Rattan Lal vs State Of Punjab

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

Court: supreme-court

Case Number: Criminal Appeal No. 190 of 1962

Decision Date: 10 April 1964

Coram: Subba Rao, K. Gupta, K.C. Das Gupta, Raghubar Dayal

The matter was titled Rattan Lal versus State of Punjab and was decided on 10 April 1964 by the Supreme Court of India. The judgment was delivered by a bench comprising Justices Subbarao, K. Gupta, K. C. Das Gupta and Raghubar Dayal. The petitioner was identified as Rattan Lal and the respondent as the State of Punjab. The official citation of the decision was reported as 1965 AIR 444 and also recorded in the Supreme Court Reports, volume 7, page 676, with several subsequent citations in later reports. The legal question concerned the applicability of the Probation of Offenders Act, 1958, specifically sections 3, 4 and 6, to a conviction that had been handed down before the Act came into force in the relevant territorial area, and whether the High Court possessed the authority to exercise the powers conferred on it under section 11 of the Act.

The factual background disclosed that the appellant, who resided in Palwal in Gurgaon District, had been charged with committing house trespass and attempting to outrage the modesty of a seven‑year‑old girl. On 31 May 1962 a magistrate convicted the appellant and sentenced him to rigorous imprisonment, also imposing a monetary fine. At the time of the conviction the appellant was sixteen years of age. The Probation of Offenders Act, 1958 was extended to Gurgaon effective 1 September 1962; consequently, at the moment of his conviction the magistrate was not empowered, nor obligated, to order probation under the Act. The appellant’s appeal was dismissed by the Additional Sessions Judge, Gurgaon, on 22 September 1962, and his subsequent revision petition was rejected by the High Court on 27 September 1962. Neither the Additional Sessions Judge nor the High Court raised any argument that the provisions of the Act should apply. After the dismissal of the revision petition, the appellant filed a criminal miscellaneous petition before the High Court seeking to invoke section 11 of the Act and to obtain an order under sections 3, 4 or 6. The High Court dismissed this application as well. The appellant then petitioned the High Court for a certificate of fitness to appeal to the Supreme Court, contending that the High Court should have acted under section 11 and issued orders under sections 3, 4 or 6. The High Court refused the certificate, leading the appellant to seek special leave to appeal before the Supreme Court, which was granted.

The Supreme Court, by a majority opinion authored by Justices Subbarao and Das Gupta, held that the order of the High Court should be set aside and directed the High Court to make an order under section 6 of the Probation of Offenders Act, 1958, or, if it preferred, to remand the case to the Sessions Court for the same purpose. The Court noted that, although it generally exercises caution in allowing a party to raise a new point for the first time before it, in this instance both the Additional Sessions Judge and the High Court had ignored the mandatory provisions of the Act. The Court further observed that the appellant’s failure to invoke the Act’s provisions until after the revision petition was disposed of did not relieve the lower courts of their duty to apply the statutory requirements. Consequently, the Supreme Court affirmed that the appellate court, whether on appeal or on revision, possessed the authority under section 11 of the Act to make an order pursuant to section 6(1).

The Court observed that both the Additional Sessions Judge and the High Court had disregarded the mandatory provisions of the Probation of Offenders Act. It noted that, although the appellant had raised the provisions of the Act only after the revision petition had been disposed of, this delay did not relieve the courts of their duty to apply the Act. The Court explained that an appellate court hearing an appeal, or a High Court hearing a revision, could, under the powers conferred by section 11 of the Act, make an order under section 6(1). It described the Act as a milestone in the modern liberal trend of penal reform, reflecting the doctrine that the purpose of criminal law is more to rehabilitate an offender than to punish him. The Act distinguishes between offenders who are below twenty‑one years of age and those who are above that age, as well as between offenders convicted of offences punishable with death or life imprisonment and those convicted of lesser offences. For offenders above twenty‑one, the statute gives the court absolute discretion to release them after admonition or on the condition of good conduct. For offenders below twenty‑one, the Act imposes an injunction on the court not to impose imprisonment unless the court is satisfied, after considering the circumstances of the case, the nature of the offence and the character of the offender, that it is not desirable to deal with them under sections 3 and 4. The Court clarified that an order under section 11(1) could be made by any court that is authorised to try and sentence the offender, including a High Court or any other court when the matter appears before it on appeal or revision. The subsection, the Court held, does not limit the jurisdiction of an appellate court to cases in which the trial court could have made the order; the language is sufficiently broad to allow the appellate or revisional court to issue such an order. The provision was purposely drafted in a comprehensive manner to further the social reform objectives of the Act. Since the Act does not alter the quantum of the sentence but merely introduces a mechanism for reform, the legislature had no reason to prohibit the exercise of this power even when the case was pending at any stage in the judicial hierarchy. Accordingly, the term “court” in section 6(1) was held to include both appellate and revisional courts. In dissent, Justice Raghubar Dayal argued that when a person is found guilty for the first time of an offence to which sections 3 and 4 could apply, and that finding is made before the Act came into force, the appellate or revisional court could not invoke section 11(1) when the matter later comes before it. He observed that while appellate courts have sometimes allowed parties to rely on a law enacted during the pendency of a case, such allowance is made only where further litigation is possible and to avoid multiplicity of proceedings, a situation which did not arise in the present case.

It was observed that when a conviction by the trial court or an appellate court is reached before the Probation of Offenders Act comes into force, the court of appeal or revision lacks authority to act under section 11(1) of that Act when the matter again appears before it on appeal or revision. Although appellate courts have sometimes permitted parties to invoke a law that was enacted during the pendency of a case, such permission is granted only when the parties are able to continue litigation under the newly‑changed law and when the purpose is to avoid a multiplicity of proceedings. The present case did not present any such circumstance, and therefore that ground could not be invoked. The principle was referred to in Ramji Missar v. State of Bihar, [1963] Supp. 2 S.C.R. 745. The judgment concerned a criminal appeal numbered 190 of 1962, taken on special leave from the judgment and order dated 27 September 1962 of the Punjab High Court in Criminal Revision No. 1172 of 1962. Counsel for the appellant and for the respondent were named, and the judgment was delivered on 10 April 1964 by Justice Subba Rao, with Justice Raghubar Dayal delivering a dissenting opinion. The appeal raised the question of whether an appellate court possessed jurisdiction to exercise the power granted under section 6 of the Probation of Offenders Act, 1958 (Act No. 20 of 1958), hereinafter referred to as the Act, in respect of an accused who had been convicted by the trial court before the Act applied. The factual backdrop was not in dispute: the appellant, a resident of Palwal in Gurgaon District, had committed house trespass and had attempted to outrage the modesty of a seven‑year‑old girl. He was tried before the First Class Magistrate at Palwal, who on 31 May 1962 convicted him under sections 451 and 354 of the Indian Penal Code, sentencing him to six months’ rigorous imprisonment for each count with the sentences to run concurrently. The magistrate also imposed a fine of Rs 200 under section 451 and ordered that, should the fine remain unpaid, the appellant would undergo an additional two months of rigorous imprisonment. The appellant was sixteen years of age at the time of his conviction. The Probation of Offenders Act was extended to Gurgaon District on 1 September 1962; consequently, at the moment of conviction the magistrate possessed neither the power nor the duty to make any order under the Act. The appellant subsequently appealed the conviction and sentence to the Additional Sessions Judge, Gurgaon, whose judgment dated 22 September 1962 dismissed the appeal. Although the Act had come into force by the time the Additional Sessions Judge delivered his decision, the appellant did not rely on its provisions, nor did the judge exercise the authority provided by the Act. The appellant then filed a revision in the High Court, which was dismissed on 27 September 1962. The revision petition was rejected at the outset, and no specific ground was taken regarding the failure of the Additional Sessions Judge to act under section 6 of the Act.

After the revision petition was disposed of, the appellant apparently filed Criminal Miscellaneous Petition No. 793 of 1962, asking the High Court to exercise its jurisdiction under section 1 of the Act and to pass orders under sections 3, 4 or 6 of that legislation. The High Court dismissed that application as well. The record does not contain the text of that application, and therefore the Court is unable to determine precisely what relief the appellant sought in the petition or the reasons on which the High Court based its dismissal.

Subsequently, the appellant filed a petition in the High Court under article 134(1)(c) of the Constitution, seeking a certificate of fitness to appeal to the Supreme Court. One of the grounds relied upon in that petition was that the High Court should have applied section 11 of the Act and should have passed orders under sections 3, 4 or 6 thereof. That petition was also dismissed, and the appellant then obtained special leave to file the present appeal before this Court.

Counsel for the appellant argued that, given the facts that have been admitted by the parties, the High Court was bound to act under section 11 of the Act and should have released the appellant on probation of good conduct rather than ordering his imprisonment. Counsel for the State, on the other hand, contended that the Act does not operate retrospectively; consequently it cannot be applied to the appellant because his conviction occurred before the Act came into force in Gurgaon District. The State counsel further maintained that neither section II of the Act nor section 6 thereof may be invoked in the present circumstances, relying upon the specific language employed in those provisions. In addition, the State argument asserted that the appellant, having failed to raise this point before the High Court after the disposal of the revision petition, is now barred by his own default from raising the contention at this very late stage.

