Offender may be release on probation even before serving mandatory minimum sentence as prescribed under IPC

Lakhvir Singh etc. v The State of Punjab and Anr.

CRIMINAL APPEAL NOs.47-48 OF 2021 decided on January 19, 2021

BENCH- Sanjay KishanKaul, Hrishikesh Roy, JJ.

FACTS

Appellants in the present case were found guilty of assaulting the complainant. They were subsequently convicted under Section 397/34 IPC and sentenced to undergo rigorous Imprisonment of 7 years each. However, at time of commencement of crime the accused were found to be youngsters aging 19 and 21 years. By the time the dispute reached the Supreme Court both the parties had amicably settled the dispute and the complainant had no objection as to either the appellants are released on bail or probation. However the State submitted that the minimum punishment prescribed under Section 397 IPC is 7 years and accused could not be released before serving the minimum punishment as prescribed under statute.

ISSUE

Whether the court has authority to release  an offender on probation before the completion of minimum sentence as prescribed by the statute?

HELD

The Supreme Court answered the question in the affirmative relying on Section 4 of Probation of Offender Act, 1958 (hereinafter referred as Act) where it is stated that an offender may be probated.The Court further said that for application of section 4, the offender should not be convicted of an offence which is sentenced with death penalty or life imprisonment and in interim accused has to maintain good conduct and behaviour. Further the court observed that inclusion of non-obstante clause while drafting the section implies that legislative intention behind drafting the provision should be interpreted liberally. In the present factual matrix accused had not been convicted of offence resulting in death penalty or life imprisonment, he had also served half the sentence and amicably settled dispute with complainant as proof of good behaviour. Hence the court ordered  release of the accused on probation of good conduct under Section 4 of the said Act.

See Section:

[Section 4 in The Probation of Offenders Act, 1958

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 the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.]