Ramji Missir and Another vs The State of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 144 of 1962

Decision Date: 6 December 1962

Coram: N. Rajagopala Ayyangar, Syed Jaffer Imam, J.R. Mudholkar

In the matter titled Ramji Missir and Another versus the State of Bihar, the judgment was rendered on 6 December 1962 by the Supreme Court of India. The opinion was authored by Justice N. Rajagopala Ayyangar, who was joined by Justices Syed Jaffer Imam and J.R. Mudholkar. The parties were identified as the petitioners, Ramji Missir and another individual, and the respondent, the State of Bihar. The decision bears the citation 1963 AIR 1088 and also appears in the Supreme Court Reporter Supplement 2 at page 745. Subsequent citations of this judgment include references in 1965 Supreme Court reports at pages 444 (issues 7, 24, 25) and 843 (issue 11), as well as entries in the reports of 1972 and 1973 concerning various issues of law.

The facts of the case involved two brothers, referred to in the judgment as R and B, who were prosecuted for assaulting a third person, designated S, resulting in grievous injuries to S. Both brothers were convicted by the Assistant Sessions Judge. B was found guilty under sections 307 and 326 of the Indian Penal Code, while R was convicted under section 324 of the same Code. The trial court imposed separate terms of imprisonment on each appellant. The Probation of Offenders Act, 1958, particularly section 6(1), provides that when any person under twenty‑one years of age is found guilty of an offence punishable with imprisonment, but not with life imprisonment, the court shall not sentence that person to imprisonment but may release him on probation.

At the time of sentencing, B was nineteen years old; however, section 6(1) was held not to apply to him because his conviction was for an offence punishable with life imprisonment. R, the elder brother, was twenty‑one years old. The trial judge declined to apply the benefit of section 6(1) to R on the ground that the assault had been pre‑meditated, and therefore deemed it inappropriate to grant probation.

Both appellants appealed their convictions. The High Court set aside B’s convictions under sections 307 and 326 and instead recorded a conviction under section 324, imposing a two‑year term of imprisonment. Regarding R, the High Court upheld the conviction under section 324 but reduced the sentence from two years to nine months. The High Court then considered the applicability of the Probation of Offenders Act to the appellants. It held that section 6(1) could not be applied to R because, although he might have been under twenty‑one at the time of the offence, he was not under twenty‑one when the Sessions Judge delivered the judgment. The Court also observed that, although section 11 of the Act empowers a High Court to make an order in favour of a younger offender, such power is discretionary. Since the lower court had already adjudicated the matters, the High Court found it inappropriate to intervene further under the provisions of the Act concerning B.

In this case, the Court articulated several principles concerning the interpretation of sections 6 and 11 of the Probation of Offenders Act, 1958. First, the Court held that the “age” mentioned in section 6(1) refers to the age of the offender at the moment when the court must decide between imposing a term of imprisonment or applying the special provisions of section 6(1). Second, the Court held that the courts named in section 11 of the Act, whether they are trial courts or courts exercising appellate or revisional jurisdiction, are empowered to exercise the jurisdiction granted not only under sections 3 and 4 and the consequent sequential provisions, but also under section 6. Third, the Court held that the power conferred on appellate or other courts by section 11(1) is of the same nature, possesses the same characteristics, and is subject to the same criteria and limitations as the power conferred on courts under sections 3 and 4. Fourth, the Court held that the provisions of section 6(1) restrict the absolute and unfettered discretion implied by the word “may” in section 11(1), and that the entirety of section 6(1) must be applied to guide and condition the jurisdiction of the High Court under section 11(1). Finally, the Court held that the crucial date for reckoning the relevant age, when an appellate court modifies the judgment of the trial judge and section 6 becomes applicable to a person, is the date on which the trial court originally had to deal with the offender.

The judgment was rendered in Criminal Appeal No. 144 of 1962, filed by special leave from a decision of the Patna High Court dated 10 May 1962 in Criminal Appeal No. 339 of 1961. The appeal was heard by Justice AYYANGAR, J., and the special leave had been granted on 7 September 1962. The matter before the Court concerned the correct construction of sections 6 and 11 of the Probation of Offenders Act, 1958, hereinafter referred to as “the Act.” The appellants were two brothers, Ramji and Basist. It was alleged that the brothers assaulted a person named Sidhnath, identified as PW 2, causing him grievous injuries. Basist, the younger brother, was prosecuted before the Assistant Sessions Judge at Arrah for an offence under section 307 of the Indian Penal Code because the blow he dealt was described as a “bhala‑blow” inflicted under circumstances such that, had death resulted, it would have constituted murder. Since the injury actually caused was grievous, Basist was additionally charged under section 326 of the Indian Penal Code for causing grievous hurt. The elder brother, Ramji, who also caused hurt to the victim, was charged under section 324 of the Indian Penal Code. The Assistant Sessions Judge allowed the prosecution’s case to proceed.

The Sessions Judge recorded that the elder accused, Ramji, was twenty‑one years old at the time of trial, while the younger accused, Basist, was nineteen years old. The Judge then referred to Section 6 of the Probation of Offenders Act, 1958, which provides that “(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, 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 subsection (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 Judge observed that the terms of this provision could not be applied to Basist because Basist had been found guilty of offences punishable with imprisonment for life, namely sections 307 and 326 of the Indian Penal Code. Accordingly, Basist was sentenced to rigorous imprisonment for six years under section 307 and to four years under section 326, with both sentences to run concurrently. Turning to Ramji, the Judge decided that the benefit of Section 6 should not be extended to him. In his reasons, the Judge stated, “So far as accused Ramji is concerned I am not inclined to take recourse to the provisions of the Probation of Offenders Act, 1958, because the act of assault on the informant on the part of this accused is pre‑mediated.” Consequently, Ramji received a sentence of rigorous imprisonment for two years under section 324 of the Indian Penal Code. Both accused persons appealed the decision to the High Court. The learned Single Judge hearing the appeal examined the evidence and the circumstances under which the injury was inflicted. He concluded that Basist had not intended to cause grievous hurt to the second witness, and therefore set aside the convictions under sections 307 and 326. In their place, the Judge recorded a finding of guilt for the offence under section 324 and imposed a sentence of rigorous imprisonment for two years. Regarding Ramji, the High Court upheld the conviction under section 324, but, after being informed by counsel that Ramji was suffering from tuberculosis, the Judge reduced the term of imprisonment from two years to nine months.

In the appeal before the High Court, counsel contended that the reasons provided by the Assistant Sessions judge for refusing to apply the provisions of section 6 of the Probation of Offenders Act to the accused Ramji were not proper. The High Court rejected that contention. The Court held that section 6 was inapplicable to Ramji because, although he might have been “under 21 Years of age” on the date of the offence, namely 17 October 1960, he was not a person under twenty‑one years of age on 24 May 1961, the date on which the Sessions judge actually found him guilty and imposed a term of imprisonment. The Court emphasized that the decisive date for determining the offender’s age was not the date of the offence but the date on which the judgment of guilt and the sentence were delivered.

The same appeal also raised a submission on behalf of Basist. Counsel argued that, because the trial court’s finding of guilt had been altered, the beneficial provisions of section 6 of the Act should now apply to him. The High Court examined that argument and explained that the Court could make the same order that the trial court might have made under the Act, relying on the authority given in section 11 of the Probation of Offenders Act. Section 11 reads in full: “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 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…” The High Court concluded that, although it possessed the power conferred by section 11, the exercise of that power remained discretionary, and it chose not to intervene in the orders already passed by the lower court.