The Act, according to the State’s submission, represents a significant development in the modern liberal trend of penal reform. It reflects a doctrinal shift that recognises the primary purpose of criminal law as the reform of the offender rather than mere punishment. Broadly, the Act distinguishes between offenders who are below twenty‑one years of age and those who are above that age, and it also differentiates between persons convicted of offences punishable by death or life imprisonment and those convicted of lesser offences. For offenders above twenty‑one years, the Act grants courts absolute discretion to release them after admonition or on probation of good conduct, subject to conditions laid down in the relevant provisions. For offenders below twenty‑one years, the Act imposes an injunction on the court, directing it not to impose imprisonment unless the court is satisfied that, after considering the circumstances of the case, the nature of the offence and the character of the offender, it would not be desirable to deal with the offender under sections 3 or 4 of the Act.

In considering the facts of the present matter, the Court observed that, taking into account the circumstances of the case, the nature of the offense committed and the character of the offenders, it would not be appropriate to deal with the offenders under sections 3 and 4 of the Act. After providing this brief background, the Court proceeded to read the relevant provisions of the Act. Section 6, subsection (1), provides that when any person who is under twenty‑one years of age is found guilty of an offense punishable with imprisonment – but not with imprisonment for life – the court that convicts such a person shall not impose a term of imprisonment unless it is satisfied that, after considering the circumstances of the case, the nature of the offense and the character of the offender, it would not be desirable to deal with the offender under section 3 or section 4 of the Act. The provision further mandates that, if the court nevertheless imposes a term of imprisonment, it must record the reasons for doing so. Subsection (2) clarifies that, in order to determine whether it would be undesirable to apply section 3 or section 4 to the offender mentioned in subsection (1), the court shall obtain a report from the probation officer, consider that report if it exists, and also examine any other information that is available concerning the offender’s character as well as his physical and mental condition.

Section 11 of the Act contains three sub‑sections. Sub‑section (1) states that, notwithstanding anything contained in the Code of Criminal Procedure or any other law, an order made under this Act may be issued not only by any court that is empowered to try and sentence a person to imprisonment but also by the High Court or any other court when the matter reaches that court on appeal or in revision. Sub‑section (2) provides that, notwithstanding any provision of the Code, where an order made under section 3 or section 4 is passed by a court that is trying the offender – other than a High Court – an appeal shall lie to the court to which appeals ordinarily lie from the sentences of that lower court. Sub‑section (3) deals with a situation where a person under twenty‑one years of age is found guilty of an offense and the court that convicts him declines to deal with him under section 3 or section 4, and then imposes a sentence of imprisonment, with or without a fine, from which no appeal lies or is preferred. In such a case, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the lower court may, either on its own motion or upon an application made by the convicted person or by the probation officer, call for and examine the case record and pass any order that it deems appropriate.

The Court then identified the first issue for determination: whether the High Court, acting under section 11 of the Act, could exercise the power that is conferred on a court by section 6 of the Act. The contention raised was that the jurisdiction of the High Court under section 11(3) is limited only to cases that have been brought before it on appeal or revision, and therefore the High Court could exercise only the same jurisdiction that the trial court possessed. It was further argued that, because the trial court could not have made an order under section 6 at the time it passed its order – the Act having not yet been extended to Gurgaon District – the High Court should not be permitted to apply section 6 retrospectively. The argument continued by citing several decisions that discuss the retroactive operation of statutes in relation to vested rights, emphasizing that any law that takes away or impairs a vested right is retrospective, and that any ex post facto law is necessarily retrospective. The argument also invoked Article 20 of the Constitution, which prohibits convicting a person for an offense unless the conduct was punishable under a law that was in force at the time the act was committed.

It was observed that the High Court may entertain a matter only when the case has been placed before it by way of appeal or revision, and consequently it can exercise only the jurisdiction that the trial court possessed. In the facts of the present case, the trial court was not empowered to pass any order under section 6 of the Act because, at the time the order was rendered, the Act had not yet been extended to Gurgaon District. Relying on this premise, the argument advanced that the Act should not be given retrospective effect; if it were applied retrospectively, it would alter the criminal liability of a person for conduct that occurred before the Act became operative. To support this contention, several decisions dealing with the retroactive operation of statutes in relation to vested rights were cited. The submissions emphasized that any law that takes away or diminishes a vested right is, by definition, retrospective, and that every ex post facto law is necessarily retrospective. Article 20 of the Constitution was quoted, stating that no person shall be convicted of an offence except for violation of a law that was in force at the time of the alleged act, nor be subjected to a penalty greater than that which could have been imposed under the law then in force. However, the argument noted that an ex post facto law which merely softens the severity of a criminal provision does not fall within the prohibition of Article 20. It was further pointed out that if a statute expressly provides for a particular effect, even though it operates retrospectively, such a provision would be valid. The determination of whether a law is retrospective, and to what extent, depends on the interpretation of the statute in question, guided by the well‑settled rules of construction. In this regard, the treatise “Maxwell on Interpretation of Statutes”, 11th edition, pages 274‑275, was referenced, summarising the rule of construction as follows: the modern trend is to narrow the distinction between strict and beneficial construction; statutes are now read with greater attention to their language, and criminal statutes with a more rational regard to the legislature’s aim and intention. While it is recognised that the distinction should not be completely abandoned, the spirit of free institutions requires that statutory interpretation favour personal liberty, leading to a reluctance to supply gaps in language or to stretch obscure passages by strained reasoning. Accordingly, when an ambiguous word or sentence leaves reasonable doubt that cannot be resolved by interpretative canons, the benefit of the doubt must be given to the individual and against the legislature that failed to clarify its intent. Nonetheless, the paramount rule remains that every statute must be expounded according to its express or manifest intention, and that all cases falling within the mischiefs the statute aims to remedy, if the language permits, should be held within its remedial scope.

