Govindammal vs Senga Gounder (died) and others

Ratnavel Pandian, J.—The revision-Petitioner, who was the complainant before the trial Court, is canvassing the correctness of the action of

the learned Additional Sessions Judge, Salem Division, in releasing the Respondents-accused 1 to 3, 5 and 6, u/s 4(1) of the Probation of

Offenders Act, after confirming the conviction of the Respondent No. 1 of an offence u/s 494, I.P.C., read with Section 17 of the Hindu Marriage

Act and Respondents 2, 3, 5 and 6 u/s 494 read with S. 109. These five Respondents, along with one Vellachi (accused No. 4 since discharged,

by the trial Court), were tried before the learned Additional I Class Magistrate No. II, Salem, in C.C. 120 of 1973, and convicted of the above

offences on the allegation that on 23rd March, 1973 at 7 a.m. at Anaikoundanur, the first Respondent, who is the husband of the Petitioner herein,

entered into a second marriage with accused-2 with the active assistance of the other Respondents, whilst his first marriage with the Petitioner was

subsisting. The trial Court found all the Respondents guilty of the offences with which they stood charged and convicted them thereunder and

sentenced them each to undergo rigorous imprisonment for two months. Aggrieved by the said judgment, the Respondents preferred an appeal in

C.A. 110 of 1973 before the learned Additional Sessions Judge, Salem, who, while confirming the convictions, released all the Respondents

under Section 4(1) of the Probation of Offenders Act, 1958, on their each entering into a bond to appear and receive sentence when called upon

during a period of one year and in the meantime to keep the peace and be of good behavior

The Petitioner in this revision-petition contends that the application of the provision of the Probation of Offenders Act is most inappropriate so

far as the offence of this nature is concerned and therefore that part of the order of the learned Sessions Judge should be set aside and instead they

must be sentenced to imprisonment. Learned Counsel appearing for the Respondents does not seriously dispute the concurrent convictions made

by the Courts below ,though the Respondents 2 to 5 have filed a revision petition in S R. No. 68708/74 against their convictions with a petition in

Cr. MP. 1857 of 1975 for excusing the delay of 257 days in the filing the said revision petition. The said petition to excuse the delay has been

dismissed by me today.

The only question of law, therefore, for consideration is whether the learned Sessions Judge was right in applying the provisions of Section

4(1)of the Probation of Offenders Act to this case and in not sentencing the Respondents to imprisonment.

The reasoning given by the learned Judge for invoking the provisions of the Probation of Offenders Act is as follows:

I think, having regard to the fact that the appellants (Respondents herein) are first offenders and are villagers, the ends of justice would be served

by modifying the sentence as hereunder.

S. 4 (1) of the Probation of Offenders Act reads as follows:

When any 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 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 notwithstanding anything contained in any other law for the time being in

force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without

sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the

meantime to keep the peace and be of good behaviour.

In the Object and Reasons of the enactment of this Act, it was stated as follows:

...in the meantime there has been an increasing emphasis on the reformation and rehabilitation of the offender as a useful and self-reliant member of

society without subjecting him to the deleterious effects of a jail life-During the period of probation, offenders will remain under the supervision of

Probation Officers in order that they may be reformed and become useful members of the society. The Act seeks to achieve these objects....

Thus, it is seen that the landable objective of probation service is two-fold(1) the rehabilitation of probationers, and (2) the prevention of

recurrence of crimes. The basic idea is that the offender redeems himself and is purged of the offence and the law helps him to help himself to erase

the stigma of conviction by keeping the peace and being of good behaviour for the stipulated period. In criminal law, the word ""probation"" means

the conditional suspension or imposition or execution of sentences by the Court in selected cases, especially of young offenders who are not sent to

prison, but are released on probation either after simple admonition as contemplated u/s 3 of the Act or on a bond, with or without sureties, to

keep the peace and be of good behaviour, as contemplated u/s 4. On the other hand it is a method of non-institutional treatment of offenders. In

both these types of treatment (under Ss.3 and 4 of the Act), it must appear to the Court that, having regard to the age, character, antecedents and

physical or mental, condition of the offender and to the nature of the offence, or any extenuating circumstances under which the offence was

committed, it is expedient to release him on probation, because in both the sections the words used are, ""having regard to the circumstance of the

case including the nature of the offence and the character of the offender......"" In other words, the Court must apply its mind to the circumstances of

the case including the nature of the offence and the character of the offender, before invoking the said provisions. The offender who is released on

probation u/s 4 of the Act, must agree to abide by certain conditions and in some cases be placed under supervision as provided for in that section,

and he must submit himself to appear and receive the sentence when called upon during the probationary period, and the said period under any

circumstances cannot exceed three years. Section 4 applies to more serious offences also and enables the Court to release an offender on

probation of good conduct having regard to the conditions enumerated under that section. Of course, the Court has very wide discretion; but in my

view, such discretion should be exercised wisely with a view to advance the objects of the Act. It is true, no opportunity to make an order u/s 4

should be lost if there is any likelihood of reforming and benefiting the offender. As the same time, there should be no indiscriminate use of the

method of probation, regardless of the circumstances of the case including the nature of the offence and the character of the offender. The

Supreme Court, in Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. 1974 S.C.W.R. 557 has elaborately discussed the object, purpose

and the social philosophy underlying the provisions of the Act and its applicability to offences. Their Lordships have observed that the object of the

Probation of Offenders Act is to nip the attitude of social defiance and recklessness on the part of the offender, in the bud; and that the probation is

a system which provides a means of re-education without the necessity of breaking up the offender''s normal life and removing him from the natural

surroundings of hit home. Their Lordships have further observed that while exercising the discretion, the rules of reasons and justice should be

followed.

Section 17 of the Hindu Marriage Act of 1955, which is the personal law of Hindus, says that any marriage between two Hindus solemnized

after the commencement of this Act, is void if on the date of such marriage, either party had a husband or wife living and the provisions of Sections

494 and 495 I.P.C. shall apply accordingly. Thus, the personal law not only makes the second marriage void, but also makes the parties to the

void marriage liable to be punished under the said provisions of the I.P.C. When such an enactment has come into force, the Respondents who are

Hindus must be deemed to have been aware of the said provisions. Therefore, violation of the said provision of their personal law committed by

them is clearly a deliberate disobedience of the law, and since they deliberately disobeyed the law, they have to be severely punished. In the instant

case, Respondents 1 and 2 have not only committed the offence in violation of the code of conduct prescribed by their personal law, but have also

stuck to such conduct by continuing their relationship. Therefore, the offenders viz., the Respondents cannot be said to be persons of high

principles and moral probity.

The offence is certainly a very serious offence, for which the punishment provided u/s 494, I.P.C., is seven years'' imprisonment and also fine. In

my view, the nature of the offence is such that the invocation of the Probation of Offenders Act would be quite inappropriate, and the release of

such an offender on the ground that be is a first offender and on the condition of his executing a bond, with or without sureties, for keeping the

peace and being of good behaviour etc., is meaningless. In cases of this nature, there cannot be any consideration whether he is a first offender or

not, and the question whether he will reform or redeem himself of the offence during the probationary period does not arise. Similarly, it is

inconceivable as to what is the supervision that the offender submits himself to in cases of this nature, if the court passes such a supervision order.

Further I am unable to understand what the Probation Officer is expected to supervise regarding the conduct or behaviour of the offender in these

cases. The main subject of the suspension of sentence for a specified period is to give an opportunity to the probationer to rehabilitate himself and

to prevent the recurrence of the crime. But, it is defeated in these cases since, as I have discussed above, when once the offender enters into such

a second marriage, it should be held that the offence is continuing. In that case, the execution of the bond by the offender that he will appear before

the Courts and receive sentence when called upon by the Court within the probationary period, serves no purpose .Above all, what is the peace

and good behaviour that is expected from such offenders as per the bonds executed by such people? In my opinion, no value can be attached to

such bonds executed by such offenders, undertaking to keep the peace and he of good behaviour. On the other band, the good behaviour

expected from a person, whose personal law prohibits bigamous marriages, is desisting from entering into a second marriage with another spouse

while the first legal marriage is subsisting. Moreover, by Section 494 , I.P.C, the Legislature has provided for a deterrent sentence, having regard

to the fact that bigamy is considered to be social evil and the defiance of such an enactment has to be viewed very seriously. For the above

discussion, therefore, 1 am of the view that the application of the provisions of the Probation of Offenders Act is quite inappropriate and highly

undesirable for offences of bigamy. In the result, the order of the learned Sessions Judge, releasing the Respondents u/s 4(1) of the Probation of

Offenders Act, is set aside.

Respondents 2 to 5 (accused 2, 3, 5 and 6) are now present in Court, as already directed by this Court. The first Respondent (accused I) who

is the main offender in this ease, is reported to have died on 6th April 1974, which fact has not been denied by the Petitioner herein. It is submitted

by the counsel that these Respondents are all poor agriculturists. Having regard to the fact that the first Respondent (first accused) is now dead and

the fact that these respondent are poor agriculturists, I am of the view that the that of justice would be met by imposing a lenient sentence-

Accordingly, I sentence Respondents 2 to 5 to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 10/-each. (The fine amounts

have been paid today).

The petition against the first Respondent has abated.

With the above modification with regard to sentence, the revision petition is allowed.