Kaushal Memo PDF

IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE JURISDICTION
(BEFORE R.F. NARIMAN & INDU MALHOTRA, JJ.)
IN THE MATTER OF:
Arjun Petitioner
v.
NCT Delhi & Others Respondent
REVIEW PETITION (Crl.) No. 2611 of 2018

ON SUBMISSION TO THE HON‘BLE SUPREME COURT OF INDIA
UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA, 1950
WRITTEN SUBMISSION ON BEHALF OF PETITIONER
Humbly submitted by:
Kaushlendra Vikram
Roll No. 186260
Section ‗G‘
MEMORIAL ON BEHALF OF THE PETITIONER
1
TABLE OF CONTENTS
TABLE OF CONTENTS ...............................................................................................2
LIST OF ABBREVIATIONS ........................................................................................3
INDEX OF AUTHORITIES..........................................................................................4
STATEMENT OF JURIDICTION ................................................................................6
STATEMENT OF FACTS ............................................................................................7
STATEMENT OF ISSUES ...........................................................................................8
SUMMARY OF ARGUMENTS ...................................................................................9
ARGUMENTS ADVANCED .....................................................................................10
1. WHETHER THE REVIEW PETITION FILED BY APPLICANT IN THE

SUPREME COURT IS MAINTAINABLE?.........................................................10
2. WHETHER THE INTERPRETATION OF THE PROBATION OF OFFENDERS

ACT 1958 WAS AT VARIANCE WITH THE CLEAR AND SIMPLE
LANGUAGE THEREOF AT THE CRIMNAL APPEAL STAGE?.........15
PRAYER ......................................................................................................................42
2
LIST OF ABBREVIATIONS
& And
AIR All India Reporter
Art. Article
Del Delhi
SC Supreme Court
SCC Supreme Court Records
Sec. Section
PS Police Station
V Versus
Ch. Chapter
IPC Indian Penal Code
SCR Supreme Court Reporter
W.P Writ Petition
Anr. Another
F.I.R First Information Report
I.e. That is
Ltd. Limited
Pvt. Private
N.C.T National Capital Territory
Ors. Others
Cr. LJ Criminal Law Journal
Hon‘ble Honourable
3
INDEX OF AUTHORITIES
CASES REFFERED
1. Lily Thomas v. Union of India (2000) 6 SCC 224
2. Thungabhagra Industries Ltd. V. Govt. of A.P. (1964) 5 SCR 1974
3. Commissioner of Sales Tax v. Pine Chemicals Ltd. (1995) 1 SCC 58
4. Post Graduate Institute of Medical Education and Research, Chandigarh v.

Faculty Association (1998) 4 SCC 1
5. Common Cause v. Union of India (1999) 6 SCC 667
6. H.C. Puttaswamy v. Hon’ Chief justice of Karnataka, High Court Bangalore

(1991) Supp (2) SCC 421
7. S. Nagaraj v. State of Karnataka (1993) Supp (4) SCC 595
8. P.N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680
9. Sutheendraraja @ Suthenthira Raja @ Santhan v. State through DSP/CBI,

SIT, Chennai (1999) 9 SCC 323
10. Satvir Singh v. Baldeva (1996) 8 SCC 593
11. Simranjit Singh Mann v. Union of India (1992) 4 SCC 653
12. State of Karnataka v. T.R. Dhananajaya (1995) 6 SCC 254
13. Savita Kumar (Ms) v. Union of India (1993) 2 SCC 357
14. Independent Medico Legal Unit v. Attorney General of the Republic of

Kenya, 2013 EACJ 5
15. Sheonandan Paswan v. State of Bihar, (1983) 4 SCC 104 : 1983 SCC (Cri) 775
16. Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633 : 1973 SCC (Cri)
17. Mohd. Hashim v. State of U.P., (2017) 2 SCC 198 : 2016 SCC 1440
18. Ishar Das v. State of Punjab, (1973) 2 SCC 65 : 1973 SCC (Cri) 708
19. Jamal Haq v. State of Tripura, (2006) CA 59 of 2006
4
20. Aitha Chander Rao v. State of Andhra Pradesh, (1981) CA No. 337 of 1975
21. State of H.P. v. Dharam Pal, (2004) 9 SCC 681 : 2004 SCC (Cri) 1477
22. Mohd. Monir Alam v. State of Bihar, (2010) 12 SCC 26 : (2011) 1 SCC (Cri) 293
23. Musa Khan v. State of Maharashtra, (1977) 1 SCC 733 : 1977 SCC (Cri) 164
24. Satyabhan Kishore v. State of Bihar, (1972) 3 SCC 350 : 1972 SCC (Cri) 540
25. Ramji Missar v. State of Bihar, 1963 Supp (2) SCR 745 : AIR 1963 SC 1088 :
(1963) 2 Cri LJ 173
26. Prithvi Raj v. Kamlesh Kumar, (2004) 8 SCC 303 : 2005 SCC (Cri) 347
BOOKS REFFERED
Supreme Court Practice & Procedure – Raju Ramachandran
Corrections, the Essentials – Mary K. Stohr & Anthony Walsh
Child Rights in India, Law, Policy and Practice – Asha Bajpai
On Liberty – John Stuart Mill
WEBSITES REFFERED
www.scconline.com
www.manupatrafast.in
www.indiankanoon.org
www.bailii.org
LEGISLATIONS
Indian Penal Code, 1860
The Constitution of India, 1950
The Probation of Offenders Act, 1958
The Juvenile Justice Act, 1986
The Juvenile Justice Act, 2000
The Juvenile Justice (Care and Protection of Children) Act, 2015
5
STATEMENT OF JURIDICTION
The Honourable Supreme Court of India has the jurisdiction in this matter under
Article 1371 of the Constitution of India which reads as follows:
1
137. Review of judgments or orders by the Supreme Court.-
Subject to the provisions of any law made by the parliament or any rules made under article 145,
the Supreme Court shall have power to review any judgment pronounced or order made by it.
6
STATEMENT OF FACTS
1. That the Arjun (Appellant herein) was seventeen years old in 1995 when he
forcibly kissed Pinki (respondent herein) a sixteen years old girl in his school he
was very attracted to. The respondent filed a case of sexual assault against him.
After seventeen years of the case pending before a Magistrate, he was convicted
and sentenced to six months of simple imprisonment in the year 2012 and a fine
of Rs 1000/-. Meanwhile both the parties had settled well in their respective
families after marriage and both have their own children.
2. That the appeal of the appellant to the Sessions Court and the High Court was
dismissed in quick session on the ground that offences against women were on
the rise and needed to be dealt with severe punishment.
3. That the appellant filed an appeal before this Hon‘ble Court on sentence. The
appellant prayed for setting aside of the sentence of imprisonment under the IPC
and sought release on probation either under the Probation of Offender Act 1958
or under the Juvenile Justice Act 2000. This Hon‘ble Court in June 2016
dismissed the order and confirmed the order of Ld. Magistrate.
4. That the appellant has filed a review petition against this decision praying for
setting aside of punishment imposed on him. Now, the appellant is arguing that
the sentence of imprisonment is against all principles of sentence and also not in
consonance with the provisions of the Juvenile Justice Act 2015 under which his
offence is classified as a petty offence.
5. Hence the review petition by appellant.
7
STATEMENT OF ISSUES
1. Whether the Review Petition is maintainable in the Hon’ble Supreme

Court of India?
2. Whether the interpretation of The Probation of Offenders Act 1958

was at variance with the clear and simple language thereof at the
Criminal Appeal stage?
8
SUMMARY OF THE ARGUMENTS
1. THAT the Review Petition is maintainable in the Hon’ble Supreme Court of

India?
The review petition filed in the Supreme Court is maintainable as: firstly, there
existed an error apparent on the face of the record and secondly, the review is
maintainable on account of contravention of fundamental rights of cliente meum
(my client) under Art.14, Art.21 and the rights bestowed on him by virtue of
natural law.The State must follow the dictum directed to it by our founding
fathers under Art. 39 and Art.39(a) as part of Directive Principles of State
Policy.
2. THAT the Honourable Court erred in its Application of the principle of The
Probation of Offenders Act 1958?
That the Probation of Offenders Act, 1958 in S.3, S.4, S.5, S.6, S.9 and S.11
provides ample scope for releasing cliente meum on probation also there seems
to be plethora of case laws which have not been referred while making such a
decision.
9
ARGUMENTS ADVANCED
ISSUE: 1
Whether the Review Petition is maintainable in the Supreme

Court of India?
1.1 REVIEW PETITION FILED BY THE PETITIONER IS MAINTAINABLE
1. The constitution does not lay down the grounds on which the Supreme Court
may review its orders. Order XL Rule 1 of the Supreme Court Rules provides
that no application for review will be entertained in a civil proceeding except on
the grounds mentioned in Order XLVII Rule 1 of the CPC and in criminal
proceedings except on the ground of an error apparent on the face of the
record (find out more about it).
2. In Lily Thomas v. Union of India (2000)2 6 SCC 224, the court held that a review is
not an appeal in disguise and its purpose was to ensure that justice was not defeated and
errors leading to miscarriage of justice were remedied. The court held that errors
requiring review were those which were patent and apparent from the face of record
and were errors inadvertence, but not those that needed to be fished out
3. The Court in Thungabhagra Industries Ltd. v. Govt. of A.P. (1964)3, 5 SCR 1974, held
that there was a distinction between a mere erroneous decision and a decision which
could be characterized as vitiated by an ―error apparent‖, and a review was by no means
an appeal in disguise.
4. In Commissioner of Sales Tax v. Pine Chemicals Ltd. (1995)4, 1 SCC 58, the Court
held that an interpretation of statue law at variance with the clear and simple language
thereof, would be an error apparent on the face of the record warranting review.
2
Lily Thomas v. Union of India (2000), 6 SCC 224
3
Thungabhagra Industries Ltd. V. Govt. of A.P. (1964), 5 SCR 1974
4
Commissioner of Sales Tax v. Pine Chemicals Ltd. (1995), 1 SCC 58
10
5. In Post Graduate Institute of Medical Education and Research, Chandigarh v.
Faculty Association (1998)5, 4 SCC 1, the Court held that a review petition on the
ground that an earlier order had been rendered on a wrong appreciation of law, was
liable to be allowed.
6. Similarly, in Common Cause v. Union of India (1999)6 6 SCC 667, the Court
allowed a review petition filed by Capt. Satish Sharma on the ground that there
was an ―error apparent on the face of the record‖ resulting in serious miscarriage
of justice.
7. In H.C. Puttaswamy v. Hon’ Chief justice of Karnataka, High Court

Bangalore (1991)7, Supp (2) SCC 421, in this case some facts which were not
raised while hearing the special leave petitions were disposed of. Holding that it
was a human problem which required sympathetic consideration, the court
allowed the review petitions.
8. Another instance of the Court‘s broad view of its power of review in S. Nagaraj
v. State of Karnataka (1993)8, Supp (4) SCC 595, the Court observed that
review literally and even judicially meant re-examination and re-consideration ,
the basic philosophy inherent being the universal acceptance of human
fallibility. It was held that rectification of an order stems from the fundamental
principle that justice was above all and the power to rectify was to remove the
error and not to disturb finality. The Court observed that apart from the Order
XL Rule 1 of the Supreme Court Rules, it had inherent powers to make such
orders as may be necessary in the interest of justice or to prevent abuse of the
process of the Court, and it was not precluded from recalling or reviewing its
own order if it was satisfied that it was necessary to do so for the sake of justice.
5
Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association
(1998), 4 SCC 1
6
Common Cause v. Union of India (1999) 6 SCC 667
7
H.C. Puttaswamy v. Hon’ Chief justice of Karnataka, High Court Bangalore (1991) Supp (2) SCC
421
8
S. Nagaraj v. State of Karnataka (1993) Supp (4) SCC 595
11
9. In P.N. Eswara Iyer v. Registrar, Supreme Court of India (1980)9, 4 SCC 680,
the Court pointed out that despite the language of Order XL Rule 1 of the
Supreme Court Rules, the grounds for review in criminal proceedings are the
same as in civil proceedings. The Court observed: (at Para 34 of SCC)
―The Rule on its face, affords a wider set of grounds for review of orders in civil
proceedings, but limits the ground vis-s-vis criminal proceedings to ‗errors apparent
on the face of the record‘. If at all, the concern of the law to avoid judicial error
should be heightened when life or liberty is in peril since civil penalties are often less
traumatic. So it is reasonable to assume that the framers of the rules could not have
intended a restrictive review over criminal orders or judgments. It is likely to be the
other way about. Supposing an accused is sentenced to death by the Supreme Court
and the ‗deceased‘ shows up in Court and the Court discovers the tragic treachery of
the recorded testimony. Is the court helpless to review and set aside the sentence of
hanging? We think not. The power to review is in Article 137 and it is equally wide in
all proceedings. The rule merely canalizes the flow from the reservoir of power. The
stream cannot stifle the source. Moreover, the dynamics of interpretation depend on
the demand of the context and the lexica limits of the rest. Here ‗record‘ means any
material which is already on record or may, with the permission of the Court, be
brought on record. If justice summons the judges to allow a vital material in, it
becomes part of the record; and if apparent error is there, correction becomes
necessitous. The purpose is plain, the language is elastic and interpretation of a
necessary power must naturally be expansive. The substantive power is derived from
Article 137 and is as wide for criminal as for civil proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the
same area and not to engraft an artificial divergence productive of anomaly. If the
expression ‗record‘ is read to mean, in its semantic sweep, any material even later
brought on record, with the leave of the Court, it will embrace subsequent events, new
light and other grounds which we find in Order 47 Rule 1 CPC. We see no
insuperable difficulty in equating the area in civil and criminal proceedings when
review power is invoked from the same source.‖
9
P.N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680
12
10. In Sutheendraraja @ Suthenthira Raja @ Santhan v. State through DSP/CBI,
SIT, Chennai (1999)10, 9 SCC 323, the Court observed that after the decision in P.N.
Eswara Iyer case, the scope of review in criminal proceedings had been considerably
widened, but in any case review is not a re-hearing of the appeal all over again and to
maintain a review petition it has to be shown that there has been a miscarriage of
justice. ―Of course‖ the Court observed, ―the expression of ‗miscarriage of justice‘ is
all embracing‖.
―In a case where a bench of three judges delivered a judgment in which the opinion of
at least one judge is in favor of preferring imprisonment for life to death penalty as for
any particular accused, I think it would be proper premise for the bench to review the
order of sentence of death in respect of that accused. Such an approach is consistent
with Article 21 of the constitution as it helps saving a human life from the gallows
and at the same time putting the guilty accused behind the bars for life. In my opinion,
it would be a sound proposition to make a precedent that when on stated reasons in
preference to the sentence of life imprisonment that fact can be regarded sufficient to
treat the case as not falling within the ambit of ‗rarest of rare cases when the
alternative option is unquestionably foreclosed‘‖11
11. It is now well settled that a third party cannot move a review petition in criminal
appeal. Thus, in Satvir Singh v. Baldeva (1996) 8 SCC 593, the Court following its
decisions in Simranjit Singh Mann v. Union of India (1992)12 4 SCC 653, and State
of Karnataka v. T.R. Dhananajaya (1995)13 6 SCC 254, held that a third party,
including a relative, did not have locus standi to maintain a review petition in a
judgment rendered in criminal appeal.
12. In Savita Kumar (Ms) v. Union of India (199314) 2 SCC 357, the Supreme
Court allowed a review petition against a judgment rendered in a criminal appeal
10
Sutheendraraja @ Suthenthira Raja @ Santhan v. State through DSP/CBI, SIT, Chennai (1999) 9
SCC 323
11
Satvir Singh v. Baldeva (1996) 8 SCC 593
12
Simranjit Singh Mann v. Union of India (1992) 4 SCC 653
13
State of Karnataka v. T.R. Dhananajaya (1995) 6 SCC 254
14
Savita Kumar (Ms) v. Union of India (1993) 2 SCC 357
13
convicting a person under S.302 IPC and altered the conviction to one under S.304
IPC, holding the question of self-defense was one of both law and fact and in review
petition such a question could be examined if the court was satisfied that such a plea
was probable and there was basis for the same.
13. The above survey, though by no means exhaustive, shows that though the Court has in
its pronouncements sought to limit the exercise of its power of review (which is as it ought to
be, in order to prevent every dissatisfied party from seeking review), at the same time it has
been conscious of its own fallibility. When the Court has felt that it has erred and that a
miscarriage of justice has resulted, it has not hesitated to review its orders. It must always be
remembered that though the power of review under Article 137 of the constitution is to be
exercised in accordance with the provisions of Order XL of the Supreme Court Rules, the
Court cannot deny itself the powers available to it under Article 142 of the Constitution to do
complete justice in any cause or matter pending before it. Once a review petition is filed, the
matter is pending before it and the court can pass appropriate orders to do complete justice
and to prevent miscarriage of justice.
14. This is what is prayed by the petitioner today, the court today must give due
consideration to the review filed today as the Hon‘ble Supreme Court in its Judgment
of June, 2016, failed to appreciate adequately, the provision of law at the time at
which this complaint was brought against the petitioner. The Court has misconstrued
the provisions of the Act and has, based on the misrepresentation of the law, passed
an adverse judgment which has led to miscarriage of justice.
14
ISSUE: 2
Whether the interpretation of The Probation of Offenders Act 1958 was

