RATTAN LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal by special leave raises the question of jurisdiction of an appellate court to exercise its power under S. 6 of the Probation of Offenders Act, 1958 (Act No. 20 of 1958), hereinafter called the Act, in respect of an accused who was convicted by the trial court before the Act came into force.

(2.) The facts are not now in dispute. The appellant, a resident of Palwal in Gurgaon District, committed house trespass and tried to outrage the modesty of a girl aged 7 years. He was sent up for trial before the Magistrate, First Class, Palwal. The said Magistrate, on May 31, 1962, connected him under Ss. 451 and 354 of the Indian Penal Code and sentenced him to six month's rigorous imprisonment under each count and directed that the sentences should run concurrently. He further imposed a fine of Rs. 200/- on the appellant under S. 451 of the Indian Penal Code and ordered that, in default of payment of fine, he should undergo rigorous imprisonment for two months. The appellant was 16 years old at the time of his conviction. The Act was extended to Gurgaon District on September 1, 1962 and, therefore, at the time the appellant was convicted by the Magistrate, the Magistrate had no power or duty to make any order under the Act. The appellant preferred an appeal against his conviction and sentences to the Additional Sessions Judge, Gurgaon, who, by his judgment dated September 22, 1962, dismissed the appeal. Though by the time the Additional Sessions Judge disposed of the appeal the said Act had come into force, neither the appellant relied upon the provisions of the Act nor did the learned Additional Sessions Judge exercise his power thereunder. The revision filed in the High Court by the appellant was dismissed on September 27, 1962. The revision petition was dimissed in limine, but no ground was taken in the revision petition that the Additional Sessions Judge should have acted under S. 6 of the Act. After the revision petition was disclosed of, it appears that the appellant filed Criminal Misc. Petn. No. 793 of 1962 requesting the High Court to exercise its jurisdiction under S. 11 of the Act and to pass orders under Ss. 3, 4 or 6 thereof. The said application was also dismissed. Unfortunately the said application is not on the record and we are not in a position to know the exact scope of the relief asked for in the application and the reasons for which it was dismissed. The appellant filed a petition in the High Court under Art. 134(1)(c) of the Constitution for a certificate of fitness to appeal to this Court. One of the grounds for seeking such a certificate was that the High Court should have acted under S. 11 of the Act and passed orders under Ss. 3, 4 or 6 thereof. That petition having been dismissed, the appellant has preferred the present appeal to this Court by obtaining special leave.

(3.) Learned counsel for the appellant contends that, having regard to the admitted facts in the case, the High Court should have acted under S. 11 of the Act and released the appellant on probation of good conduct instead of sending him to prison. On the other hand learned counsel for the State argues that the Act is not retrospective in operation and, therefore, it will not apply to the appellant, as he was convicted before it came into force in Gurgaon District. Further, he contends that neither S. 11 of the Act nor S. 6 thereof, on the basis of the express phraseology used therein, can be invoked in the circumstances of the present case. In any view, he says that the appellant, not having raised this plea till after the revision petition was disposed of by the High Court, is precluded by his default to raise this contention at this very late stage.