MAFALDINA FERNANDES Vs. STATE

JUDGEMENT

(1.) The Judicial Magistrate at Margao tried Mafaldina Fernandes on a charge under Section 380 I.P.C. and on the basis of plea of guilty entered by the accused he convicted and sentenced her on 29th of June 1967 to three months, rigorous imprisonment. The convict lodged an appeal in the Court of Session in which the only grievance made was that she being a first offender and a female of tender age, being 16, she should not have been denied the benefit of the provisions of Section 3 of the Probation of Offenders Act, hereinafter called the Act. Faced with Section 412 of the Criminal P. C., which shuts out appeal in a case founded on plea of guilty except in the matter of legality of quantum of sentence, the Sessions Judge decided to treat the memorandum of appeal as a petition for revision. He then made a reference to this Court recommending that the sentence be quashed and the case remanded to the trial court for determining if the provisions of Section 6 of the Act were attracted.

(2.) When the case came up before this Court for hearing on 22nd current, Shri Tamba, the learned Government Pleader, urged that it is not obligatory on the trial court to take into consideration the provisions of Section 6 of the Act even where the accused happens to be under 21 and as such no exception can be taken to the sentence imposed on the convict by the trial court. Shri Tamba also emphasised that the convict had stolen three gold chains from the house wherein she was employed as domestic servant and that since she had also disposed of a part of the stolen property it was clear that she had committed the offence after preparation and with deliberation and so she was not entitled to the benefit of the provisions of the Act. However, I have not been able to persuade myself into accepting the first submission made by Shri Tamba and the other submission I would leave open to be looked into by the trial court as ordered in the last part of this judgment.

(3.) Section 6 of the Act is in the following terms: