Summary
The conviction of the deceased's mother-in-law and husband under Section 498A IPC, resting on concurrent findings of fact, was maintained, and the prayer to substitute imprisonment with fine was rejected because Section 498A makes fine additional, not alternative, to imprisonment. However, both the trial court and the High Court had omitted to consider probation. Holding that where the circumstances in Section 4(1) of the Probation of Offenders Act, 1958 are attracted a court has a mandatory duty to consider release on probation and to record reasons if it declines, the Court remitted the matter to the High Court to decide the question of probation after obtaining a probation officer's report.
Issues
- Whether the sentence of imprisonment imposed under Section 498A IPC could be set aside and replaced with an enhanced fine.
- Whether a court recording a conviction is under a mandatory duty to consider release of the offender on probation under Section 360 CrPC or Section 4 of the Probation of Offenders Act, 1958.
- Whether the High Court was justified in not extending the benefit of probation to the appellants.
Provisions considered
- Section 498A, Indian Penal Code, 1860The section punishes a husband or his relative who subjects a woman to cruelty with imprisonment up to three years 'and shall also be liable to fine'. Fine is therefore not an alternative to imprisonment, so the sentence of imprisonment could not be replaced by an enhanced fine; the concurrent finding of cruelty (occasional beating and abusing the deceased as a mental patient, per her dying declaration) was not disturbed. (¶¶ 2, 3, 6, 9)
- Section 360, Code of Criminal Procedure, 1973Permits release on probation of good conduct of an offender over twenty-one convicted of an offence punishable with fine or imprisonment up to seven years, with no previous conviction. Both courts below omitted to consider it. Compared with Section 4 of the Probation Act, it is narrower in coverage. (¶¶ 10, 11, 26, 27)
- Section 361, Code of Criminal Procedure, 1973Requires a court that could have dealt with an accused under Section 360 or under the Probation Act, but has not done so, to record special reasons. Being later legislation than the Probation Act, it engrafts the duty to record reasons for not applying the Probation Act as well. (¶¶ 12, 20, 26, 27)
- Section 4, Probation of Offenders Act, 1958Sub-section (1) allows release on probation of any person found guilty of an offence not punishable with death or life imprisonment, notwithstanding any other law, having regard to the circumstances including the nature of the offence and the character of the offender; it is wider than Section 360 CrPC and has overriding effect. Sub-section (2) requires the court to consider the probation officer's report, which is a condition precedent though not binding. (¶¶ 13, 21, 22, 26, 27, 28, 30, 31)
- Sections 1(3) and 19, Probation of Offenders Act, 1958The Act comes into force in a State on notification, and Section 19 then displaces Section 562 of the 1898 Code. On the Court's query, it was shown by reference to State v. A. Parthiban that the Act was brought into force in Tamil Nadu in 1964. (¶¶ 13, 14, 15, 19)
- Section 374(2), Code of Criminal Procedure, 1973The appellants' appeal to the High Court against their conviction by the Sessions Judge was under this provision; the High Court partly allowed it by reducing the second appellant's sentence. (¶¶ 1, 3)
Held
- Both the Sessions Judge and the High Court having returned findings of fact on appreciation of the evidence that the appellants were guilty under Section 498A IPC, the conviction was not interfered with. The deceased's dying declaration truthfully stated that no dowry was demanded (leading to acquittal under Section 304B) but alleged that the appellants occasionally beat her and abused her as a mental patient. (¶ 6)
- Section 498A IPC ordains imprisonment up to three years and that the offender 'shall also be liable to fine'; fine is not an alternative to imprisonment. Setting aside the sentence of imprisonment by enhancing the fine is therefore not permissible; what survives is the question of probation under the CrPC or the Probation Act. (¶¶ 8, 9)
- The orders on sentence of the Sessions Judge and the High Court show that both courts omitted, presumably inadvertently, to consider whether the appellants could be granted probation under Section 360(1) CrPC or Section 4 of the Probation Act. (¶ 10)
- Section 4(1) of the Probation Act is wider than Section 360 CrPC: it applies to any offence not punishable with death or life imprisonment, and its non obstante clause gives it overriding effect. Section 361 CrPC, a subsequent enactment, requires special reasons to be recorded where a court could have dealt with an accused under the Probation Act but did not. It follows from reading Section 4(1) with Section 361 that even where Section 360 CrPC is inapplicable, Section 4 of the Probation Act would be attracted. (¶¶ 26, 27)
- Summing up: an offender cannot claim probation as of right, but unless its applicability is excluded, where the circumstances in Section 4(1) of the Probation Act are attracted the court has no discretion to omit considering release on probation; a mandatory duty is cast on it to consider whether the case warrants such release. The question may be decided either way; if probation is granted the court may impose conditions after considering the probation officer's report, and if refused the court should record its reasons. (¶ 28)
- By omitting to consider whether the appellants were entitled to probation, the Sessions Judge and the High Court occasioned a failure of justice. Since under MCD v. State (NCT of Delhi) and State of M.P. v. Man Singh the probation officer's report under Section 4(2) is a condition precedent (though not binding on the court), the matter was remitted to the High Court for the limited purpose of considering probation after obtaining such a report, given that the appellants were first offenders, had committed no further crime in 17 years and had brought up the deceased's daughter, and had not spent a single day in prison. (¶¶ 4, 7, 29, 30, 31)
Result
Appeal disposed of; conviction under Section 498A IPC maintained; matter remitted to the High Court for the limited consideration of grant of probation to the appellants upon obtaining a probation officer's report; the Court's order dated 10 January 2020 exempting the appellants from surrender continues until the High Court decides; pending applications closed.