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Judgment
S. Palanivelu, J.—This Petition is filed u/s 482 Cr.P.C to extend the benefit of Probation of Offenders Act in order to release the petitioner/appellant under Sections 4 and 6 of the Probation of Offenders Act and direct the second respondent to release the petitioner/appellant.
The following are affirmed in the affidavit:
2.1. The petitioner is accused No. 7 in S.C.No. 137 of 2002 on the file of the Sessions Court, Nagercoil along with six other accused for the offences punishable under Sections 364 and 302 IPC read with 147 IPC. The said Court convicted them on 11.08.2003 under the said sections and imposed life sentence u/s 302 IPC and five years u/s 364 IPC on the accused. This petitioner preferred criminal appeal in C.A. No. 1311 of 2003 on the file of this Court and after hearing the appeal along with other appellants filed by the co-accused, this Court, on 19.2.2007, confirmed five years rigorous imprisonment imposed u/s 364 IPC and set aside the life sentence awarded by the Court below u/s 302 IPC, as far as this petitioner is concerned. This petitioner filed a SLP before the Hon''ble Supreme Court and the same was dismissed on 17.5.2007, The petitioner surrendered before the Sessions Court, Nagercoil, on 25.4.2007 and serving sentence of five years presently in Central Jail, Palayamkottai. His date of birth is 28.7.1980 and the date of offence is 18.7.2001. Hence, on the date of occurrence, his age was 20 years 11 months and 20 days and was below 21 years. Hence, the petitioner is entitled to the benefit of Sections 4 and 6 of the Probation of Offenders Act, 1958. Therefore, the petitioner may be directed to be released by the second respondent from the Central Jail, Palayamkottai.
Point for consideration :
Whether the petitioner is entitled to the advantages under Sections 4 and 6 of Probation of Offenders Act 1958?
Point :
The petitioner was arraigned as seventh accused in the case. He was convicted by the Sessions Judge along with the other accused on 11.8.2003 under Sections 302 read with 147 IPC and also u/s 364 IPC to undergo life imprisonment and also undergo rigorous imprisonment for five years respectively with a direction to pay tine. He preferred an appeal in C.A. No. 1311 of 2003 on the file of this Court and along with the other accused. The appeals came to be disposed of on 19.2.2007. A Division Bench of this Court set aside the sentence imposed upon him under Sections 302 read with 147 IPC and acquitted of those charges. However, he was found guilty u/s 364 IPC for the offence of kidnapping and the conviction and sentence imposed on him u/s 364 IPC were sustained. In view of the said background, it has to be seen whether he is eligible to receive the advantage of Sections 4 and 6 of the Act. It is profitable to extract Sections 4 and 6 of the said Act, which go thus :
Probation of Offenders Act, 1958
Power of Court to release certain offenders on probation of good conduct: (1) 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.
(proviso and Section 4(2) to (5) omitted)
...
Restrictions on imprisonment of offenders under twenty-one years of age : (I) 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 would not be desirable to deal with him u/s 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 u/s 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, any other information available to it relating to the character and physical and mental condition of the offender.
In order to get entitlement of the abovesaid provisions, the person should not have been found guilty of having committed an offence not punishable with death or imprisonment to life with reference to the age limit as provided in Sections 4 and 6 of the Act. If a person is found guilty by the Court of an offence punishable with imprisonment for life, he is certainly not entitled to obtain the benefits under the Act. It is stated in the affidavit that his date of birth is 28.7.1980 and the occurrence took place on 18.7.2001. Hence, on the date of occurrence, his age was below 21 years. The date of trial Court judgment was 11.8.2003. Before entering into the discussion with regard to the age limit to get the benefit, the import of the provisions has to be ascertained under which he was convicted by the trial Court and confirmed by this Court. Both the trial Court and this Court found him guilty u/s 364 IPC. The said provision reads as follows :
Kidnapping or abducting in order to murder : Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
The Section makes it clear that if a person is found guilty of kidnapping or abducting a person for the purpose of committing murder, he shall be punished with imprisonment for life also. The enlightening authority in the subject is the decision of the Hon''ble Supreme Court in Bala Baine Linga Raju Vs. State of A.P., , wherein Their Lordships have held as follows :
The appellant was charged with the commission of an offence u/s 302 of the Penal Code. He has been found guilty u/s 104 Part I thereof which provides for imprisonment for life or imprisonment of either description of a term which may extend to imprisonment for life. In mis view of the matter, the provisions of the Act are not applicable.
In the above said case, even though the accused was found guilty u/s 304 Part 1 IPC, the said Section also provides for sentence of imprisonment for life. Hence, it was held that the accused was not entitled to the benefit of the provisions of Probation of Offenders Act, 1958. The analogy could be made applicable to the present case also. Section 364 IPC enables the Court to hand down the sentence of imprisonment for life upon the accused. Hence, it is held that he is not entitled to get the provisions of Probation of Offenders Act, since he has been found guilty u/s 364 IPC.
In view of the above, we are of the considered opinion that the petitioner is not entitled for the relief of extension of profits under Sections 4 and 6 of the Act and the petition has to suffer dismissal.
In fine, this miscellaneous petition is dismissed. I Petition dismissed.