1. This judgment will dispose of the following criminal revisions, which are directed against the judgment dated 7-8-1974 of the Sessions Judge, Chandigarh:—
(1) Criminal Revision No. 838 of 1974, Jai Gopal v. State; (21 Criminal Revision No. 839 of 1974. Jai Gopal v. State: (3) Criminal Revision No. 840 of 1974, Jai Gopal v. State; (4) Criminal Revision No. 841 of 1974, Jai Gopal v. State; (5) Criminal Revision No. 842 of 1974. Jai Gopal v. State: (6) Criminal Revision No. 843 of 1974, Jai Gopal v. State.
2. The prosecution case is that Jai Gopal petitioner was in custody of C.I.A Staff. Chandigarh in connection with a case under Section 379.
3. Indian Penal Code, when on interrogation he made a disclosure statement on 26-5-1972 in the presence of Hari Singh and Wasdev to the effect that he had sold several bicycles to various persons at Nalagarh. Kalka. Surajpur and other places and could get the same recovered. As a result of this disclosure statement, Jai Gopal petitioner got recovered stolen cycles in each of those cases. Six separate cases under Section 411, Indian Penal Code, were registered against him and separate challans were filed against him. He did not plead guilty to the charge in all these cases. However, during the trial he made statements in all these six cases admitting the charge to be correct and in each of these six cases he was convicted by the Judicial Magistrate under Section 411, Indian Penal Code, and was sentenced to one year's rigorous imprisonment and to pay Rupees 200/- as fine and in default of payment of Sine to further undergo rigorous' imprisonment for three months. Feeling aggrieved. Jai Gopal filed Criminal Appeals Nos. 167. 168/169, 170, 171 & 172 of 1974 in the Court of Sessions Judge. Chandigarh to set aside his convictions and sentences in those cases. Since all these oases arose from one disclosure statement, the Sessions Judge disposed of all these six appeals by one judgment recorded in Criminal Appeal No. 167 of 1974. The learned Sessions Judge held that Jai Gopal was rightly convicted and sentenced and he dismissed all his appeals with the modification that out of the fine if paid a sum of Rs. 100/- in each case should be paid as compensation to the persons, whose cycles were stolen in these cases. Thereafter. Jai Gopal filed these six criminal revision petitions Nos. 838 to 843 of 1974. These revisions were admitted as regards sentence only by my order dated 12-9-1974. Notice was issued to the respondent for today.
4. Mr. S.K Pipat, the learned counsel for the petitioner contended that the age of the petitioner Jai Gopal was less than 21 years and, therefore without complying with the mandatory provisions of Section 6(2) of the Probation of Offenders Act, sentence of imprisonment could not be awarded to him and the same may, therefore be set aside.
5. In this case it is admitted that the age of Jai Gopal petitioner is less than 21 years. It was argued before the learned Sessions Judge by the counsel for the petitioner that he may be released on probation as he is only about 18 years of age and he had passed his pre-University examination and if he is now allowed to come out of the jail he can pursue his studies and reform himself, but this plea was rejected by the Sessions Judge with the following remarks:—
“It is no doubt the policy of the law to extend the privilege of release on probation to persons under 21 years of age but the appellant is clearly not entitled to this privilege when regard, is had to the fact that not only does he stand convicted in these five cases but there are two other cases in which he has been convicted besides being a previous convict before these seven convictions came to be recorded against him. It is these circumstances which must be taken into account and this is thus not a fit case for releasing the appellant on probation.”
6. The provisions of Section 6(2) of the Probation of Offenders Act No. 20 of 1958, (hereinafter called the Act) are mandatory. If the Court on conviction decides to release the accused on probation then the calling of the report of the Probation Officer under Section 6(2) of the Act is not necessary. However, if the Court decides to award punishment to a youthful offender whose age is less than 21 years, then the calling of the report under Section 6(2) of the Act is obligatory and after considering that report and also the circumstances of the case, the nature of the offence and the character of the offender, it can award the sentence of imprisonment and shall record reasons for the same.
7. Section 6 of the Probation of Offenders Act reads as follows:—
“(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 or 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 3 or 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.”
8. The object of the Probation of Offenders Act is to prevent the turning of youthful offenders into criminals by their association with the hardened criminals of mature age within the walls of a prison. The material date to determine the applicability of Section 6 of the Act is the date of decision of the trial Court when it convicts him. If an accused is convicted for an offence not (Punishable with death or imprisonment for life, then the Court has got power to release him on probation under Sections 3 and 4 of the Act. If the accused is less than 21 years of age at the time of his conviction by the trial Court the Court must release him on probation under Section 6 of the Act, but if the Court decides not to release him on probation, then it must call the report of the probation officer under Section 6(2) of the Act whose provisions are mandatory. If the report of the Probation Officer is not called and the accused is awarded imprisonment, the sentence awarded to him is illegal vide Rattan Lal Alias Ram Rattan v. State Of Punjab, AIR 1965 SC 444 : (1965 (1) Cri LJ 360); Ramji Missar v. State of Bihar, AIR 1963 SC 1088 : (1963 (2) Cri LJ 173): Daulat Ram v. State Of Haryana , (1972) 2 SCC 626 : AIR 1972 SC 2434 : (1972 Cri LJ 1517) and Harbhajan Singh v. Tarlok Singh, (1974) 76 Pun LR 26. Admittedly, the learned Sessions Judge in this case did not call for the report of the Probation Officer as enjoined under Section 6(2) of the Act and therefore the sentence of imprisonment and fine awarded to the petitioner in all these revision petitions is illegal and must be set aside.
9. In all these cases the judgment of the trial Court was pronounced on 14-6-1974. The (Petitioner was not released on bail during the pendency of his appeals in the Sessions Court. He is in jail since 14-6-1974. In a similar case the Hon'ble Judges of the Supreme Court in Rattan Lal's case, AIR 1965 SC 444 : (1965 (1) Cri LJ 360) (supra) set aside the order of the High Court and directed it to make an order under Section 6 of the Act or if so desired to remand it to the Sessions Judge for doing so. In the instant case the petitioner has already remained in jail for the last about three months. The petitioner was arrested by the police in May. 1972 and he made the disclosure statement on 26-5-1972 and got the bicycles in all these cases recovered from various persons, to whom these had been sold. Therefore, taking all these facts and circumstances into consideration I am of the considered view that it is a fit case to release the petitioner on probation. I, therefore, partly accept these revision petitions and set set aside the sentences of imprisonment and fine awarded to Jai Gopal petitioner in all these cases and direct that he be released on probation in all, these cases on his executing a bond for Rs. 1.000/- with one surety in the like amount in each case to keep peace and be of good behaviour for a period of six months and to appear and receive sentence when called upon during such period.
10. Order accordingly.