at variance with the clear and simple language thereof at the Criminal
Appeal stage?
1. In Independent Medico Legal Unit v. Attorney General of the Republic of

Kenya(2013)15, EACJ 5, held that as regards substantive consideration of the
Application for review, the Court needs to address two inter-related issues: first, does
the Appellate Division of this Court have jurisdiction to review its own judgments;
and secondly, is the instant Application a proper application for the Court to review
its earlier judgment? The first issue arises out of Mr. Ngugi's objection to this
Division's jurisdiction. The second issue derives from Ms. Kilonzo's several
contentions to the effect that the Court's judgment was riddled with numerous errors
apparent on the face of the record.
2. Sheonandan Paswan v. State of Bihar, (1983)16 4 SCC 104: 1983 SCC (Cri)
775, held that the principles governing a review petition are well settled. Order XL
Rule (1) of the Supreme Court Rules provides:
―The court may review its judgment or order but no application for review will be
entertained in a civil proceeding except on the ground mentioned in Order XLVII
Rule 1 of the Code and in a criminal proceeding except on the ground of an error on
the face of the record.‖
3. In Meera Bhanja v. Nirmala Kumari Choudhury (1995)17 1 SCC 170, held that
error must be such as would be apparent on mere looking of the record without
requiring any long-drawn process of reasoning. An error apparent on the face of
record must be such an error which must strike one on mere looking at the record and
would not require any long-drawn process of reasoning on points where there may
conceivably be two opinions.
15
Independent Medico Legal Unit v. Attorney General of the Republic of Kenya, 2013 EACJ 5
16
Sheonandan Paswan v. State of Bihar, (1983) 4 SCC 104 : 1983 SCC (Cri) 775
17
Meera Bhanja v. Nirmala Kumari Choudhury (1995)17 1 SCC 170
15
4. Jugal Kishore Prasad v. State of Bihar (1972), 2 SCC 633 : 1973 SCC (Cri)18
48, the Probation of Offenders Act was enacted in 1958 with a view to provide for the
release of offenders of certain categories on probation or after due admonition and for
matters connected therewith. The object of the Act is to prevent the conversion of
youthful offenders into obdurate criminals as a result of their association with
hardened criminals of mature age in case the youthful offenders are sentenced to
undergo imprisonment in jail. The above object is in consonance with the present
trend in the field of penology, according to which effort should be made to bring
about correction and reformation of the individual offenders and not to resort to
retributive justice. Modern criminal jurisprudence recognises that no one is a born
criminal and that a good many crimes are the product of socio- economic milieu.
Although not much can be done for hardened criminals, considerable stress has been
laid on bringing about reform of young offenders not guilty of very serious offences
and of preventing their association with hardened criminals. The Act gives statutory
recognition to the above objective. It is, therefore, provided that youthful offenders
should not be sent to jail, except in certain circumstances. Before, however, the
benefit of the Act can be invoked, it has to be shown that the convicted person even
though less than 21 years of age, is not guilty of an offence punishable with
imprisonment for life. This is clear from the language of Section 6 of the Act. Sub-
section (1) of that section reads as under:
―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
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.‖ Further, Mr
Misra on behalf of the appellant has urged that as the offence under Section 326 read
with Section 149, Indian Penal Code is punishable not only with imprisonment for life
18
Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633 : 1973 SCC (Cri)
16
but also with imprisonment which may extend up to ten years, the benefit of Section 6
of the Act can be invoked by the appellant. This contention, in our opinion, is not well
founded. Plain reading of Section 6 makes it manifest that it deals with persons under
twenty-one years of age who are found guilty of having committed an offence
punishable with imprisonment but not with imprisonment for life. As imprisonment
for life can also be awarded for the offence under Section 326 read with Section 149,
Indian Penal Code, a person found guilty of such an offence would not be entitled to
claim the benefit of Section 6. To hold otherwise, would have the effect of ignoring
the words ―but not with imprisonment for life‖ and treating them to be otiose. Such a
construction is plainly not permissible. We also cannot subscribe to the view that the
offences excluded from the purview of the section are only those offences wherein
punishment prescribed is imprisonment for life and not for a lesser term, for the
language used in the section does not warrant such a view. On the contrary, the plain
meaning of the section is that the section cannot be invoked by a person who is
convicted for an offence punishable with imprisonment for life. The fact that
imprisonment for a lesser term can also be awarded for the offence would not take it
out of the category of offences punishable with imprisonment for life. The policy
underlying the Act appears to be that it is only in cases of not very serious nature viz.
offences not punishable with imprisonment for life that the convicted person should
have the benefit of provisions of the Act. ―Where, however, the offence for which a
person has been convicted is of a serious nature punishable with imprisonment for
life, the benefit of the Act would not be permissible in his case.‖
5. In the case of Som Nath Puri v. State of Rajasthan [(1972)19 1 SCC 630: AIR
1972 SC 1490] the appellant had been convicted for an offence under Section 409 of
the Indian Penal Code. Punishment for the offence under Section 409, Indian Penal
Code is the same as for the offence under Section 326, namely, imprisonment for life,
or imprisonment of either description for a term which may extend to ten years and
the liability to pay fine. It was held by this Court that in such a case the provisions of
Section 4 of Probation of Offenders Act cannot be invoked. It may be mentioned that
Section 4 of the Probation of Offenders Act also excludes from its operation persons
19
Som Nath Puri v. State of Rajasthan [(1972) 1 SCC 630: AIR 1972 SC 1490]
17
convicted of offences punishable with imprisonment for life. In that connection, the
Court observed:
―As the offence of criminal breach of trust under Section 409 IPC is punishable with
imprisonment for life, the High Court, in our view, was right because the provisions
of Section 4 are only applicable to a case of a person found guilty of having
committed an offence not punishable with death or imprisonment for life.‖
6. Mohd. Hashim v. State of U.P., (2017)20 2 SCC 198 : 2016 SC 1440, the issue
that arises for consideration is whether minimum sentence is provided for offences
under which the respondents have been convicted. On a plain reading of Sections 323
and 498-A, it is quite clear that there is no prescription of minimum sentence. The
learned counsel for the appellant would contend that Section 4 of the 1961 Act
provides for minimum punishment. To appreciate the said contention, the provision is
reproduced below:
―4. Penalty for demanding dowry.— Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of imprisonment
for a term of less than six months.‖
The learned counsel would submit that the legislature has stipulated for imposition of
sentence of imprisonment for a term which shall not be less than six months and the
proviso only states that sentence can be reduced for a term of less than six months
and, therefore, it has to be construed as minimum sentence. The said submission does
not impress us in view of the authorities in Arvind Mohan Sinha [Arvind Mohan
Sinha v. Amulya Kumar Biswas, (1974) 4 SCC 222: 1974 SCC (Cri) 391] and
Ratan Lal Arora [State v. Ratan Lal Arora, (2004) 4 SCC 590: 2004 SCC (Cri)
1353]. We may further elaborate that when the legislature has prescribed minimum
sentence without discretion, the same cannot be reduced by the courts. In such cases,
imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves
no discretion to the court. However, sometimes the legislation prescribes a minimum
sentence but grants discretion and the courts, for reasons to be recorded in writing,
20
Mohd. Hashim v. State of U.P., (2017) 2 SCC 198 : 2016 SCC 1440
18
may award a lower sentence or not award a sentence of imprisonment. Such discretion
includes the discretion not to send the accused to prison. Minimum sentence means a
sentence which must be imposed without leaving any discretion to the court. It means
a quantum of punishment which cannot be reduced below the period fixed. If the
sentence can be reduced to nil, then the statute does not prescribe a minimum
sentence. A provision that gives discretion to the court not to award minimum
sentence cannot be equated with a provision which prescribes minimum sentence. The
two provisions, therefore, are not identical and have different implications, which
should be recognised and accepted for the PO Act of 1958.
Presently, we shall advert to the second plank of the submission advanced by the
learned counsel for the appellant. In Rattan Lal v. State of Punjab [Rattan Lal v.
State of Punjab, AIR 1965 SC 444 : (1965) 1 Cri LJ 360] , Subba Rao, J., speaking
for the majority, opined thus: (AIR pp. 445-46, para 4)
―4. 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 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 Sections 3 and 4 of the Act.‖
(We have reproduced the aforesaid passage to understand the philosophy behind
the Act.)
19
In this regard, it is also seemly to refer to other authorities to highlight how the
discretion vested in a court under the PO Act is to be exercised. In Ram Parkash v.
State of H.P. [Ram Parkash v. State of H.P., (1972) 4 SCC 46 : 1973 SCC (Cri) 119
: AIR 1973 SC 780] , while dealing with Section 4 of the PO Act in the context of the
Prevention of Food Adulteration Act, 1954, the Court opined that the word ―may‖
used in Section 4 of the PO Act does not mean ―must‖. On the contrary, as has been
held in the said authority, it has been made clear in categorical terms that the
provisions of the PO Act distinguish offenders below 21 years of age and those 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. Thereafter, the
Court has proceeded to observe: (SCC p. 48, para 7)
―7. … 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 Sections 3
and 4 of the Act. (Rattan Lal v. State of Punjab [Rattan Lal v. State of Punjab, AIR
1965 SC 444: (1965) 1 Cri LJ 360] and Ramji Missar v. State of Bihar [Ramji
Missar v. State of Bihar, AIR 1963 SC 1088: (1963) 2 Cri LJ 173])”
We have referred to the aforesaid authority to stress the point that the court before
exercising the power under Section 4 of the PO Act has to keep in view the nature of
offence and the conditions incorporated under Section 4 of the PO Act. Be it stated in
Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82
: 2004 SCC (Cri) 1208 : AIR 2000 SC 1677] it has been held that Parliament has made
it clear that only if the Court forms the opinion that it is expedient to release the convict
on probation for the good conduct regard being had to the circumstances of the case and
one of the circumstances which cannot be sidelined in forming the said opinion is ―the
nature of the offence‖. The Court has further opined that though the discretion has been
vested in the court to decide when and how the court should form such opinion, yet the
20
provision itself provides sufficient indication that releasing the convicted person on
probation of good conduct must appear to the Court to be expedient. Explaining the
word ―expedient‖, the Court held thus: (SCC p. 86, paras 9-10)
―9. … The word “expedient” had been thoughtfully employed by Parliament in the
section so as to mean it as ―apt and suitable to the end in view‖. In Black's Law
Dictionary the word ―expedient‖ is defined as ―suitable and appropriate for
accomplishment of a specified object‖ besides the other meaning referred to earlier. In
State of Gujarat v. Jamnadas G. Pabri [State of Gujarat v. Jamnadas G. Pabri,
(1975) 1 SCC 138: AIR 1974 SC 2233] a two-Judge Bench of this Court has
considered the word ―expedient‖. The learned Judges have observed in para 21 thus:
(SCC p. 145)
‗‗21. … Again, the word ―expedient‖ used in this provision, has several shades of
meaning. In one dictionary sense, ―expedient‖ (adj.) means ―apt and suitable to the end
in view‖, ―practical and efficient‖; ―politic‖; ―profitable‖; ―advisable‖, ―fit, proper and
suitable to the circumstances of the case‖. In another shade, it means a device
―characterised by mere utility rather than principle, conducive to special advantage
rather than to what is universally right‖ (see Webster's New International Dictionary)‘.
It was then held that the court must construe the said word in keeping with the context
and object of the provision in its widest amplitude. Here the word ―expedient‖ is used
in Section 4 of the PO Act in the context of casting a duty on the court to take into
account ―the circumstances of the case including the nature of the offence…‖. This
means Section 4 can be resorted to when the court considers the circumstances of the
case, particularly the nature of the offence, and the court forms its opinion that it is
suitable and appropriate for accomplishing a specified object that the offender can be
released on probation of good conduct.‖
At this juncture, the learned counsel for the respondents would submit that no
arguments on merits were advanced before the appellate court except seeking release
under the PO Act. We have made it clear that there is no minimum sentence, and
hence, the provisions of the PO Act would apply. We have also opined that the court
21
has to be guided by the provisions of the PO Act and the precedents of this Court.
Regard being had to the facts and circumstances in entirety; we are also inclined to
accept the submission of the learned counsel for the respondents that it will be open
for them to raise all points before the appellate court on merits including seeking
release under the PO Act.
7. In Ishar Das v. State of Punjab, (197321) 2 SCC 65 : 1973 SCC (Cri) 708, it
was observed that It is manifest from plain reading of sub-section (1) of Section 4 of
the Act that it makes no distinction between persons of the age of more than 21 years
and those of the age of less than 21 years. On the contrary, the said sub-section is
applicable to persons of all ages subject to certain conditions which have been
specified therein. Once those conditions are fulfilled and the other formalities which
are mentioned in Section 4 are complied with, power is given to the court to release
the accused on probation of good conduct. Section 6 of the Act deals specifically with
persons under twenty-one years of age convicted by a court for an offence punishable
with imprisonment other than imprisonment for life. In such a case an injunction is
issued to the court not to sentence the young offender to imprisonment. Unless the
court is of the view 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
release him after admonition under Section 3 or on probation of good conduct under
Section 4 of the Act.
8. The question which arises for determination is whether despite the fact that a
minimum sentence of imprisonment for a term of six months and a fine of rupees one
thousand has been prescribed by the legislature for a person found guilty of the
offence under the Prevention of Food Adulteration Act, the court can resort to the
provisions of the Probation of Offenders Act. In this respect we find that sub-section
(1) of Section 4 of the Probation of Offenders Act contains the words
―notwithstanding anything contained in law for the time being in force‖. The above
non obstante clause points to the conclusions that the provisions of Section 4 of the
Probation of Offenders Act would have overriding effect and shall prevail if the other
21
Ishar Das v. State of Punjab, (1973) 2 SCC 65 : 1973 SCC (Cri) 708
22
conditions prescribed are fulfilled. Those conditions are: (1) the accused is found
guilty of having committed an offence not punishable withdeath or imprisonment for
life, (2) the court finding him guilty is 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 to release him on probation of good conduct and (3) the
accused in such an event enters 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. Sub-section (1) of Section 6 of the abovementioned Act, as stated earlier,
imposes a duty upon the court when it finds a person under 21 years of age, guilty of
an offence punishable with imprisonment other than imprisonment for life, not to
sentence him to imprisonment unless the court 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 4 of the Act
but to award a sentence of imprisonment to him. The underlying object of the above
provisions obviously is that an accused person should be given a chance of
reformation which he would lose in case he is incarcerated in prison and associates
with hardened criminals. So far as persons who are less than 21 years of age are
concerned, special provisions have been enacted to prevent their confinement in jail at
young age with a view to obviate the possibility of their being subjected to the
pernicious influence of hardened criminals. It has accordingly been enacted that in the
case of a person who is less than 21 years of age and is convicted for an offence not
punishable with imprisonment for life. He shall not be sentenced to imprisonment
unless there exists reasons which justify such a course. Such reasons have to be
recorded in writing.
According to Section 18 of the Probation of Offenders Act, the aforesaid Act shall not
affect the provision of sub-section (2) of Section 5 of the Prevention of Corruption
Act, 1947 (Act 2 of 1947). The last mentioned provision, namely, sub-section (2) of
Section 5 of the Prevention of Corruption Act, prescribes, in the absence of special
reasons, a minimum sentence of imprisonment for a term of not less than one year for
those convicted under Section 5 of that Act. If the object of the legislature was that
23
the provisions of the Probation of Offenders Act should not apply to all cases where a
minimum sentence of imprisonment is prescribed by the statute, there was no reason
to specify sub-section (2) of Section 5 of the Prevention of Corruption Act in Section
18 of the Probation of Offenders Act. The fact that out of the various offences for
which the minimum sentence is prescribed, only the offence under sub-section (2) of
Section 5 of the Prevention of Corruption Act has been mentioned in Section 18 of the
Probation of Offenders Act and not the other offences for which the minimum
sentence is prescribed, shows that in case of such other offences the provisions of
Probation of Offenders Act can be invoked.
The provisions of Probation of Offenders Act, in our opinion, point to the conclusion
that their operation is not excluded in the case of persons found guilty of offences
under the Prevention of Food Adulteration Act. Assuming that there was reasonable
doubt or ambiguity, the principle to be applied in construing a penal act is that such
doubt or ambiguity should be resolved in favour of the person who would be liable to
the penalty (see Maxwell on Interpretation of Statutes, p. 239, 12th Edn). It has also to
be borne in mind that the Probation of Offenders Act was enacted in 1958 subsequent
to the enactment in 1954 of the Prevention of Food Adulteration Act. As the
legislature enacted the Probation of Offenders Act despite the existence on the statute
book of the Prevention of Food Adulteration Act, the operation of the provisions of
Probation of Offenders Art cannot be whittled down or circumscribed because of the
provisions of the earlier enactment viz. Prevention of Food Adulteration Act. Indeed,
as mentioned earlier, the non obstante clause in Section 4 of the Probation of
Offenders Act is a clear manifestation of the intention of the legislature that the
provisions of the Probation of Offenders Act would have effect notwithstanding any
other law for the time being in force. We may also in this context refer to the decision
of this Court in the case of Ramji Missir v. State of Bihar [AIR 1963 SC 1088: 1963
Supp 2 SCR 745: (1963) 2 Cri LJ 173] wherein this Court while dealing with the
Probation of Offenders Act observed that its beneficial provisions should receive wide
interpretation and should not be read in a restricted sense.
24
Adulteration of food is a menace to public health. The Prevention of Food
Adulteration Act 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 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 in spite 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.
9. Similarly in Jamal Haq v. State of Tripura (2006)22, CA No.59 of 2006 and

Aitha Chander Rao v. State of Andhra Pradesh (198123), CA No.337 of 1975
accused were released on probation after due admonition after paying a fine so that
they could retain their jobs.
10. In State of H.P. v. Dharam Pal, (2004)24 9 SCC 681 : 2004 SCC (Cri) 1477,
According to us, the offence of an attempt to commit rape is a serious offence, as
ultimately if translated into the act leads to an assault on the most valuable possession
of a woman i.e. character, reputation, dignity and honour. In a traditional and
conservative country like India, any attempt to misbehave or sexually assault a
woman is one of the most depraved acts. The Act is intended to reform the persons
who can be reformed and would cease to be a nuisance in the society. But the
discretion to exercise the jurisdiction under Section 4 is hedged with a condition about
the nature of offence and the character of the offender. Section 6 of the Act makes the
provisions applicable in cases where offenders are less than 21 years of age, as
restrictions on imprisonment of offenders have been indicated in the said provision. In
a case involving similar facts, this Court in State of Haryana v. Prem Chand [(1997)
22
Jamal Haq v. State of Tripura, (2006) CA 59 of 2006
23
Aitha Chander Rao v. State of Andhra Pradesh, (1981) CA No. 337 of 1975
24
State of H.P. v. Dharam Pal, (2004) 9 SCC 681 : 2004 SCC (Cri) 1477
25
7 SCC 756: 1997 SCC (Cri) 1176] upheld the judgment of the High Court which
extended the benefit of provisions under Section 4 of the Act. Considering the
peculiar circumstances of the case and taking into account the fact that on the date of
occurrence the accused was less than 21 years old, we feel this is a case where no
interference is called for with the judgment of the High Court, though some of the
conclusions arrived at by the High Court do not have our approval. The appeal fails
and is dismissed.
11. In Mohd. Monir Alam v. State of Bihar, (2010)25 12 SCC 26 : (2011) 1 SCC
(Cri) 293, The matter was taken in appeal by Monir Alam to the High Court. The
High Court modified the conviction from one under Sections 304(II) and 323
simpliciter to one under Sections 304(II)/149 IPC and Section 323 IPC and also took
up the revision filed by the complainant against the acquittal of three of the accused,
namely, Nisar, Uudus and Kammaruddin. The High Court held that the acquittal of
some of these accused was not justified but refused to interfere in revision on the
ground that the proceedings had gone on for several years. The High Court therefore,
in effect, confirmed the judgment of the trial court. The present appeal has been filed
only by Mohd. Monir Alam who has been awarded a sentence of three years' rigorous
imprisonment. We have considered Mr Suri's submissions very carefully. We see
from the documents that the appellant has secured a Doctorate and is presently
employed as a Senior Assistant Professor in the Department of Strategic and Regional
Studies, University of Jammu and that he had secured this appointment in the year
1997. His professional qualifications have also been provided to us which show his
expertise in his speciality and also portray his association with prestigious
organisations worldwide in the field of strategic studies. We are, therefore, of the
opinion that his conduct and attainments after his involvement in this matter justify
his release on probation. We, accordingly, dismiss the appeal but direct that he shall
be released on probation under Section 4 of the Probation of Offenders Act, 1958 on
terms to be settled by the trial court
25
Mohd. Monir Alam v. State of Bihar, (2010) 12 SCC 26 : (2011) 1 SCC (Cri) 293
26
12. In Musa Khan v. State of Maharashtra, (1977)26 1 SCC 733 : 1977 SCC (Cri)
164, Taking A-4 we find that he was a young man of 20 years in 1968 when the
occurrence took place and he is the brother of A-11 and A-12. The only evidence of
his participation in the incident at the Bharat Lodge consists of PW 1 Prakash and PW
16 Vishwanath. So far as PW 16 is concerned his evidence has been rejected as he
was not able to identify the appellant at a test identification parade. Furthermore, in
view of the evidence of PW 16 extracted above, it would appear that he does not
mention A-4 as one of the persons who had taken part in removing the cash box from
the counter. In these circumstances, therefore, A-4 can only be convicted at the most
under Sections 149/425 IPC. As this appellant does not appear to have taken any part
either in the raid which was made at the Engineering College hostel or at the chawl he
can only be responsible for the mischief which was caused at the Bharat Lodge. As
his conviction under Sections 395/149 fails, the appellant can only be convicted under
Sections 149/425 IPC. The other convictions and sentences recorded against him are
set aside. As, however, the appellant was a boy of 20 years, his case clearly falls
within the purview of the Probation of Offenders Act, 1958. The Probation of
Offenders Act is a social legislation which is meant to reform juvenile offenders so as
to prevent them from becoming hardened criminals by providing an educative and
reformative treatment to them by the Government. Unfortunately, though the
provisions of Section 6 of the Probation of Offenders Act are mandatory, ―the Courts
do not appear to make wise use of these provisions which is necessary to protect our
younger generation from becoming professional criminals and, therefore, a menace to
the society. It may be that the appellant A-4 was not dealt with under the provisions of
Section 6 of the Probation of Offenders Act because of the charge under Section 395
IPC but that charge having failed, there is no impediment now in his being dealt with
under the provisions of Section 6 of the Probation of Offenders Act. In these
circumstances, therefore, we would set aside the convictions and sentences imposed
on A-4 Musa Khan and direct that he be released on his entering into a bond with two
sureties of Rs 500 each for a period of one year in order to keep the peace and be of
good behaviour. The appellant will report to the Probation Officer appointed within
26
Musa Khan v. State of Maharashtra, (1977) 1 SCC 733 : 1977 SCC (Cri) 164
27
the jurisdiction of the place where he resides.A-7 Sardar Khan was even younger than
A-4 and was only 15 years on the date of occurrence. He has been identified by PWs
1, 10 and 16. PW 10 Anand Muley has identified him as being present at Shivaji
Hotel, but as no incident of violence took place there A-7 could not be guilty of any
criminal act there. As regards his presence at the Bharat Lodge is concerned, A-7 has
been identified by PWs 1 and 16 as being a member of the mob there. In view of the
evidence of PW 16 Vishwanath as extracted above and having regard to the fact that
no overt act has been attributed against him, nor has it been alleged that he took part
in stealing away of the cash box the charge under Sections 149/495 IPC fails and he
can utmost be convicted under Sections 149/425 IPC and Section 147 IPC. As both
these offences are not punishable with rigorous imprisonment for life, the provisions
of Section 6 of the Probation of Offenders Act will undoubtedly apply and like A-4
the appellant will also have to be dealt with under that section. We therefore set aside
all convictions and sentences imposed on A-7 Sardar Khan and direct that he be
released on his entering into a bond with two sureties of Rs 500 each for a period of
one year in order to keep the peace and be of good behaviour. The appellant will
report to the Probation Officer appointed within the jurisdiction of the place where he
resides. A-9 Mohd. Fasihuddin who was only 20 years of age at the time of
occurrence was identified only by two witnesses, namely, PW 1 Prakash and PW 22
Wamanrao. The courts below have, however, disbelieved PW 22 Wamanrao and so
we are left with only uncorroborated testimony of PW 1 Prakash. The case of this
appellant is also similar to that of A-4 Musa Khan inasmuch as he also had not taken
any part in removal of the cash box from the counter. The only overt act alleged
against him is that he had hit Krishnamurthi with a crow bar as a result of which
Krishnamurthi sustained a simple injury. He has thus committed offences under
Sections 147 and 323 IPC and his case falls within the protection afforded by Section
6 of the Probation of Offenders Act. For these reasons, therefore, the convictions and
sentences imposed on this appellant are set aside and he is directed to be released on
his entering into a bond with two sureties of Rs 500 each for a period of one year in
order to keep the peace and be of good behaviour. The appellant will report to the
Probation Officer appointed within the jurisdiction of the place where he stays.
28
13. Satyabhan Kishore v. State of Bihar, (1972)27 3 SCC 350: 1972 SCC (Cri) 540
at page 352 Act 20 of 1958, was brought into force in the State of Bihar by a
notification bearing No. DPS/118-JL, dated June 4, 1959, as provided by Section 1(3)
of the Act. In Rattan Lal v. Punjab [AIR 1965 SC 444] this Court, after examining
Section 11 of the Act held that the language of that section was comprehensive
enough to enable this Court either to apply Section 6 on its own whenever it was
applicable, or direct the High Court to do so. Section 3 of the Act confers on the Court
discretion in the case of a person found guilty of having committed an offence
punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section
420 of the Penal Code or any offence punishable with imprisonment of not more than
two years or with fine or both under the code or any other law provided there is no
previous conviction proved against such an offender, if the court by which he 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 do so, to
release him after due admonition. Section 4 likewise gives discretion to the Court in
cases where a person is found guilty of an offence provided it is one which is not
punishable with death or imprisonment of life and the court by which such offender is
found guilty is of opinion having regard to the circumstances of the case and the
nature of offence, that it is expedient to release him on probation on good conduct, to
direct that instead of sentencing him to any punishment he should be released on
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 peace and be of good behaviour. Sub-section (2) of Section 4
requires the court to take into consideration the report, if any, of the probation officer
in relation to the case before passing an order under sub-section (1).
14. In Satyabhan Kishore v. State of Bihar, (1972) 3 SCC 350 : 1972 SCC (Cri)
540, Whereas Sections 3 and 4 leave it to the discretion of the court to make an order
as provided therein, Section 6 provides that where a person unders 21 years of age is
found guilty of an offence punishable with imprisonment (but not with imprisonment
for life), the court by which he is found guilty shall not sentence him to imprisonment,
27
Satyabhan Kishore v. State of Bihar, (1972) 3 SCC 350 : 1972 SCC (Cri) 540
29
unless it is satisfied, having regard to the circumstances of the case, including the
nature of the offence, that 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 such offender, it
shall record its reasons for doing so. Under sub-section (2), the court, for the purpose
of satisfying itself whether it would not be desirable to deal with such an offender
under Section 3 or Section 4, shall call for a report from the probation officer and
consider such report, if any, and any other information available to it relating to the
character and physical and mental condition of the offender. Section 6 thus lays down
an injunction, as distinguished from the discretion under Sections 3 and 4, not to
impose a sentence of imprisonment upon an offender of the class covered by the
section unless for reasons to be recorded by it the court finds it undesirable to proceed
with him under Section 3 or Section 4. It is not in dispute that Appellants 1 and 2
were at the date of offences, of which they have been found guilty, and at the time of
the trial, below the age of 21 years. The offences of which they have been found
guilty being punishable under Sections 323 and 448 of the Penal Code are also not
offences punishable with imprisonment for life. There is, therefore, no doubt that
Section 6 applies to the present case. Nothing is shown to us which would lead us to
think that it is not desirable to apply the provisions of Sections 3 and 4 of the Act to
the appellants. We were shown the reports of the relevant probation officer in respect
of both the appellants which appear to have been called for during the trial before the
trial court. Neither of the two reports contains any matter which would lead us to
believe that it would not be expedient to apply Section 3 or Section 4. We had, no
doubt, disallowed an application by Appellant 1 and the said Guru Prasad to
compound the case on the ground that the compounding of such offences in the
circumstances in which they were committed was not commensurate with the absolute
necessity of maintenance of discipline within the university campus. But that is quite
different from complying with the legislative policy and injunction contained in
Section 6 of the Act. We, therefore, partially allow the appeal and set aside the order
of sentence passed by the High Court against the two appellants and as was recently
done in Abdul Qayum v. Bihar [AIR 1972 SC 214 : (1972) 1 SCC 103] directed that
the two appellants be released under Section 4 of the Act upon their entering into
30
bonds and their respective fathers also giving surety bonds in the sum of Rs 500 each,
to appear and receive sentence' by the High Court whenever called upon to do so
within a period of one year from the date of this order and to keep peace and be of
good behaviour during that period. We direct the High Court to take through an
officer authorized by it in this behalf the said bonds and the said surety bonds from
the respective fathers of the appellants in the manner stated above.
15. In Ramji Missar v. State of Bihar, 1963 Supp (2) SCR 745 : AIR 1963 SC 1088
: (1963)28 2 Cri LJ 173, The Assistant Sessions Judge held the prosecution case as
alleged established against both the accused. It is now necessary to mention that
according to the Sessions Judge Ramji was 21 years old and Basist 19. Section 6 of
the Act enacts.
―6. (1) 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 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 or Section 4 with an offender referred to in sub-section (1), 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 of its
provisions to Basist who was found guilty of an offence punishable with
imprisonment for life (both Sections 307 and 326 of the Indian Penal Code). He
accordingly sentenced Basist to undergo rigorous imprisonment for six years under
Section 307 of the Indian Penal Code and to four years under Section 326 of the
Indian Penal Code, the sentences to run concurrently. As regards Ramji, the elder
28
Ramji Missar v. State of Bihar, 1963 Supp (2) SCR 745 : AIR 1963 SC 1088 : (1963) 2 Cri LJ 173
31
brother he considered it inappropriate afford to him the benefit of this provision and
recorded 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 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 Section 32 of the Indian Penal Code. As regards Basist also, it was urged
before the High Court that in view of the alteration in the finding recorded as regards
his guilt, the beneficial provisions of Section 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 Section 11 of the Act reading:
―11. (1) 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 passes 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.
(4) When an order has 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
32
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 Section 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 Section 11. In view of the fact that the court
below has already dealt with 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 sentence of imprisonment as already mentioned. It is the

correctness of these orders refusing to apply the provisions of Section 6 of the Act to
the cases of the appellants that is raised for consideration in this appeal.
The first question would therefore be to ascertain whether the jurisdiction or powers
envisaged by Section 6(1) are within the scope of the jurisdiction conferred by
Section 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 are:
(1) Under Section 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 Section 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 Section 3 or Section 4 like those
for which provision is made by Sections 5 & 9. So far as Section 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
33
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 and Allahabad
adopted to construe the words in Section 562 of the Code, the High Court, when
hearing an appeal, would be subject to the provisions of Section 6.
It is however possible that the words in Section 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 Sections 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 Section 11 be the trial courts or exercising
appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction
conferred on Courts not only under Sections 3 and 4 and the consequential provisions
but also under Section 6.
Accepting therefore the interpretation of Section 11(1) which was urged by counsel
for the respondent, that the courts mentioned in it could pass orders under Sections 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.
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 Section 11.
34
Though the word ―may‖ might connote merely an enabling or premissive power in the
sense of the usual phrase ―it shall be lawful‖, it is also capable of being construed as
referring to a compellable 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 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 Section 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
Section 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 basis 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, Section 4 empowers a court to release certain offenders on probation of
good conduct. The criteria laid down there 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
35
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 of Section 11(1) to hold that the High Court etc.
could pass orders in appeal or revision without reference to these standards, tests or
guidance which the statute has prescribed for the primary courts? We are clearly of
the opinion that this is capable only of a negative answer and that the power conferred
on appellate or other courts by Section 11(1) was of the same nature and
characteristics and subject to the same criteria and limitations as that conferred on the
courts under Sections 3 & 4. We are confirmed in this view by the terms of Section
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 Section 6. It cannot, for instance, be
suggested that the High Court could in its discretion exercise the power under Section
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 imprisonment for life. These limitations
on the exercise of the discretion have surely to be gathered only from the terms of
Section 6(1). If Section 6(1) applies 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 Section 6(1) applies to guide or condition the
jurisdiction of the High Court under Section 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 Section 11 and that its
discretion and powers are not to be governed by the terms of Section 6(1).
The question next to be considered is the result of applying the terms of Section 6(1)
to a person in the position of Basist. It was not 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 Section 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 insofar as it relates to the second appellant — Basist — must therefore
36
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 Section 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, when Section 5 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 Section 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 Basist was admittedly below 21 years of age at
the time of the judgment of the Assistant Sessions Judge, Section 6 was not
inapplicable to him even assuming he was above that age by the date of the order in
appeal.
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, when Section 5 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 Section 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 Basist was admittedly below 21 years of age at
the time of the judgment of the Assistant Sessions Judge, Section 6 was not
inapplicable to him even assuming he was above that age by the date of the order in
appeal.
37
16. In Prithvi Raj v. Kamlesh Kumar, (2004)29 8 SCC 303 : 2005 SCC (Cri) 347, In
order to appreciate the issue involved it would be proper to quote Section 11 so far
relevant. The provisions read as:
“11. Courts competent to make order under the Act, appeal and revision and powers
of courts in appeal and revision.—
(1) 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 passes 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.
(4) When an order has 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:
29
Prithvi Raj v. Kamlesh Kumar, (2004) 8 SCC 303 : 2005 SCC (Cri) 347
38
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 first question is whether a de facto complainant can prefer an appeal under sub-
section (2) of Section 11. The provision only speaks of the forum in which such
appeal is to be decoded. It does not specifically provide as to who can prefer an
appeal. There is a divergence in view as regards maintainability of appeal by the
complainant. The Orissa and Patna High Courts have held that it was maintainable at
the instance of the de facto complainant. (See Rajkishore Jena v. Raja [AIR 1971
Ori 193] and Baidyanath Prasad v. Awadhesh Singh [AIR 1964 Pat 358: (1964) 2
Cri LJ 176]. It was held by the Patna High Court that the complainant can file
revision against the order of acquittal under the Code of Criminal Procedure, 1973 (in
short ―the Code‖). Consequently, it was observed that the complainant has interest in
conviction and sentence. The Orissa High Court dismissed the revision petition filed
by the complainant holding that it had right of appeal to the Sessions Court under
Section 11(2) of the Act. The Calcutta High Court in Parmal Ghosh v. State of W.B.
[1984 Cri LJ 1302: (1984) 1 CHN 329 (Cal)] has taken a different view and held
that the State has a right to be heard at the time of imposition of sentence but not the
complainant. The role of the State Government is to ensure that the accused person is
punished for the offence committed and adequate sentence is imposed. If the State is
of the view that the sentence is inadequate it can move the higher court as provided in
the Code.
It is to be noted that sub-section (2) of Section 11 commences with the expression

