revision may set aside such
order and in lieu thereof pass sentence on such
offender according to law :
Provided that the Appellate Court or the
High Court in revision shall not inflict a greater punishment than might have been inflicted
by the Court by which the offender was found
guilty."
The learned Judge however, declined to do so
observing:
"No doubt, under the provisions of s. 11 of the
Probation of Offenders Act this Court is competent to make an order, but it is entirely discretionary for this Court to exercise the power conferred on it under s. 11. In view of the fact
that the Court below has already dealt with
2 S.C.R.
SUPREME COURT REPORTS
751
this matter, though not very satisfactorily, I do
not consider it desirable to deal with the cases of
these appellants under the provisions of the
Probation of Offenders Act at this stage."
and instead passed the sen lence of imprisonment
as already mentioned. It is the correctness of these
orders refusing to apply the provisions of s. 6 of the
Act to the cases of the appellants that is raised for
consideration in this appeal.
Taking first the case of Ramji, the elder brother, we entirely agree with the High Court in their
construction of s. 6.
The question of the age of the
person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which
he has been found, on the evidence, guilty. The
object of the Act is to prevent the turning of youthful
offenders into criminals by their association with hardened criminals of mature age within the walls of a
prison. The method adopted is to attempt their
possible reformation instead. of inflicting on them the
normal punishment for their crime. If this were
borne in mind it would be.dear that the age referred
to by the opening words of s. 6(1) should be that
when the court is dealin.g with the offender, that
being the point of time when the court has to choose
between the two alternatives which the Act in supersession of the normal penal Jaw vests in it, viz., sentence
the offender to imprisonment or to apply to him the
provisions ofs. 6(1) of the Act.
As the High Court
has found that Ramji was not a person under the
age of2 l on May 24, J061, when the learned Sessions
Judge found him guilty it is clear that s. H(l) of the
Act has no application to him.
The position in regard to the second appellantBasist-stands on an entirely different footing.
He
was said to be of the age of 19 by the Sessions Judge
1962
Ramji Missir
v.
Slate of Bi/uJr
A:vyangar. J.
1962
Ron~ji Missir
v.
Stale of Bihar
AJ:vangar, J.
752 SUPREME·coURT REPORTS [1963] SUPP.
which is apparentlv a reference to the time when the
offence was committed. If so, he would have been
about 20 at the time when the Session~ Judge found
him guilty of offences under ss. 307 and 326; Indian
Penal Code. and possibly also below 21 at the time
when the High Court altered his conviction into one
under s. 324, Indian Penal Code.
Ifby reason of his age, and the offence of which
he was been found guilty the provisions of s. 6(1) are
not excluded, the question that has next to be considered is whether the learned Judge had an absolute
and unfetterred discretion to pass or refuse an order
under the Act by virtue of the terms of s. 11 of the
Act. This would
obviously turn on (1) whether
or not s. 6(1) was applicable to the High Court,
and (2) the
proper
construction
of the terms
of s. 11 which empowers appellate and revisional
courts to pass orders under the Act.
It was urged by learned Counsel for the appellant that the High Court when it recorded a finding
that Basist was guilty of an offence under s. 324,
Indian Penal Code, was squarely within the words
"the court by which a person is found guilty" occurring ins. 6(1) as it was only by that Court that for
the first time the accused was found guilty of an
offence which wa' not excluded by the opening words
of that section. Learned Counsel relied for this
position on the judgment· of High Court of Madras
in Namyanaswami Naiiiu v. Emperor (1) following a
decision of the Allahabad High Court to a similar
effect in Em7>eror v. Birch (2).
The question that
arose in the first of the above cases related to the
scope of the words "Court before whom he is convicted" occurring in s. 562, Code of Criminal Procedure, as it originally stood. The provision in s. 562,
Code of Criminal Procedure, is somewhat in pari
materia withs. 4 of the Act wherein a person found
guilty of having committed offences not punishable
(II (1906) J.L.R. 29 Mad. 567.
12) (1902) I.L.R. 24 All. SOB.
2 S.C.R. SUPREME GOUR T REPORTS
753
with death or imprisonment for life may, instead of
being sentenced to imprisonment, be released on
entering into a bond. In the Code as originally
enacted which the decision referred to had to deal
with, there was no express provision as regards the
power of appellate courts to pass similar orders.
The
accused in that case was tried and convicted by a
magistrate under ss. 44 7 and 352, Indian Penal Code,
and sentenced to undergo rigorous imprisonment for
two weeks.
The accused filed an appeal and the
Deputy Magistrate who heard it while affirming
the conviction directed his release on his executing a
bond applying to him the provisions contained in
s. 562, Code of Criminal Procedure. The District
Judge considered that the Deputy
~1agistrate had
exceeded his jurisdiction in making this order and
referred the question to the High Court.
