is impossible to reform and rehabilitate the offender after examining the matter
with due regard to the age, character and antecedents of the offender and the
circumstances in which the offence was committed. This is some indication by
the Legislature that reformation and rehabilitation of offenders, and not mere
deterrence, are now among the foremost objects of the administration of
criminal Justice in our country. The personality of the offender as revealed by his
age, character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in determining
the sentence to be awarded. Special reasons must have some relation to these
factors.10
Enforcement of Probation Act in some particular area excludes the applicability of
the provisions of Sections 360, 361 of the Code in that area. 11 The aforesaid
position
was
highlighted
in
Chhanni
v.
State
of
U.P.
MANU/SC/8216/2006MANU/SC/8216/2006 : 2006CriLJ4068 and Daljit Singh and
Ors.
v.
State
of
Punjab
MANU/SC/8238/2006MANU/SC/8238/2006
:
(2006)6SCC159 .
Under Section 361 of the new Code, provision has been made for recording
special reasons in judgment for not dealing with an accused under Section 360 or
under the provisions of the Act in cases where the Court could have dealt With
such an accused under Section 360 of the new Code or under the provisions of
the Act or with a youthful offender under the Children Act, 1960, or any other law
for the time being in force for- the treatment, training or rehabilitation to youthful
offenders. A perusal of Section 360(10) of the new Code shows that the
Parliament had in mind the provisions of the Act, while enacting Section 360 of
the new Code.12
Undoubtedly, , under Section 361 of the new Code, reasons are to be recorded
for not dealing with an accused under the Probation of Offenders Act, if the Court
could have dealt with that accused under the Act. These provisions in Section
361, Cr. P.C. read with the provisions in Section 360(10), Cr. P.C. cannot make
inoperative the provisions hi Section 19 of the Act, which create a bar for
invoking Section 360 Cr. P.C. to a State or a part of a State wherein the Act has
been extended by a State.13
Distinction between POA and CrP.C. provisions of Probation
Where the provisions of the P.O. Act are applicable the employment of Section 360 of
the Code is not to be made. In cases of such application, it would be an illegality
resulting in highly undesirable consequences, which the legislature, who gave birth to
the P.O. Act and the Code wanted to obviate. Yet the legislature in its wisdom has
obliged the Court under Section 361 of the Code to apply one of the other beneficial
provisions; be it Section 360 of the Code or the provisions of the P.O. Act. It is only by
providing special reasons that their applicability can be withheld by the Court. The
comparative elevation of the provisions of the P.O. Act are further noticed in Sub-section
(10) of Section 360 of the Code which makes it clear that nothing in the said Section
shall affect the provisions of the P.O. Act. Those provisions have a paramountcy of their
own in the respective areas where they are applicable.14
It is note-worthy that Section 361 of the New Code of Criminal Procedure makes
it incumbent upon a Court, if it does not want to deal with a case of an accused
person either under Section 360 of the Code of Criminal Procedure or under the
provisions of the Probation of Offenders Act (1958), to record special reasons in
the judgment for not having done so. There was no analogous provision in the
Old Code. The spirit of the Legislation now is that the twin beneficial provisions
should alternatively be available to every Court be it whether in the form of
Section 360 of the New Code or in the form of the provisions of the Act.
12. Having drawn such distinction between the spheres of the aforesaid two
provisions, it is of utmost importance that the trial Magistrates functioning in
their respective areas be well on guard for the applicability of the provisions
applicable for their areas and not the other. They have to bear in mind the
distinction so that where the provisions of the Act are applicable the employment
of Section 360 of the New Code be not made. In cases of such application, it
would be an illegality resulting in highly undesirable consequences, which the
legislature, who gave birth both to the Act and the Code, wanted to obviate. Yet
the legislature in its wisdom has obliged the Court under Section 361 of the New
Code to apply one or the other beneficial provisions; be it Section 360 of the New
Code or the provisions of the Act. It is only by providing special reasons that their
applicability can be withheld by the Court. The comparative elevation of the
provisions of the Act are further noticed in Sub-section (10) of Section 360 of the
New Code which makes it clear that nothing in the said section shall affect the
provisions of the Probation of Offenders Act, 1958, Those provisions have a
paramountcy of their own in the respective areas where they are applicable. 15
But in a more recent decision(that of Sanjay Dutt) SC feels thatSection 360 of the Code of Criminal Procedure does not provide for any role for
probation officers in assisting the courts in relation to supervision and other
matters while the Probation of Offenders Act does make such a provision. While
Section 12 of the Probation of Offenders Act states that a person found guilty of
an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act,
shall not suffer disqualification, if any, attached to the conviction of an offence
under any law. The Code of Criminal Procedure does not contain parallel
provision. Two statutes with such significant differences could not be intended to
co-exist at the same time in the same area. Such co-existence would lead to
anamolous results. The intention to retain the provisions of Section 360 of the
Code and the Probation of Offenders Act as applicable at the same time in a
given area cannot be gathered from the provisions of Section 360 or any other
provisions of the Code.16
Important in case of food adulterationIt must be remembered that adulteration is an economic offence prompted by
profit motive and it is not likely to lend itself easily to therapeutic treatment by
the probationary measure. It may be pointed out that the Law Commission also
in its Forty Seventh Report recommended the exclusion of applicability of the
probationary process in case of social and economic offences and presumably in
response to this recommendation, the Legislature has recently amended the
Prevention of Food Adulteration Act, 1954 by introducing Section 20AA
providing that nothing contained in the Probation of Offenders Act,
1958 or Section 360 of the CrPC, 1973 shall apply to a person convicted
of an offence under the Act unless that person is under eighteen years
of age.17
The Order of release on probation is merely in substitution of the sentence to be
imposed by the Court. This has been made permissible by the statute with a
humanist point of view in Order to reform youthful offenders and to prevent them
from becoming hardened criminals. The provisions of Section 9(3) of the Act
extracted above would clearly show that the control of the of fender is retained
by the criminal Court and where it is satisfied that the conditions of the bond
have been broken by the offender who has been released on probation, the Court
can sentence the offender for the original offence. This clearly shows that the
factum of guilt on the criminal charge is not swept away merely by
passing the Order releasing the offender on probation. Under Sections 3,
4 or 6 of the Act, the stigma continues and the finding of the misconduct
resulting in conviction must be treated to be a conclusive proof. In these
circumstances, therefore, we are unable to accept the argument of the
respondents that the Order of the Magistrate releasing the offender on probation
obliterates the stigma of conviction.18
Judicial view in Sanjay Dutts case:
In the case of Sanjay Dutt, the Designated Court took a view on the basis of his
own confession that the weapons were not acquired for any terrorist activity but
they were acquired for self-defence, therefore, acquittal was recorded in respect
of charge under Section 5 of TADA.