―notwithstanding anything contained in the Code‖ and provides in unqualified terms
that ―an appeal shall lie to the court‖. Under the Code the appeal proceedings are
concerned only with orders of acquittal or conviction. While the provisions in Section
11(2) of the Act deal with something distinct from the fact of conviction or acquittal.
The appeal under Section 11(2) of the Act is not against acquittal or conviction but
the propriety of the order passed under Section 3 or Section 4 of the Act. The
intention of the legislature apparently is to confer such a right both on the prosecution
39
and the accused. The interest of the complainant is not totally lost sight of by the
legislature. It is statutorily provided that revision application can be filed by the
complainant against an order of acquittal. That being so, the complainant can prefer
an appeal under Section 11(2) of the Act questioning propriety of the order passed
under Section 3 or 4 of the Act. The view expressed by the Patna and the Orissa High
Courts is the correct view and that of the Calcutta High Court is not correct. The said
view is nullified.
That brings us to the pivotal issue as to the scope and limit of interference in an
appeal under Section 11(2) of the Act. Section 11(4) makes the position clear that
only the propriety of the order passed under Section 3 or 4 in respect of offenders can
be dealt with by the appellate court or the High Court, as the case may be. The
appellate court or the High Court exercising revisional power may set aside such
order, meaning passed either under Section 3 or Section 4 and in lieu thereof pass
sentence on such offender. Obviously, the sentence can be imposed only in respect of
the offence relating to which the order under Section 3 or Section 4 of the Act has
been passed. There is no scope of altering nature of offence and for directing that the
accused shall be convicted for another offence. The High Court was, therefore, not
justified in directing that the conviction of the appellants shall be under Section 326
IPC. We find that the trial court had given adequate reasons for passing the order
under Section 4 of the Act. That being so, the High Court was not justified to interfere
with the benefit extended by the trial court under the Act.
17. John Stuart Mill in Locksley Hall said :

―Knowledge comes, but wisdom lingers, and I linger on the shore. And
the individual withers, and the world is more and more.That there is
always a sad lack of individual effort, and of men who feel their own
responsibility as intellectual and moral beings, is too true.No act is
entirely self-regarding; no moral quality is limited in its action to the
sphere of its possessor‘s own history and doings. Idleness, Ignorance,
Impurity, recklessness, are almost as mischievous to a man‘s
connexions as to himself. All vices are, more or less, crimes; and
society has an interest, over and above that of mere self-defence, in the
conduct of every one of its members. If by an arrangement of society,
40
the purity, and holiness, and best interests of the units composing it can
be promoted, such an arrangement becomes lawful, whether it
infringes upon the ―self-regarding‖ province or not. The feeling of
responsibility to society, though a needless restraint upon the man of
high character and noble instincts, is a great safeguard to the average
man. We cannot, therefore, afford to weaken it.‖
Tomorrow I want ―Every reader of a newspaper, to the farthest end of the earth,
would have believed and remembered one thing only- that at the critical juncture
which was to decide whether the man should be jailed with increased vigour or [be]
trodden out- at the moment of conflict between the good and the evil spirit – at the
dawn of a hope that the demon might not at least be chained and cast into the pit,
England stepped in, and, for the sake of cotton, made Satan victorious.‖
18. Perhaps the most useful definition of restorative justice is that suggested by
Marshall (1999) : ‗Restorative justice is a process whereby parties with a stake in a
specific offence resolve collectively how to deal with the aftermath of the offence and
its implification for the future.‘
19. Key aims and outcomes of restorative justice are:-
 Victim satisfaction – reducing victims‘ fear and ensuring that they feel ‗paid
back‘ for the harm done by them
 Engagement with the young person – to ensure that they are aware of the
consequences of their actions, have the opportunity to make reparation, and
agree a plan for their restoration in the community
 Creation of community capital – increasing confidence in the criminal justice
system among the public.
20 The most well-known practice models are:

 Victim-offender mediation (direct or indirectly)
 Restorative conferencing
 Family group conferencing
 Community panel meetings
41
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities
cited, it is humbly requested that this Honourable Court may be pleased to adjudge
and declare:
1. The following Review Petition filed by the petitioners under Art. 137 of the
constitution is maintainable in Hon‘ble Court.
2. Hold that the previous judgment at the criminal appellate stage was incorrect
and was based on wrong appreciation of law.
And any such order, other order that it deems fit in the interest of justice, equity and
good conscience.
And for this, petitioner as in duty bound, shall humbly pray.
COUNSEL ON BEHALF OF THE PETITIONER
42

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IN THE SUPREME COURT OF

IN THE MATTER OF:

NCT Delhi & Others Respondent

REVIEW PETITION (Crl.) No. 2611 of 2018

UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

Humbly submitted by:

MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS ...............................................................................................2

LIST OF ABBREVIATIONS ........................................................................................3

STATEMENT OF JURIDICTION ................................................................................6

STATEMENT OF FACTS ............................................................................................7

STATEMENT OF ISSUES ...........................................................................................8

SUMMARY OF ARGUMENTS ...................................................................................9

ARGUMENTS ADVANCED .....................................................................................10

1. WHETHER THE REVIEW PETITION FILED BY APPLICANT IN THE

2. WHETHER THE INTERPRETATION OF THE PROBATION OF OFFENDERS

LANGUAGE THEREOF AT THE CRIMNAL APPEAL STAGE?.........15

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

1. Lily Thomas v. Union of India (2000) 6 SCC 224

2. Thungabhagra Industries Ltd. V. Govt. of A.P. (1964) 5 SCR 1974

3. Commissioner of Sales Tax v. Pine Chemicals Ltd. (1995) 1 SCC 58

4. Post Graduate Institute of Medical Education and Research, Chandigarh v.

5. Common Cause v. Union of India (1999) 6 SCC 667

6. H.C. Puttaswamy v. Hon’ Chief justice of Karnataka, High Court Bangalore

7. S. Nagaraj v. State of Karnataka (1993) Supp (4) SCC 595

9. Sutheendraraja @ Suthenthira Raja @ Santhan v. State through DSP/CBI,

10. Satvir Singh v. Baldeva (1996) 8 SCC 593

11. Simranjit Singh Mann v. Union of India (1992) 4 SCC 653

12. State of Karnataka v. T.R. Dhananajaya (1995) 6 SCC 254

13. Savita Kumar (Ms) v. Union of India (1993) 2 SCC 357

14. Independent Medico Legal Unit v. Attorney General of the Republic of

19. Jamal Haq v. State of Tripura, (2006) CA 59 of 2006

MEMORIAL ON BEHALF OF THE PETITIONER

The Juvenile Justice Act, 2000

The Juvenile Justice (Care and Protection of Children) Act, 2015

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

5. Hence the review petition by appellant.

MEMORIAL ON BEHALF OF THE PETITIONER

1. Whether the Review Petition is maintainable in the Hon’ble Supreme

2. Whether the interpretation of The Probation of Offenders Act 1958

MEMORIAL ON BEHALF OF THE PETITIONER

1. THAT the Review Petition is maintainable in the Hon’ble Supreme Court of

MEMORIAL ON BEHALF OF THE PETITIONER

Whether the Review Petition is maintainable in the Supreme

1.1 REVIEW PETITION FILED BY THE PETITIONER IS MAINTAINABLE

MEMORIAL ON BEHALF OF THE PETITIONER

7. In H.C. Puttaswamy v. Hon’ Chief justice of Karnataka, High Court

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

Whether the interpretation of The Probation of Offenders Act 1958 was

1. In Independent Medico Legal Unit v. Attorney General of the Republic of

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER