MOHD. HASHIM versus STATE OF UP & ORS.

Citation: [2016] 9 S.C.R. 953 · Decided: 28-11-2016 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016) 9 S.C.R. 953 
MOHD. HASHIM 
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 
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c 
D 
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H 
954 
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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] 
Shyam Lal Verma v. Central Bureau of Investigation 
(2014) 15 SCC 340 : 2013 (1) SCR 398; State Through 
SP, New Delhi v. Ratan Lal Arora (2004) 4 SCC 590 : 
2004 (1) Suppl. SCR 631; Arvind Mohan Sinha v. 
MOHD. HASHIM v. STATE OF UP & ORS. 
955 
Amulya Kumar Biswas (1974) 4 SCC 222 : 1974 (3) 
A 
SCR 133; Rattan Lal v. State of Punjab AIR 1965 SC. 
444 : 1964 SCR 676 - relied on. 
Superintendent, Central Excise,

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