The Court observed that it could have imposed a punishment that was harsher than the one imposed by the trial Court that had found the offender guilty. However, the learned judge chose not to do so and stated: “No doubt, under the provisions of s. 11 of the Probation of Offenders Act this Court is competent to make an order, but it is entirely discretionary for this Court to exercise the power conferred on it under s. II. 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.” The judge therefore confirmed the imprisonment sentence that had already been passed. The issue now before the appellate Court was whether the refusal to apply the provisions of s. 6 of the Act to the appellants was correct. Turning first to the case of Ramji, the elder brother, the Court agreed fully with the High Court’s interpretation of s. 6. It held that the offender’s age was relevant not for determining guilt but solely for deciding the appropriate punishment for the offence for which he had been proven guilty on the evidence. The purpose of the Act was to prevent young offenders from becoming hardened criminals by exposing them to seasoned prisoners in prison, and to seek their possible reformation instead of imposing the ordinary penalty for the crime. Consequently, the reference to “age” in the opening words of s. 6(1) must be understood as the age of the person at the moment the court is required to decide between the two alternatives granted by the Act, namely ordering imprisonment or applying the provisions of s. 6(1). The High Court had found that Ramji was not under twenty‑one years of age on 24 May 1961, the date when the learned Sessions Judge convicted him. Accordingly, s. 6(1) could not be applied to him. The situation of the second appellant, Basist, was different. The Sessions Judge had recorded Basist’s age as nineteen, apparently referring to the time of the offence. If that were correct, Basist would have been about twenty years old when the Sessions Judge convicted him of offences under sections 307 and 326 of the Indian Penal Code, and he would still have been under twenty‑one when the High Court altered his conviction to an offence under section 324 of the Indian Penal Code. The Court therefore needed to consider whether, because of his age and the nature of the offence, the provisions of s. 6(1) could be invoked in his case.

The Court then examined whether the learned judge possessed an unrestricted discretion to either grant or refuse an order under the statute, in accordance with the language of section eleven of that statute. This inquiry necessarily depended on two points: first, whether section six sub‑paragraph one was applicable to the High Court in the present circumstances; and second, how the words of section eleven, which empower appellate and revisional courts to make orders under the statute, should be correctly interpreted. Counsel for the appellant argued that when the High Court recorded a finding that the second appellant, Basist, was guilty of an offence punishable under section three hundred twenty‑four of the Indian Penal Code, that finding fell squarely within the phrase “the court by which a person is found guilty” contained in section six sub‑paragraph one. The argument was that it was only this Court that, for the first time, declared the accused guilty of an offence that was not excluded by the introductory words of section six. Counsel relied on the decision of the Madras High Court in Narayananwami Naidu v. Emperor (1906) I.L.R. 29 Mad. 567, which in turn followed a similar ruling of the Allahabad High Court in Emperor v. Birch (1902) I.L.R. 24 All. 306. In the first of those authorities, the question concerned the scope of the words “Court before whom he is convicted” appearing in section five hundred sixty‑two of the Code of Criminal Procedure, as then enacted. That provision was materially similar to section four of the present statute, both allowing a person found guilty of offences not punishable by death or life imprisonment to be released on entering into a bond rather than being sentenced to imprisonment.

The Madras decision dealt with a situation where the Code, in its original form, contained no express provision granting appellate courts the authority to make comparable orders. In that case the accused had been tried and convicted by a magistrate under sections four hundred forty‑seven and three hundred fifty‑two of the Indian Penal Code and sentenced to two weeks of rigorous imprisonment. On appeal, the Deputy Magistrate who heard the appeal affirmed the conviction but directed the accused’s release upon execution of a bond, thereby applying the provisions of section five hundred sixty‑two of the Code. The District Judge, however, held that the Deputy Magistrate had exceeded his jurisdiction in granting that order and referred the issue to the High Court. The High Court bench rejected the referral, observing that the phrase “Court before whom he is convicted” in section five hundred sixty‑two was not intended to limit the power to make orders under that section to the trial court alone. The Court noted that the Code has since been amended by the insertion of sub‑section two, which expressly provides that an order under the section may be made by an appellate court or by the High Court when exercising its revisional powers. This amendment underscores the broader interpretation that the words “the court by which a person is found guilty” are sufficiently wide to embrace appellate courts, particularly where the appellate court, by its own finding of guilt, first acquires the authority or duty to act under the statute.