In addressing the matter that arose before the Court, the analysis began by recalling that statutes must be interpreted in accordance with their express or manifest intention and that, where the language permits, every case falling within the mischiefs the legislation seeks to address should be held to come within its remedial influence. The Court then turned to the specific question presented by the present dispute. It was emphasized that the present situation did not involve an act that had previously been lawful being criminalised by the new legislation, nor did it involve the imposition of a harsher penalty than the one applicable before the enactment. Rather, the circumstance was that neither the essential elements of the offence nor the maximum term of imprisonment were altered; instead, a provision had been introduced with the purpose of facilitating the reformation of an offender through the authority of the court. Nevertheless, because the statutory provision affected conduct that had been committed before the law was extended to the relevant area, the Court observed that the provision operated retrospectively and therefore qualified as a post‑facto law. In determining the reach of such a provision, the Court held that a rule of beneficial construction, as reflected in contemporary judicial opinion, must be employed without distorting the language of the relevant section. The Court noted that Section 11(3) of the Act, which formed the basis of most of the State’s submissions, was inapplicable to the appeal under consideration because that subsection is triggered only where no appeal lies or is filed against an order of a court declining to deal with an accused under Sections 3 or 4 of the Act. In the present case an appeal had indeed been lodged before the Sessions Judge and, subsequently, an appeal was filed against the Magistrate’s order. Accordingly, the provision directly governing the present matter was identified as Section 11(1) of the Act. That subsection authorises any court empowered to try and sentence the offender, including the High Court or any other court hearing the case on appeal or in revision, to make an order under the Act. The Court observed that, on its face, the language of the subsection does not limit the jurisdiction of an appellate court to issue such an order merely in situations where the trial court itself could have done so. The wording was considered sufficiently wide to permit an appellate or High Court, when the case comes before it, to issue the order. The provision was intentionally drafted in a comprehensive manner because the Act was intended to implement a scheme of social reform. Since the Act does not modify the quantum of the sentence but merely introduces a mechanism for offender reform, there was no justification for the Legislature to bar the exercise of that power even when the matter was pending before a tribunal at any stage of the hierarchy. The Court further explained that if Sections 6(1) and 11 were read together, they would lead to the same conclusion. When Section 11(1) states that an appellate or revisional court may make an order under the Act, it logically follows that the court may also make an order under Section 6(1). Consequently, the term “court” in Section 6(1) must be understood to encompass both appellate and revisional courts.

In this case the Court explained that the provision granting power to make an order under the Act also extends to an order made pursuant to section 6(1) of the Act. Consequently, the term “court” appearing in section 6(1) must be interpreted to include not only trial courts but also appellate courts and revisional courts. The Court further observed that when an appellate or revisional court determines that a person is guilty, section 6(1) imposes a restriction that such a court may not impose imprisonment unless the specific conditions stipulated in that section are satisfied. The Court then considered whether the phrase “the court by which the person is found guilty” could be read to exclude an appellate or revisional court. It held that an appellate or revisional court that either confirms a conviction rendered by a trial court or overturns an acquittal and thereby convicts the accused necessarily finds the accused guilty; without such a finding the court could not lawfully confirm the conviction or set aside the acquittal and impose a conviction. The Court turned to the argument advanced by counsel for the State, which contended that the Act should apply only to convictions delivered by a trial court after the Act became operative. The Court found that accepting this contention would create anomalous results. First, the Act would apply to a conviction pronounced by a trial court after the Act’s commencement but would not apply to an accused whose appeal was pending after the Act’s commencement. Second, the Act would apply if an appellate court set aside the conviction and remitted the case to the trial court for fresh disposal, yet it would not apply if the appellate court itself rendered the conviction. By contrast, if the expression “found guilty” is given its ordinary meaning, it would encompass any finding of guilt made by any court within the hierarchy of criminal tribunals that is pending after the Act became effective. The Court noted that this broader interpretation is supported by its earlier decision in Ramji Missar v. State of Bihar. In that case the Assistant Sessions Judge of Arrah convicted a person named Basist under sections 307 and 326 of the Indian Penal Code, offenses punishable by life imprisonment, and consequently the provisions of the Probation of Offenders Act, 1958 could not be invoked. The Judge sentenced Basist to six years of rigorous imprisonment under section 307 and four years of rigorous imprisonment under section 326, ordering the sentences to run concurrently. On appeal, however, the High Court found Basist guilty of an offence under section 324 of the Indian Penal Code. It was argued that the High Court lacked authority to make an order under section 6(1) of the Probation of Offenders Act, 1958 because section 11 of the Act supposedly did not confer such power on a High Court. Addressing this argument, the Court observed that the wording of section 11(1) could be understood not in a narrow, literal sense but as empowering courts to exercise the jurisdiction conferred by the Act, thereby allowing an appellate court to make an order under section 6(1).

In this case, the Court observed that the words “pass an order under the Act” should not be interpreted in an overly strict and literal manner, but should be understood to mean “to exercise the powers or jurisdiction conferred by the Act.” The Court explained that such a wide interpretation could be justified by considering the scope and object of section 11, which is intended to apply “notwithstanding anything in the Code or any other law” to all courts empowered to sentence offenders to imprisonment. The Court held that reading a beneficial provision of this universal type in a restricted sense—so as to confine the power of these courts only to the exercise of the powers under sections 3 and 4—would not be consistent with sound principles of statutory interpretation. Accordingly, the Court was inclined to hold that the courts mentioned in section 11, whether trial courts, appellate courts or revisional courts, are empowered to exercise the jurisdiction conferred not only under sections 3 and 4 and the consequential provisions, but also under section 6. When it was contended that the word “may” in section 11 of the Act gave the appellate court or the High Court a discretionary power to act at its option, and that the phrase “any order under the Act” permitted it to make an order without reference to the standards laid down in the Act, the Court rejected both submissions. The Court held that the expression “may” carries a compulsory force and that the power conferred on the appellate court was of the same nature and character, and subject to the same criteria and limitations, as those conferred on courts under sections 3 and 4 of the Act. The Court then laid down three propositions: first, an appellate court or a revisional court can make an order under section 6(1) of the Act in exercise of its power under section 11(1); second, it can make such an order for the first time even though the trial court could not have made such an order, having regard to the finding given by it; and third, in making such an order it is subject to the conditions laid down in sections 3, 4 and 6 of the Act. The Court noted that the only distinguishing feature between the present case and the earlier decision was that, in the present case, the trial court did not make the order because the Act was not extended to the area within its jurisdiction, whereas in the earlier decision the trial court refrained from making the order on the ground that the accused was guilty of an offence punishable with imprisonment for life. However, the Court emphasized that it had held that the High Court could, for the first time, make such an order under section 11 of the Act, as that power was expressly conferred on it by section 11. Consequently, the Court concluded that the appellate court on appeal or the High Court in revision may, in exercise of the power conferred under section 11 of the Act, make an order under section 6(1) thereof.

In this case, the Court noted that the power conferred under s. 11 of the Act permitted an appellate court or a High Court, acting in agreement with the Magistrate, to make an order under s. 6(1) when they found the accused guilty of the offences for which he was charged. The Court then considered whether it could also exercise the same power under s. 11(1) of the Act. It observed that, when disposing of an appeal against an order of the High Court, the Court would be deciding what the High Court ought to have held in the revision before it, and therefore its authority would be limited to the same scope of power that the High Court could exercise. Consequently, the Court held that it could either make an order under s. 6(1) of the Act itself or direct the High Court to make such an order. However, whether the Court chooses to make the order directly or to direct the High Court, it must nevertheless comply with the provisions of s. 6 of the Act. The Court explained that a court may not impose a term of imprisonment on a person who is under twenty‑one years of age and who has been found guilty of an offence punishable with imprisonment (but not with imprisonment for life) unless the court is satisfied, after considering the circumstances of the case, the nature of the offence and the character of the offender, that it would not be appropriate to deal with the offender under s. 3 or s. 4 of the Act. To satisfy itself in this regard, the Court stated that under sub‑s. (2) of s. 6 the Court shall call for a report from the probation officer, consider that report if any, and consider any other information that is available concerning the offender’s character as well as his physical and mental condition. After reviewing the material, the Court shall determine whether it is desirable to deal with the offender under s. 3 or s. 4. If the Court is not satisfied that the offender should be dealt with under either of those two sections, it may impose a sentence of imprisonment, provided it records the reasons for doing so. The Court observed that the phrase “if any” in sub‑s. (2) of s. 6 suggests that the Court may choose whether to request a report, but the mandatory word “shall” makes the request a compulsory condition; the expression “if any” merely covers the situation where, despite a requisition, the probation officer fails to submit a report. In summary, the requirement to call for a probation‑officer report is a condition precedent to exercising the power under s. 6(1). Applying this principle to the facts before it, the Court concluded that the most appropriate course was to remit the matter to the High Court so that the High Court could make an order after complying with s. 6(1) of the Act. Finally, the Court noted the contention that, at this very late stage of the proceedings, it should not interfere with the order of the High Court, especially in view of the observations made by the Additional Sessions Judge in sentencing the accused.