Arguments seeking probation:
1) Though the prosecution involved him in Bombay Bomb Blast Case that he
had knowledge as to the conspiracy and had kept in his possession fire
arms and ammunitions as well as hand grenades knowing that the same
were from the consignment that had landed for use in the said Blasts, the
fact remains that the Designated Court did not accept the prosecution
story against him and rejected his involvement in the conspiracy as well as
any knowledge of the events as charged. The TADA Court has also held
that the prosecution has failed to prove that the alleged arms in
possession of the Appellant were from the same alleged consignment that
was used in the said blasts.
2) It was also contended from the side of the Appellant that in the year 199293, the Appellant and his family members were involved in helping people
residing in riots affected areas, more particularly, Behrampada,
predominantly having a Muslim population which was objectionable to
certain group of persons who were of the opinion that the Dutt family was
sympathizers of only the Muslim community. In fact, this leads to an attack
on Sunil Dutt in January, 1993 as well as threatening phone calls were
being received at their residence, including threats to the family members
being killed as well as the sisters of the Appellant being kidnapped and
17 Prem Ballab and Anr. V. The State (Delhi Admn.), AIR1977SC56
18 The Divisional Personnel Officer, Southern Railway and Anr. V. T.R. Chellappan
and Ors., AIR1975SC2216
raped. This lead to a great and serious apprehension that an attack could
be perpetrated upon the Dutt family in view of the fact that Shri Sunil Dutt
had already been attacked.
3) He asserted that he is not a habitual offender, and is not likely to commit
any offence in future. The TADA Court did not get any opportunity to
complain about the conduct of the Appellant in 19 years. He further
submitted that he has also suffered the agony of long trial of 13 1/2
(thirteen and a half) years. The stress and trauma of the same, besides
the fact that he has carried the tag of an alleged terrorist for 13 1/2
(thirteen and a half) years though unwarranted, and has been deprived of
the company of his daughter, is a punishment in itself. He has also stated
that he had suffered mentally, physically and emotionally in the last
several years.
4) He got married again in the year 2008 and is blessed with two children
aged 1 and 1/2 years and they need their father's presence in their life. He
further submitted that he has been actively involved in an AIDS charity
and raises funds for the free treatment of aids patients who cannot afford
the same, besides visiting the hospitals/centres. It is further submitted
that he is on the Board of Directors of "Save the Children Foundation" and
helping in raising funds for children who are needy, orphaned and
destitute as their Brand Ambassador for a long time, even prior to his
being charged in this case.
Judgements relied upon by the Counsel on behalf of Sanjay DuttSocial background and the personal factors of the crime-doer are very
relevant although in practice Criminal Courts have hardly paid attention to
the social milieu or the personal circumstances of the offender. 19
The object of the Act (Probation of Offenders Act) is to prevent the
conversion of offenders into obdurate criminals as a result of their
association with hardened criminals. The above object is in consonance
with the present trend in the field of penology, according to which, efforts
should be made to bring about correction and reformation of the individual
offenders and not to resort to retributive justice. 20
The scope of Section 4 of the Probation of Offenders Act is much wider. It
applies to any person found guilty of having committed an offence not
punishable with death or imprisonment for life. 21
Decision: The circumstances and the nature of the offence as
analysed and discussed above are so serious and we are of the
view that they do not warrant A-117 the benefit of the provisions
of the Probation of Offenders Act, however, taking note of various
aspects, we reduce the sentence to minimum period, viz., 6 years
to 5 years. The appeal is disposed of on the above terms.22
19 Ved Prakash v. State of Haryana, 1981 (1) SCC 447
20 Ratanlal v. State of Punjab, (1964) SCR 676
21 Chhani v. State of U.P., (2006) 5 SCC 396.
22 Sanjay Dutt (A-117) V. The State of Maharashtra, through CBI (STF), Bombay,
AIR 2013 SC 2687