The amendment provides that an appellate court or the High Court may make an order when exercising its power of revision, which eliminates the need for such courts to interpret the phrase “the court by which the person is found guilty” in order to invoke or exercise jurisdiction. Consequently, the expression “the court by which a person is found guilty” is broad enough to encompass an appellate court, especially where the appellate court alone, by its judgment of guilt, acquires for the first time the authority or duty to act under the statutory provision. If section II were applicable to the case, there would be no requirement to invoke the High Court’s jurisdiction under section 6, and in that situation the proper construction of section 6 would be to exclude an appellate or revisional court, because the statute would not intend a redundant exercise of power. The initial issue, therefore, is to determine whether the jurisdiction or powers contemplated in section 6(1) fall within the scope of the jurisdiction granted by section 11. Section 11 empowers the High Court to “pass an order under the Act,” and the inquiry must return to the Act itself to identify what orders may be passed. Under section 3, a court may order the release of a person convicted of an offence specified in that section after appropriate admonition. Section 4 allows a court to release such a person on the condition of entering a bond, with or without sureties, or to issue a supervision order. Sections 5 and 9 provide for consequential orders that follow those made under sections 3 or 4. Regarding section 6, it is doubtful that it involves the “passing of an order,” because its operative language directs that a court finding a person guilty must refrain from imposing any sentence. An injunction that prevents a court, which under ordinary law is authorised to impose imprisonment, from doing so cannot readily be described as “passing an order” under the Act. If that view were adopted, the reasoning of the Madras and Allahabad High Courts in interpreting section 562 of the Code would mean that the High Court, while hearing an appeal, would be bound by the provisions of section 6. However, the words in section 11(1) – “pass an order under the Act” – may not be read strictly; they may be understood to mean “exercise the powers or jurisdiction conferred by the Act.” Such a broader interpretation is consistent with the purpose and scope of the section, which is intended to apply “notwithstanding” any other law.

The Court observed that the phrase “anything in the Code or any other law” applies to every court that has the authority to impose imprisonment on offenders. To interpret a provision of this general character in a narrowly restricted manner—limiting the power of those courts solely to the functions specified in sections 3 and 4—would, in the Court’s view, be contrary to sound principles of statutory construction. Consequently, the Court was inclined to hold that the courts referred to in section 11, whether they are trial courts or courts exercising appellate or revisional jurisdiction, are empowered not only to exercise the jurisdiction conferred by sections 3 and 4 and the consequential provisions, but also the jurisdiction provided under section 6. Having accepted the construction of section 11(1) advocated by counsel for the respondent—that the courts mentioned therein may pass orders under sections 3, 4 or 6—the Court turned to consider the scope of that jurisdiction, particularly the extent and nature of the discretion vested in those courts. Counsel for the appellant submitted that the power given to the High Court and other courts by section 11(1) is neither greater nor lesser than the power granted to a court under section 6(1), and that the former must be exercised subject to the same conditions and limitations set out in the latter provision. In other words, the appellant argued that the terms of section 6 should be read into the jurisdiction of the courts acting under section 11(1). Conversely, counsel for the respondent contended that section 11(1) should be read according to its own language, thereby conferring on the courts mentioned an absolute and unfettered discretion “to pass or not to pass an order under the Act” as they deem appropriate, taking into account the circumstances of each case. A substantial part of the respondent’s argument relied on the meaning of the permissive verb “may” in the phrase “may be made” appearing in the operative part of the subsection, asserting that because no explicit limitations are placed by this or any other section on the exercise of this discretion, the discretion should be regarded as unrestricted and capable of being exercised, albeit guided by judicial principles, without any statutory restraints. The Court noted that, although the word “may” can denote a mere enabling power in the sense of the familiar expression “it shall be lawful,” it can also be interpreted as indicating a compellable duty, especially when it refers to a power conferred upon a court or other judicial authority, as observed in relevant authority.

In discussing statutes that give persons authority to act for the benefit of others, for the public good, or for the advancement of justice, the Court observed that such statutes often become controversial when they grant power in terms that appear merely enabling rather than mandatory. The Court noted that when a provision states that a body “may” or “shall” act if it thinks fit, or that it “has power,” or that “it shall be lawful” to do such acts, the language on its face seems to convey permission only. However, the Court explained that long‑standing judicial decisions have turned such language into an accepted principle that these expressions, at a minimum, carry a compulsory force. The Court further observed that the fact that the power is given to a Court weakens any literal reading of the word “may” that the respondent had suggested. Beyond this linguistic point, the Court turned to the specific power created by section 11(1), which authorises the making of “an order under the Act.” The Court examined the precise meaning of those words and asked whether they imply that any order issued under section 11(1) must be subject to the same limitations or conditions that apply to orders made under the primary provisions of the Act. To illustrate this, the Court referred to section 3, which empowers a court to release certain offenders on probation of good conduct after a proper admonition. Section 3 sets out two tests that must guide the exercise of that discretion: first, that the offender must have no previous conviction proved against him; and second, that the court which convicted the person must be of the opinion that, considering the circumstances of the case, the nature of the offence and the character of the offender, it is expedient to release him. In a similar fashion, section 4 also empowers a court to release offenders on probation of good conduct. The criteria in section 4 require that the court, after considering the circumstances, nature of the offence and character of the offender, be of the opinion that it is expedient to release the offender on probation, provided that the court is satisfied that the offender or his surety has a fixed place of residence or a regular occupation within the jurisdiction of the court or in a place where the offender is likely to live during the period of the bond. The Court then asked whether it would be a proper construction of section 11(1) to permit the High Court or other appellate courts to pass orders on appeal or revision without reference to the standards, tests, or guidance that the statute prescribes for primary courts. The Court concluded that the answer to that question must be negative. It further held that the power conferred on appellate or other courts by section 11(1) possesses the same nature and characteristics as the power given to courts under the primary provisions.

In this case the Court held that the power conferred on the High Court by section 11(1) is subject to exactly the same criteria and limitations that apply to the courts exercising power under sections 3 and 4. The Court indicated that this view is confirmed by the language of section 11(3). Consequently the Court said that it would be impossible to adopt a different rule of interpretation when the power under section 6 is considered. For example, the Court rejected any suggestion that the High Court, exercising its discretion, could apply the power under section 6 to a person who is over twenty‑one years of age, or to a person who has been convicted of an offence punishable with death or with imprisonment for life. The Court explained that such limitations on the exercise of discretion must be derived solely from the terms of section 6(1). If section 6(1) limits the apparently absolute discretion that the word “may” might convey, then, in the Court’s view, it follows logically that the entire provision of section 6(1) must guide and condition the jurisdiction of the High Court under section 11(1). Accordingly the Court rejected the respondent’s submission that an appellate court enjoys unfettered discretion in a case brought before it under section 11 and that its discretion is not governed by section 6(1). The next issue the Court examined was the effect of applying section 6(1) to the individual named Basist. It was not contested by the respondent’s counsel that the High Court judge had failed to consider the accused’s case in light of the provisions of section 6, because the judge proceeded on the assumption that he possessed unrestricted discretion and, in the circumstances of the present matter, chose not to exercise that discretion in favour of the accused. Therefore the Court set aside the High Court’s order as it pertained to the second appellant, Basist, and directed the High Court to exercise its discretion while observing the criteria laid down in section 6. The Court then turned to a further question that had been raised, namely the appropriate date for determining the offender’s age when an appellate court modifies the trial judge’s judgment and when section 6 becomes applicable to a person only upon the decision of an appellate or revisional court. The Court considered whether the offender’s age should be measured at the date of the trial judge’s decision or at the date when the accused first becomes eligible to invoke the benefit of section 6. The Court concluded that, based on the language of the section, logical reasoning, and the principle that an appellate order is the correct order that the trial court should have passed, the decisive date is the one on which the trial court had to deal with the offender.

The Court concluded that the decisive date for applying the provision of section six is the date on which the trial court had to make its decision concerning the accused. Accordingly, the relevant date is the date when the trial court was required to deal with the offender, rather than the later date on which an appellate order is finally issued. In the present case, the second appellant, Basist, was conclusively found to be younger than twenty‑one years at the time the Assistant Sessions Judge delivered his judgment. Because his age at that moment was below the statutory threshold, section six of the Probation of Offenders Act, 1958, could not be said to be inapplicable to him, even if he attained an age above twenty‑one by the time the appeal was decided. The Court therefore allowed the appeal in respect of Basist, that is, the second appellant, and directed that the matter be sent back to the High Court. The High Court was instructed to determine the appropriate order that should be passed in Basist’s case by correctly applying the provisions of section six of the Probation of Offenders Act, 1958. In summary, the appeal was allowed in part, limited to the relief sought for the second appellant, and the case was remanded for further proceedings consistent with the statutory provision.