Having considered the observations made by the Additional Sessions Judge while sentencing the accused, the Court decided to interfere with the order issued by the High Court. Normally the Supreme Court would be hesitant to permit a party to introduce a fresh point of law for the first time before it. Nevertheless, in the present matter both the Additional Sessions Judge and the High Court failed to observe the mandatory provisions contained in the Act. It was acknowledged that the accused had not brought the provisions of the Act to the attention of the courts until after the revision proceedings had been concluded. That omission, however, did not relieve the courts of their statutory duty to apply the Act where its provisions were applicable. The observations recorded by the Additional Sessions Judge during sentencing were found to be made outside the framework of the Act. Consequently, those observations did not demonstrate that the Judge had satisfied himself of the conditions enumerated in section 6(1) of the Act. Moreover, the Court observed that the Judge could not lawfully fulfill the requirements of section 6(1) without first complying with the procedural conditions prescribed therein. The Court was convinced that because the Act had only recently been extended to Gurgaon District, its existence had escaped the notice of both the Additional Sessions Judge and the High Court. Therefore, the matter presented a suitable occasion for the Supreme Court to intervene under article 136 of the Constitution. Accordingly, the order passed by the High Court was set aside and the High Court was directed either to issue an order pursuant to section 6 of the Act or, if preferred, to remit the case to the Sessions Court for that purpose. The Court also clarified that it was not questioning the correctness of the lower courts' findings regarding the guilt of the accused, and indeed the appellant’s counsel had not challenged that finding. The Court reiterated the principle that when a person is found guilty for the first time of an offence to which sections 3 and 4 of the Probation of Offenders Act, 1958 may apply, and that finding is rendered before the Act comes into force in the relevant area, neither the appellate nor the revision court may invoke section 11(1) of the Act. In the facts of this case, the trial Court had convicted the appellant on May 31, 1962, which was before the Act was extended to the district. The Act became applicable to Gurgaon District on September 1, 1962 by a Government notification, while the appellant’s appeal was still pending before the Sessions Judge. That appeal was dismissed on September 22, 1962, and the appellant did not draw the Court’s attention to the newly applicable provisions of the Act.

In this matter, the trial court had not drawn the attention of the Court to the provisions of the Probation of Offenders Act, and consequently the Court did not consider those provisions. The appellant subsequently sought revision before the High Court, but that revision was dismissed on 27 September 1962, and the High Court likewise made no reference to the Act. On the following day, 28 September 1962, the appellant filed a petition requesting release on the basis of sections 3, 4 and 6 of the Act, or alternatively, treatment under section 562(2) of the Code of Criminal Procedure. That petition was rejected, and neither the petition nor the order of rejection was mentioned in the subsequent petition for special leave to appeal. The reference to these matters appeared only in the petition filed in the High Court seeking leave to appeal to this Court under article 134(1)(c) of the Constitution, dated 3 October 1962, and recorded on page 25 of the appeal record together with the accompanying grounds of appeal. The special‑leave petition filed in this Court asked for leave to appeal against the order and judgment dated 27 September 1962 in the principal revision case, and did not seek to challenge the order rejecting the earlier petition, which is identified as Criminal Miscellaneous No. 793 of 1962. Paragraph 9 of the special‑leave petition incorrectly stated that the petitioner had filed an application under article 134(1)(c) of the Constitution for a certificate of fitness for leave to appeal, and that such an application had been refused on 19 October 1962. The ground recorded in the petition, taken at face value, indicated that the application was for leave to appeal against the order in Criminal Revision No. 1172 of 1962. In view of these facts, the special leave that had been granted was deemed liable to be revoked. The appellate court was required to examine whether the order of the lower court, based on the material on record, was correct and to issue a proper order accordingly. Because the trial court could not have acted under the provisions of the Act, which were in force at the time it convicted the accused, the appellate court likewise could not act under those provisions unless the Act expressly provided that they would apply to cases decided before its commencement. No such express provision existed, and no necessary implication could be drawn from the Act to support such application. While it is true that appellate courts have sometimes allowed parties to benefit from a law enacted during the pendency of a case in order to avoid multiple proceedings, that rationale was unavailable here. Normally, a case decided by a magistrate at first instance proceeds through several years before the final order is issued by the High Court on revision, and an appeal ordinarily lies to the Sessions Judge from the magistrate’s order and then to the High Court on revision.

The Court observed that the ordinary procedural route involved an order passed by a Magistrate, which could be appealed to a Sessions Judge, and a revision of the Sessions Judge’s order before the High Court. Both the appeal to the Sessions Judge and the revision before the High Court required a considerable amount of time to be completed. Because the Act under consideration applied uniformly throughout India, the Court noted that a very large number of persons had been convicted by trial Courts before the Act came into force. The Court found it unreasonable to assume that the legislature had intended that every order of a Magistrate in cases of conviction of persons under twenty‑one years of age should automatically become unlawful and subject to correction by appellate and revision courts. Moreover, if such orders were set aside, the mere annulment of the Magistrate’s sentencing would not have concluded the matters; it would have inevitably given rise to further proceedings before the Magistrate or the appellate courts to determine whether action could be taken pursuant to sections three, four and six of the Act. The Court could not conceive that the legislature intended to reopen all of those numerous cases, and it held that, had the legislature intended such a sweeping result, it would have expressed that intention unmistakably in the legislation.

The Court then explained the operation of sections three and four of the Act. Section three authorized a Court to release certain offenders after an admonition, while section four authorized a Court to release certain offenders on probation of good conduct. The Court stressed that the authority to act under these sections belonged to the Court that actually found the person guilty of the offence specified in the relevant sections and under the circumstances described therein. Such orders were to be made in place of imposing any other punishment that might otherwise have been awarded. Consequently, the Court held that only the Court which first found a person guilty of the offence could exercise the power under sections three and four. A person could be found guilty for the first time by the trial Court, by an appellate Court that altered a prior conviction to bring it within the scope of the sections, or by the High Court when it upheld a conviction on appeal against an acquittal. In each of those situations, the trial Court, the appellate Court, or the High Court could be said to have found the accused guilty. By contrast, a Court of revision could not transform an acquittal into a conviction; therefore, a revision Court could never be the first Court to find an accused guilty of an offence to which sections three and four applied. When an appellate Court merely confirmed a conviction, the Court clarified that such confirmation did not amount to a new finding of guilt, but rather a confirmation of the trial Court’s original finding.

In this matter the Court observed that the expression “the Court by which the person is found guilty” should not be interpreted to include an appellate Court that merely confirms a conviction for an offence falling within sections three or four. The Court explained that if such an interpretation were adopted, there would be no need to grant the appellate Court a separate power to act under those sections, a power that is expressly provided by sub‑section (1) of section eleven. Sub‑section (1) states: “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.” From this language the Court concluded that the Court initially authorized to make an order under the Act is the Court that has the authority to try and impose imprisonment, namely the original trial Court. That trial Court alone possesses the power to take action under the Act at the first instance. However, the provision also allows the High Court or any other Court to make such orders when the same case reaches them on appeal or revision. The Court then examined when the High Court or any other Court may exercise this power. It held that the power may be exercised only in those situations where the trial Court could have exercised the power, and the matter subsequently comes before the higher Court on appeal or revision. This interpretation follows from the word “also” in the provision and from the requirement that the higher Court may act when the case is before it on appeal or revision. Consequently, the higher Court may act only in cases that the trial Court was capable of acting upon, not in every appeal or revision indiscriminately. The Court found it unreasonable to read sub‑section (1) as permitting the High Court or any other Court to act in all appellate or revisionary proceedings irrespective of the trial Court’s earlier power. The overall scheme of section eleven supports this limited construction. Sub‑section (2) of the same section creates a right of appeal when an order under sections three or four is made by any Court trying an offender, meaning that an appeal lies whenever the trial Court convicts and exercises power under sections three or four. In such appeals the appellate Court does not itself take action under sections three or four, because that action has already been taken by the trial Court; the appellate Court’s function is limited to examining the correctness of the conviction.

If the appellate Court determines that an order made under section 3 or section 4 was unwarranted, it may set aside that order and impose a suitable sentence in accordance with sub‑section (4). Sub‑section (2) creates a right of appeal, while sub‑section (4) authorises the appellate Court to examine the propriety of any order issued under sections 3 or 4 of the Act. These two provisions together exhaust the situations in which the High Court or any other appellate Court may issue orders under sections 3 or 4. Although sections 3 and 4 grant discretionary authority to a court to make an order in particular circumstances, sub‑section (1) of section 6 imposes a duty on the trial court. When the trial court finds a person under twenty‑one guilty of an offence punishable with imprisonment, it may not impose prison unless it is satisfied, after reviewing the facts, that using section 3 or section 4 would not be appropriate. If the court reaches that conclusion, it must record the reasons for imposing imprisonment rather than invoking section 3 or section 4. Sub‑section (2) of section 6 further requires the court to obtain a report from the Probation Officer. The court must consider that report in order to determine whether it would be undesirable to proceed under section 3 or section 4. These provisions of section 6 limit the trial court’s discretion to use sections 3 and 4 with respect to persons under twenty‑one years of age. The limitation applies to all offences except those that are punishable with life imprisonment. Nevertheless, a court may still impose imprisonment on such a young offender after examining the various relevant factors and after being satisfied that an order under section 3 or section 4 is not appropriate. Sub‑section (3) of section 2 deals with cases that fall within the ambit of section 6. It provides that when a trial court has refused to deal with a convicted person under section 3 or section 4, has imposed imprisonment, and no appeal is pending or filed, the higher court to which appeals ordinarily lie may act. That higher court may, either on its own motion or on an application by the convicted person or the Probation Officer, call for and examine the case file. After examining the record, that higher court may pass any order it considers appropriate. If the original order is appealable, the appellate court may also address the issue under the authority granted by sub‑section (1). That provision enables the appellate court, when the case is before it, to make any order that the Act allows. Consequently, action under sub‑section (3) can be exercised by the appellate court only in situations where the trial court declined to act under section 3 or section 4. In other words, the appellate court’s power under sub‑section (3) is limited to cases in which the lower court had the power to order under sections 3 or 4 but chose not to exercise it.

The Court explained that when a trial Court, at the moment it convicted and sentenced a person, possessed the authority to issue an order under section 3 or section 4 of the Act and nevertheless decided that such an order was not desirable, the situation was different from a case where the trial Court lacked that authority at the time of sentencing. If the trial Court did not have the power to make an order under section 3 or section 4 and subsequently passed an order that was not appealable, or if the convicted person chose not to file an appeal, then the provisions of subsection (3) could not be invoked. The reason is that it could not be properly said that the trial Court had declined to take action under section 3 or section 4. This observation strongly indicates that the jurisdiction conferred on the High Court or any appellate or revisionary court under section II is intended to be exercised only in cases that come before them in which the trial Court itself could have made an order under the Act.

The Court further noted that an order of admonition issued under section 3 effectively terminates the proceeding, becoming the final order against the convicted person, subject only to any modification by an appellate court if the person files an appeal. By contrast, an order under section 4 directs that the convicted person be released upon entering a bond to appear and receive sentencing when called upon within a period not exceeding three years, and to keep the peace and maintain good behaviour during that time. The sentencing for the offence is deferred, leaving the convicted person exposed to the possibility of a proper sentence being imposed later under certain circumstances.

Section 9 provides that if the convicted person fails to comply with the conditions of the bond, both he and his sureties may be summoned before the court, which may then remand him to custody or grant bail. If the court is satisfied that the conditions have been breached, it may immediately sentence the person for the original offence and, for a first‑time failure, impose a penalty not exceeding rupees 50 without prejudice to the continuing force of the bond. Consequently, a person who cannot observe the bond conditions may endure a harsher punishment than he would have received initially, especially when he had, for a period, complied with the bond, paid compensation to the victim pursuant to section 5, and borne the costs of the proceedings that are recovered as a fine. The Code of Criminal Procedure does not provide for payment of costs, but it does allow compensation to be ordered out of the fine imposed on an accused under sections 545 and 546A.

The Court examined the provisions of the Probation of Offenders Act that were considered in Ramji Missar v. State of Bihar (1). It held that the decisive date for applying sections 3, 4 and 6 of the Act to a case where the trial Court originally convicted an accused of offences not covered by those sections, but where an appellate Court later altered the conviction to an offence covered by the sections, is the date of the trial Court’s decision. This determination was based on logical reasoning and on the view that the appellate order should be regarded as the correct order that the trial Court ought to have made. The Court observed that this reasoning supports the view it had previously expressed. It also noted that, in the Ramji case, the trial Court could have issued an order under section 4 of the Act at the time it convicted a young person who was then under twenty‑one years of age, if the conviction had been for an offence to which section 4 applied. The High Court in that case altered the conviction to such an offence but held that it lacked competence to pass an order under section 6 of the Act. The Supreme Court disagreed and held that the High Court did have such competence. In the present matter, the trial Court was unable to act under the Act because the Act was not in force on the date it convicted the appellant. Consequently, the Court found that the question of whether an appellate Court may make an order under the Act when the trial Court, on the date of conviction, could not have made such an order, did not arise for decision in the earlier case. The Court emphasized that this question is distinct from the issue resolved in Ramji’s case, where the appellate Court altered the conviction to an offence for which the trial Court could have exercised the statutory power. Accordingly, the Court concluded that the High Court could not constitutionally make an order under the Act in the present case and that the appellant’s appeal must therefore fail.

In accordance with the majority opinion, the Court set aside the order of the High Court and directed that the High Court make an order under section 6 of the Probation of Offenders Act, 1958. Alternatively, the Court permitted the High Court to remit the matter to the Sessions Court for the purpose of issuing such an order. The appeal was allowed on this basis.