DEVI Vs. STATE OF M P

JUDGEMENT

(1.) The conviction and sentence of the two petitioners stood confirmed in appeal preferred by them against the order of conviction and sentence passed by Magistrate 1st Class, under Section 509, I.P.C. to 4 months S.I. (though in the impugned order it has been described as R.I.).

(2.) According to the prosecution, on 24/7/1982, while the complainant Mewa Bai (P.W. 1) was returning to her house after purchasing Kerosene oil, the two petitioners asked her for sexual intercourse by saying Bur De De, to which she abused them and on reaching home, she narrated the, incident to her mother Halki Bahu (P.W. 3). The report Ex. P.1 was lodged with police and after the investigation a challan was filed under Section 509, I.P.C. against the accused/petitioners.

(3.) The bone of contention of Shri Kochar, counsel for the petitioners in this revision is that the age of accused/petitioners being below 21, years, they could not be sentenced to imprisonment as the offence was not punishable by death or life imprisonment and therefore they deserved the benefit of Section 6 of Probation of Offenders Act, 1968 (hereinafter referred to as Act). Shri Kochar further submits that the provision operates as an injunction against the Court for sentencing an accused aged under 21 years to a sentence of imprisonment. Section 6 of the Act may be reproduced with profit: 6. Restrictions on imprisonment of offenders under twenty-one years of age (1) when any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which/the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it should not be desirable to deal with him under section 3 of section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 4 with an offender referred to in sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any, other information available to it relating to the character and physical and mental condition of the offender.It is manifest from the plain reading of Section 6 that the age of the accused relevant to this provision, would be the age on the date when he is to take the sentence. The age at the time of commission of the offence is not material for the section. The words when any person under 21 years of age is found guilty denote that the accused on the date of order of conviction, when he is found guilty, ought to be under 21 years, so as to attract the operation of the section. The crucial date for reckoning age would be the date on which trial Court had to deal with the offender as held by Supreme Court in Ramji Misser v. State of Bihar. Admittedly, the petitioners Nos: 1 and 2 were aged 19 and 20 years respectively at the time of commission of offence in the year 1982, but when the order of their guilt was passed on 29/4/1988, by the trial Court they were aged more than 25 years. Section 6, draws a distinction between the accused, aged more and less than 21 years. It is only under Section 4 of the Act that no distinction is drawn in this regard and it applies to accused of all ages, subject to certain conditions specified therein. It would be relevant to reproduce Section 4 which reads thus: