MOHD. HASHIM v. STATE OF UP & Ors.

Judgment

9 S.C.R. 953 MOHD. HASHIM A v. STATE OF UP & ORS. (Criminal Apneal No. 1218of2016) NOVEMBER 28, 2016 [DIPAK MISRA AND AMITAVA ROY, JJ.] Probation of Offenders Act, 1958 - s.4 - Powers of Court to release certain offenders on probation of good conduct - Extension of such benefit, only when offences under which conviction is done does not prescribe for minimum sentence - Held: Minimum sentence means a sentence which must be imposed without leaving any discretion to the court - Howeve1~ if the legislation prescribes a minimum sentence but grants discretion, the Courts, for reasons to be recorded in writing, may mvard a lower sen~ence or not award a sentence of imprisonment - A provision that gives discretion to the · Court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence - On facts, offences under which respondents were convicted do not prescribe minimum sentence, hence, the provisions of the PO Act would apply - Howeve1; before exercising power uls. 4 of the PO Act, the Court has to keep in view the nature of offence and the conditions incorporated therein - Matter accordingly remitted to the appellate court (Sessions Judge) for disposal in accordance with law - Dow1y Prohibition Act, 1961 - s.4 - Penal Code, 1860 - ss. 323 and 498-A. Allowing the appeal, the Court HELD: 1.1 The respondents were convicted under Sections 323 and 498-A, IPC and under Section 4 the Dowry Prohibition Act, 1961. On a plain reading of Section 323 and 498-A, IPC, it is quite clear that there is no prescription of minimum sentence. Further, the contention raised by the appellant with reference to Section 4 of the 1961 Act that the legislature has stipulated for - imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence, cannot be accepted. (Paras 2, 18 and 19][956-A; 963-D, G-H] 953 c D E F G H 954 SUPREME COURT REPORTS [2016] 9 S.C.R. . 2. When the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In sucli cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be. recognized and accepted for the Prohibition of Offenders Act, 1958Act. When there is no minimum sentence, the provisions of the PO Act would apply [Para 19)(964- A-D]

3.1 However, the Court before exercising the power under Section 4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under Section 4 of the PO Act. [Para 23)(965-G]

3.2 In the present case, the appellate court (Sessions Judge) has exercised the jurisdiction in a perfunctory manner. The matter is remitted to the appellate court for disposal in accordance with law. The court has to be guided by the provisions of the PO Act and the precedents of this Co.urt. It will be open for the respondents-convicts to raise all points before the appellate court on merits including seeking release under the PO Act. [Paras 24, 25 and 26)(967-B-D]