The learned Judges rejected the reference observin~ that the
words "Court before whom he is convicted' used in
s. 562 were not intended to limit the power of making
orders under that section to the cour! of first instance.
It might be mentioned that the Code has since
. been amended by the addition of sub-s. (2) which
runs:
"An order under this section may be made by
an appellate court or by the High Court when
exercising its powers of revision."
so that it is no longer necessary for an appellate or
revisional court to rely on any construction of the
words "the court by which the person is found
guilty" for invoking or exercising its jurisdiction.
The position therefore comes to this-the words
referring to "the court by which a person is found
guilty" are wide enough to include an appellate
court, and particularly so where it is the appellate
court alone which by reason of its finding on the
guilt of the accused becomes for the first time vested
with the power or the duty to act under the section.
196~
Ramji Mi1sir
••
Stale ef Bihal
Ayyangar, J
1962
Rmnji Missir
v.
f/4te of Bih4r
.dJ!1antar, J.
754 SUPREME COURT REPORTS [1963] SUPP.
Undoubtedly ifs. 11 were attracted to the case, then
there Would be no need for invoking the jurisdiction
of the High Court under s. 6, and indeed in those
circumstances the proper construction of s. 6 itself
would be to exclude an appellate or revisional court
since a redundancy could not have been intended by
the statute.
The first question would therefore be to ascertain whether the jurisdiction or powers envisaged by
s. 6(1) are within the scope of the jurisdiction conferred by s. 11. The power conferred on the High
Court is to pass "an order under the Act." One is
thrown back on the Act for determining what these
are. They arc:
(I) Under s. 3 a court might order the release
of a person found guilty of an offence of the type
specified in the section after due admonition.
(2) Under s. 4 an order may be passed in
circumstances set out in it releasing such person on
entering into a bond with or without sureties or pass
a supervision order.
(3) Orders which are consequential on orders
under s. 3 or s. 4 like those for which provision is
made by ss. 5 & 9. So far as s. 6 is concerned it is,
to say the least, doubtful whether it involves the
"passing of an order", for the operative words are
that the court finding a person guilty refrains from
passing any sentence. An injunction enacted by this
Act against passing a sentence of imprisonment which
the court under the normal law is empowered or
enjoined to pass can hardly be termed "passing an
order" under the Act. If this were correct, the
result would be that on the reasoning which the
High Courts of Madras ani Allahabad adopted to
construe the words iris. 562 of the C1:le, the High
0'.lurt, w11en hearing ari ap,>!al, WJll:I b! su'Jje~t
to the provisions of s. 6.
1
-
2 S.C.R. SUPREME COURT REPORTS
755
It is however possible that the words ins. 11 (1)
"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 wider 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 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. 11-be they trial courts or exercising appellate or revisionaljurisdiction 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.
Accepting therefore
the
interpretation of
s. 11 (1)
which
was
urged by Counsel for the
respondent, that the courts mentioned in it could pass
orders under ss. 3, 4 or 6, the question next to be
considered relates to the incidents of that jurisdiction
with regard to the amount and nature of discretion
vested in these courts.
It was submitted on behalf of the appellant
that the power conferred on the High Court and
other courts by s. 11 (1) was neither more nor less
than those of the court under s. 6 (1) and that the
former were bound to exercise it, subject to the same
conditions and limitations as are set out in the latter
provision. Stated in other words the interpretation
suggested was that the terms of s.6 had, so to speak, to
be read into the jurisdiction of the courts acting
under s. 11 ( 1 ).
On the other hand, the contention
urged by the respondent was that s. 11 ( l) had to be
read on its own language and so read it conferred on
1962
Ramji Missir
v.
State of Bihar
Ayyan1u, J.
1962
Ramji Missir
••
State of Bihar
Ayyangar, J.
756 SUPREME COURT REPORTS [1963] SUPP.
the courts mentioned in it, an absolute and unfettered
discretion "to pass or not to pass an order under the
Act" .as
they thought fit having regard to the
circumstances of each case.
A considerable portion of the argument by the
respondent was based on the import of the facultative
-
verb "may" in the words "may be made" occurring
in the operative part of the sub.section as conferring
a discretion and that as no limitations were placed
by this or any other section on the exercise of this
discretion, the same should be held to be unfettered
and therefore capable of being exercised, no doubt,
on judicial principles but not subject to any statutory
limitations. It might be mentioned that from the
relevant passage of the judgment of the High Court
which we have extracted, it would appear that the
learned Judge has proceeded on this interpretation
of s. II.
Though the word ''may" might connote merely
an enabling or permissive power in the sense of the
usual phrase "it shall be lawful", it is also capable
of being construed as referring to a competlable duty,
particularly when it refers to a power conferred on
a court or other judicial authority.
As .observed in
Maxwell on Statutes :
"Statutes which authorise persons to do acts
for the benefit of others, or, as it is sometimes
said, for the public good or the advancement
of justice, have often given rise to controversy
when conferring the authority in terms simply
enabling and not mandatory. In enacting that
they 'may' or 'shall' if they think fit, or 'shall
have power: or that, 'it shall be lawful' for
them to do such acts, a statute appears to use
the language of mere permission, but it has
been so· often decided as to have· become an
axiom that in such cases such
expressions
2 S.C.R. SUPREME COURT REPORTS
757
may have-to say the least-a compulsory
force."
The fact that the power is conferred on a Court
might militate against the literal interpretation of
"may" .suggested by the respondent. This apart, the
power conferred by s. 11(1) is to pass "an order under
the Act" and the question arises as to the precise
import of these words, and in particular whether these
words would not imply that the order to be passed
would be subject to the same limitations or conditions
as the orders under what might be termed the primary provisions of the Act.
Thus s. 3 empowers a
court to release certain offenders on probation of good
conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that
discretion is to be exercised : (1) that no previous
conviction should have been proved against him, and
(2) that the court by which the person is found guilty
should be of the 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 so to do. Similarly, s. 4 empowers a court to
release certain offenders on probation of good conduct,
The criteria laid down the~e and the guidance set out
is that the court by which the person is found guilty
should be 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,
with a proviso that the power is not to be exercised
unless the court were satisfied that the offender or his
surety 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.
Would it be a proper construction ofs. 11(1) to
hold that the High Court etc. could pass orders in
appeal or revision without reference to these standards,
1962
Ramji Missir
v.
State of Bihor
Ayyon1ar1 J.
1962
Ramji Missir
v.
Stale of Bihar
Ayyangar, J.
758 SUPREJ.VIE COURT REPORTS [1963) SUPP.
tests or guidance which the statute has prescribed for the primary courts? We are clearly of the
opinion that this is capable 011ly of a negative answer
and that the power conferred on appellate or other
courts by s. 11 ( l) was of the same nature and characteristics and subject to the same criteria and limita·
tions as that conferred on the courts under ss. 3 & 4.
We are confirmed in this view by the terms of s.11(3).
If this were so it would not be possible to adopt a
different rule of interpretation when one came to
consider the power under s. 6. It cannot, for ins·
tance, be suggested that the High Court could in its
discretion exercise the power under s. 6 in the case of
a person who is above the age of 21, nor where a
person is found guilty of an offence punishable with
death or imprisonme11t for life.
These limitations on
the exercise of the discretion have surely to be gathered only from the terms of s. 6(1). Ifs. 6(1) app·
lies so far to restrict the absolute and unfettered discretion implied by the word "may", it appears to us
that logically the conclusion is inescapable that the. entirety of s. fi( l) applies to guide or condition the jurisdiction of the High Court under s. 11(1). We therefore reject the submission made to us on behalf of the
respondent that an appellate court has an unfettered
discretion in dealing with a case which comes before
it under s. 11 and that its discretion and powers are
not to be governed by the terms of s. 6(1).
The question next to be considered is the result
of applying the terms of s. 6(1) to a person in the
position of Basist. It was 11ot disputed by learned
counsel for the respondent that the learned.Judge of
the High Court failed to consider the case of this
accused with reference to the terms of s. 6 since he
has proceeded on the basis that he had an unfettered
discretion in the matter and which in the circumstances of the present case he was not inclined to exercise in favour of the accused.
The order of the High
Court in so far as it relates to the second appellant-
•
2 S.C.R.
SUPREME COURT REPORTS
759
Basist-must therefore be set aside and the High Court
· directed to exercise its discretion on the basis that
it was judging the matter with reference to the criteria laid down in s. 6.
We shall now proceed to consider one question
which was mooted before us in regard to the crucial
date for reckoning the age where an appellate court
modifies the judgment of the trial Judge, whens. 6
becomes applicable to a person only on the decision
of an appellate or a revisional court. Is the age of
the offender to be reckoned as at the date of the
judgment of the trial Judge or is it the date
when the accused is, for the first time, in a position
to claim the benefit of s. 6. We consider that on the
terms of the section, on grounds of logic as well as
on the theory that the order passed by an appellate
court is the correct order which the trial court should
have passed, the crucial date must be that upon which
the trial court had to deal with the offender. In this
view as Basis! was admittedly below 21 years of age
at the time of the judgment of the Assistant Sessions
Judge, s. 6 was not inapplicable to him even assuming
he was above that age by the date of the order in
appeal.
The appeal is accordingly allowed in part i.e.,
in regard to the second appellant-Basist and is remanded to the High Court to consider the proper order to
be passed in his case by applying the provisions of s.
6 of the probation of offenders Act, 1958.
Appeal allowed in part.
1962
Ramji Mi.fsir
v.
Slate of Bihar
Ayyangar, J,