KANDA KHADIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The learned single Judge hearing this criminal revision application thought it fit to refer the following question to a larger Bench as he was of the view that the decision of this Court in Girish Naik v. State of Orissa, (1994) 7 OCR 22, is not consistent with the Division Bench decision in Nalambar Sahu v. State of Orissa, 1990 (1) OLR 424 :-

(2.) The accused in this case has been convicted under Section 47(a) of the Bihar and Orissa Excise Act (for short, "the Act") and has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 5,000/-. Before the trial court, the question of application of the Probation of Offenders Act to the accused was not raised. In appeal before the court of session also, such a point was not raised. But, while the revision application was argued before the learned single Judge, a contention in the alternative was raised that the accused should be given benefit of probation. Our learned brother Pasayat, J. was of the view that the Division Bench of this Court in Nalambar Sahu's case has laid down that the benefit of the Probation of Offenders Act should not be extended to persons convicted for the offences under the Act as these offences are anti-social in character and are rampant in the society causing serious breach of peace and tranquillity. Because of this earlier Division Bench decision, it was not open to the learned single Judge hearing the case of Girish Naik to take a different view. In Girish Naik's case, this Court held that the nature of offence alone should not weigh while considering the applicability of Section 4 of the Probation of Offenders Act, but the character of the offender also is to be looked into. Pasayat, J. was not inclined to accept this view.

(3.) What we are required to consider is whether there is any conflict between the above mentioned two decisions of this Court. In Nalambar Sahu's case, it was found that the accused had stored illicit liquor in his house and that he was also selling the same. On the charge being proved, he was convicted under Section 47(a) of the Act. Before the High Court, a contention was raised that if it was not inclined to review the sentence of the accused, then he should be given the benefit of probation under the Probation of Offenders Act. What was urged on behalf of the accused in that case was that in view of his young age, he should be given that benefit. This Court found that at the time of commission of the offence, the accused was 30 years old and, therefor, he was not entitled to the benefit of Section 6 of the Probation of Offenders Act. This Court referred to the judgment of the trial court wherein the following observation was made :- "This sort of offence is anti-social in character and is rampant in the society causing serious breach of peace and tranquillity." Presumably, influenced by this observation in the trial court's judgment, this Court did not think it fit to interfere with the order of sentence or to give the benefit of probation to the accused. Though this Court was influenced by the fact that it was an anti-social offence, it cannot be said that this Court as a proposition of law laid down that if the character of an offence is anti-social, then no benefit available to the accused under the Probation of Offenders Act can be granted to him. Many offences specifically referred to in the Probation of Offenders Act are anti-social and yet the Legislature has thought it fit to extend the benefit of probation on the accused convicted of such offences. Therefore, this Court could not have laid down as a general proposition of law that whenever an accused is convicted of an offence, which is anti-social in character, he cannot be released on probation. Section 3 of the Probation of Offenders Act provides that when a person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him, the Court may, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, instead of sentencing the accused to any punishment, release him under probation. Section 4 provides that when a 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 the 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 it may release the accused on probation. The material words to be noted in Section 4 are "having regard to the circumstances of the case including the nature of the offence and the character of the offender." On a plain reading of Section 4, it can be said that all the relevant circumstances of the case are required to be taken into consideration for deciding whether the accused should be released on probation or not. No doubt, while deciding that question, the nature of the offence and the character of the offender are required to be borne in mind and the nature of the offence may play a major role. But, it cannot be regarded as the sole determinative factor for the purpose of deciding whether the benefit of probation should be given to the accused or not. If the nature of the offence is to be considered as the sole determinative factor, then the benefit of probation will have to be denied to an accused whose involvement may be quite small or who is found to be a victim rather than an author of the crime. Considering the object of the Probation of Offenders Act and the provisions made in that behalf, it becomes difficult to accept the contention that once the nature of the offence is found to be anti-social, the court cannot release an accused convicted of such an offence on probation. This Court, therefore, could not have intended to lay down, and, in our opinion, it has not laid down that if the offence is anti-social in character, then, as a matter of rule, benefit of the Probation of Offenders Act cannot be given to the accused convicted for such an offence. With due respect to our learned brother Pasayat, J., it has to be stated that the view expressed by him is not based upon a correct reading of that decision.