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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1218 OF 2016 (Arising out of S.L.P. (Crl) No. 6104 of 2014)

Mohd. Hashim                                     … Appellant

                                          VERSUS

State of UP & Ors.                           …Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Respondent Nos. 2 to 10 were prosecuted for the offences

punishable under Sections 498-A and 323 of the Indian Penal

Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act,

1961 (for short, 'the 1961 Act').  The respondent Nos.2 and 3

were  convicted  under  Section  498-A  IPC  and  sentenced  to

undergo rigorous imprisonment for two years and to pay a fine

of  Rs.1,000/-  (Rupees  one  thousand  only)  each  with  the

default clause.  The other accused, i.e., respondent nos.4 to

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10 were convicted for the offence punishable under Section

498-A  of  the  IPC  and  sentenced  to  undergo  simple

imprisonment  of  six  months  and  pay  a  fine  of  Rs.1,000/-

(Rupees one thousand only) each with the default clause.  All

the accused persons were convicted under Section 323 of the

IPC and Section 4 of the  1961 Act and sentenced to undergo

rigorous imprisonment for six months on the first count and

for a period of one year on the second score.  They were also

sentenced  to  pay  fine  with  the  stipulation  of  the  default

clause.    

3. The respondents challenged the judgment of conviction

and  order  of  sentence  before  the  learned  Sessions  Judge,

Unnao, U.P. in Criminal Appeal No.55 of 2013 who, in course

of hearing, taking note of the fact that the counsel appearing

for the appellants had abandoned the challenge pertaining to

the conviction but only confined the argument seeking benefit

under Section 4 of the Probation of Offenders Act, 1958 (for

short, 'the PO Act'), extended the benefit as prayed for.

4. Being grieved by the aforesaid judgment of the learned

appellate  Judge,  the  informant  preferred  Criminal  Revision

No.252  of  2013  before  the  High  Court.  In  its  assail,  the

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counsel  for  the  informant   placed  reliance  on  Shyam Lal

Verma vs.  Central  Bureau  of  Investigation1, State

Through SP, New Delhi vs. Ratan Lal Arora2,  and  State

represented by Inspector of Police, Pudukottai, T.N. vs. A.

Parthiban3 to buttress the submission that the benefit under

Section 4 of the PO Act could not have been extended to the

convicts regard being had to the nature of the offences and

the  punishment  provided  for  the  same.   The  High  Court

repelling the argument concurred with the opinion expressed

by the learned Sessions Judge.

5. We have heard Mr.  Ashutosh Jha,  learned counsel  for

the appellant,  Ms. Pragati  Neekhra,  learned counsel for the

State  and  Ms.  Rashmi  Singh,  learned  counsel  for  the

respondents.  As the controversy related to the Probation of

Offenders Act, we have also heard Mr. Ranjit Kumar, learned

Solicitor  General  of  India  and  Ms.  Pinky  Anand,  learned

Additional Solicitor General for the Union of India.

6. There is no dispute over the fact that the respondents

were convicted as has been stated earlier.   The question is

whether the approach of the learned appellate Judge which

1  (2014) 15 SCC 340 2  (2004) 4 SCC 590 3  (2006) 11 SCC 473

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have been concurred by the High Court is legally sustainable.

7. In this context, it is pertinent to appreciate the scheme of

the PO Act.   Section 3 of  the PO Act confers power on the

Court to release certain offenders after admonition.  The said

provision reads as follows:-

“3. Power of  court  to release certain offenders after  admonition.—When  any  person  is  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 Indian Penal Code, (45  of  1860)  or  any  offence  punishable  with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person 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 so to do, then, notwithstanding anything contained  in  any  other  law for  the  time  being  in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.”

8. Section 4 of the PO Act deals with the power of Court to

release certain offenders on probation on good conduct.  The

said provision is as under:-

“4. Power of court to release certain offenders on probation of good conduct.— (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of

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We may note here that the appellate court has exercised

the power under Section 4 of the PO Act.  

10. It is submitted by the learned counsel for the appellant

that as the respondents were convicted under Section 498-A

of IPC and Section 4 of the 1961 Act, the respondents could

not  have  been  conferred  the  benefit  of  probation  on  good

conduct, for Section 4 of the 1961 Act prescribes a minimum

sentence.  Additionally, it is also canvassed by him that even

if  the  said  provision  is  applicable,  the  Court  has  not

considered the nature of offences and other requisite aspects

to extend the benefit under the said provision.    

11. We  shall  deal  with  the  first  aspect,  that  is,  whether

Section 4 of  the 1961 Act  prescribes a minimum sentence,

first.  In Shyam Lal Verma (supra), a two-Judge Bench, after

referring to Ratan Lal Arora (supra),  has held thus:-

“It  is  not  in dispute that  the issue raised in this appeal has been considered by this Court in  State Through  SP,  New  Delhi  Versus  Ratan  lal  Arora (supra) wherein in similar circumstances, this Court held that since Section 7 as well as Section 13 of the  Prevention  of  Corruption  Act  provide  for  a minimum  sentence  of  six  months  and  one  year respectively in addition to the maximum sentences as well as imposition of fine, in such circumstances claim  for  granting   relief  under  the  Probation  of Offenders Act is not permissible. In other words, in

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cases  where  a  specific  provision  prescribed  a minimum sentence, the provisions of the Probation Act  cannot  be  invoked.  Similar  view  has  been expressed  in    State  Represented  by  Inspector  of Police, Pudukottai, T.N. Vs. A. Parthiban   (supra).”

[Emphasis added]

12. In  this  regard,  the  learned  counsel  appearing  for  the

Union of  India has commended us to a three-Judge Bench

Decision in Superintendent, Central Excise, Bangalore vs.

Bahubali4 wherein  the  Court  was  dealing  with  the  case

where the respondent was convicted  by the High Court under

Rule  126-P(2)(ii)  of  the  Defence  of  India  Rules  which

prescribes a minimum sentence of six months.  Be it stated,

the High Court had reversed the judgment of acquittal to one

of  conviction  but  directed  that  the  respondent  therein  be

released on probation of  good conduct  under Sections 3,  4

and 6 of the PO Act.  Dealing with the applicability of the PO

Act, the Court scanned the anatomy of the Defence of India

Rules and the provisions of the PO Act and opined thus:-

“…  It  would  also  be  seen  that  Section  6  of  the Probation of Offenders Act, 1958 puts a restriction on the power of the court to award imprisonment by enjoining on it  not to sentence an offender to imprisonment if  he is under 21 years of  age and

4  (1979) 2 SCC 279

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has committed an offence punishable with impris- onment but not with imprisonment for life except where it is satisfied that having regard to the cir- cumstances of the case including the nature of the offence and character of the offender it would not be desirable to deal with him under Sections 3 and 4 of the Probation of Offenders Act, 1958. The in- compatibility  between Sections 3,  4 and 6 of  the Probation of Offenders Act, 1958 and Rule 126-P(2) (ii) of the DI Rules is, therefore, patent and does not require an elaborate discussion. The view that the aforesaid provisions of the Probation of Offenders Act,  1958 are inconsistent  with the provisions of the DI Rules which cast an obligation on the court to  impose  a  minimum sentence  of  imprisonment and fine is reinforced by Section 18 of the Proba- tion of Offenders Act, 1958 which saves the provi- sions of (1) Section 31 of the Reformatory School Act, 1897 (Act 8 of 1897), (2) sub-section (2) of Sec- tion 5  of  the  Prevention of  Corruption Act,  1947 (Act  2  of  1947),  (3)  the  Suppression  of  Immoral Traffic in Women and Girls Act, 1956 (Act 104 of 1956) and (4) of any law in force in any State relat- ing to juvenile offenders or borstal schools, which prescribe a minimum sentence.”

After  so  stating,  the  Court  further  proceeded  to  state

that:-  

“The provisions of  the Probation of  Offenders Act, 1958, being, therefore, obviously inconsistent with Rule 126-P(2)(ii)  of  the DI  Rules under  which the minimum penalty of six months’ imprisonment and fine  has  to  be  imposed,  the  former  have  to  yield place  to  the  latter  in  view  of  Section  43  of  the Defence of India Act, 1962 which is later than the Probation of  Offenders Act,  1958 and embodies a non  obstante  clause  clearly  overriding  the provisions  of  the  enactments  which  contain inconsistent  provisions  including  those  of  the Probation  of  Offenders  Act  to  the  extent  of

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inconsistency. The result  is that the provisions of rules made and issued under the Defence of India Act  prescribing  minimum  punishment  which  are manifestly  inconsistent  with  the  aforesaid  provi- sions of the Probation of Offenders Act are put on par with the provisions of the enactments specified therein so as to exclude them from applicability of the Probation of Offenders Act.”   

13. It is profitable to state here that the Court referred to the

decision  in  Arvind  Mohan  Sinha  vs.  Amulya  Kumar

Biswas5 wherein it has been held thus:-  

“The broad principle that punishment must be pro- portioned to the offence is or ought to be of univer- sal application save where the statute bars the exer- cise of judicial discretion either in awarding punish- ment or in releasing an offender on probation in lieu of sentencing him forthwith.”  

 14. At this juncture,  we must state with promptitude that

the three-Judge Bench in  Bahubali (supra) opined that the

applicability of the PO Act as has been held in Arvind Mohan

Sinha (supra)  could  not  be  taken  aid  of  inasmuch  as

attention of the Court was not seemed to have been invited in

the said case to Section 43 of the Defence of India Act, 1962

which contains a non obstante clause.

15. The three-Judge Bench while adverting to the concept of

“minimum  sentence”,  relied  on  the  observations  made  in

5  (1974) 4 SCC 222

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Bahubali (supra) which we have reproduced hereinabove, and

opined that:-  

“The  above  observations  also  clearly  show  that where there is a statute which bars the exercise of judicial  discretion in  the  matter  of  award of  sen- tence, the Probation of Offenders Act will  have no application or relevance. As Rule 126-P(2)(ii) of the DI Rules manifestly bars the exercise of judicial dis- cretion in awarding punishment or in releasing an offender on probation in lieu of sentencing him by laying down a minimum sentence of imprisonment, it has to prevail over the aforesaid provisions of the Probation of Offenders Act, 1958 in view of Section 43 of the Defence of India Act, 1962 which is later than  the  Probation  of  Offenders  Act  and  has  an overriding effect.”

16. In Ratan Lal Arora (supra) the learned single Judge of

the  Delhi  High  Court  while  upholding  conviction  of  the

accused under the Prevention of Corruption Act, 1988 further

held him to be entitled to the benefits of Section 360 of the

Code of Criminal Code.   The Court adverted to Section 7 and

Section  13 of the Prevention of Corruption Act which provide

for minimum sentence of six months and one year respectively

in addition to the maximum sentence as well as imposition of

fine.  Reference was made to Section 28 that stipulates that

the provisions of  the Act shall  be in addition to and not in

derogation  of  any  other  law  for  the  time  being  in  force.

Reliance was placed on the decision in Bahubali (supra) while

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interpreting the said provision and relying on the authority in

Bahubali (supra)  the  Court  ruled  that  Section  28  of  the

Prevention of Corruption Act had a tenor of Section 43 of the

Defence of India Act. In that context, it observed:-  

“Unlike the provisions contained in Section 5(2) pro- viso of the old Act providing for imposition of a sen- tence lesser than the minimum sentence of one year therein for any “special reasons” to be recorded in writing, the Act did not carry any such power to en- able the court concerned to show any leniency be- low  the  minimum  sentence  stipulated.  Conse- quently, the learned Single Judge in the High Court committed a grave error of law in extending the ben- efit of probation even under the Code.”

17. The  said  principle  has  been  reiterated  in  State

represented by Inspector of Police, Pudukottai, T.N. vs. A.

Parthiban6.  

18. 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

Section  323  and  498-A,  it  is  quite  clear  that  there  is  no

prescription of  minimum sentence.  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:-  

6  (2006) 11 SC 473

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“4. Penalty for demanding dowry.—If any person demands, directly or indirectly,  from the parents or  other  relatives  or  guardian  of  a  bride  or bridegroom,  as  the  case  may  be,  any  dowry,  he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:  

   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.”

19. 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 (supra)

and Ratan Lal Arora (supra). 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

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reasons to be recorded in writing, 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

recognized and accepted for the PO Act.  

20. Presently,  we  shall  advert  to  the  second  plank  of  the

submission advanced by the learned counsel for the appellant.

In Rattan Lal vs. State of Punjab7.  Subba Rao, J., speaking

for the majority, opined thus:-

“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

7   AIR 1965 SC 444

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below 21 years of age and those above that age, and offenders who are guilty of having committed an of- fence 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 re- lease 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 of- fenders below the age of 21 years an injunction is issued to the court not to sentence them to impris- onment 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.

21. 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 Prakash vs.

State of Himachal Pradesh8, 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 distinguishes offenders below 21 years of age and those

8   AIR 1973 SC 780

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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:-

“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.  (Ratan  Lal  vs.  State  of  Punjab (supra) and Ramji Missir vs. the State of Bihar (AIR 1963 SC 1088).”

22. Be it noted, in the said case, keeping in view the offence

under  the  Prevention  of  Food  Adulteration  Act,  1954,  the

Court declined to confer the benefit under Section 4 of the PO

Act.

23. 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 vs. State of Haryana and others9

9  AIR 2000 SC 1677

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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 as been vested in the court to decide

when and how the court should form such opinion, yet the

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:-  

“9. The word “expedient” had been thoughtfully em- ployed 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. Pabri10 a three-Judge Bench of this Court has considered the  word  “expedient”.  Learned  Judges  have  ob- served in para 21 thus:   

“Again,  the  word  ‘expedient’  used  in  this provisions,  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,

10  AIR 1974 SC 2233

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proper and suitable to the circumstances of the case’. In another shade, it means a device ‘char- acterised by mere utility  rather than principle, conducive  to  special  advantage  rather  than  to what is universally right’ (see Webster’s New In- ternational Dictionary).”

10. 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 includ- ing 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 speci- fied object that the offender can be released on pro- bation of good conduct.”   

24. We have highlighted these aspects for the guidance of the

appellate  court  as  it  has  exercised  the  jurisdiction  in  a

perfunctory manner and we are obligated to say that the High

Court should have been well advised to rectify the error.

 25. At  this  juncture,  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 has to be guided by

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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.

26. Resultantly,  the  appeal  is  allowed,  the  judgment  and

order passed by the High Court and the appellate court are set

aside  and the  matter  is  remitted to  the  appellate  court  for

disposal in accordance with law.

…...........................J .

(Dipak Misra)

..............................J.  (Amitava Roy) New Delhi; November 28, 2016.