LexRAMJI MISSIR AND ANOTHER versus THE STATE OF BIHAR
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2 S.C.R. SUPRF.MF. COURT REPORTS 745 RAMJI MISSIR AND ANOTHER IV. THE STATE OF BIHAR (S . .J. IMAM, K. SuBBA RAo, N. RAJAOOl'ALA AYYANGAR and .J. R. MuDHOLKAH, JJ.) Probation of Offenders-Age of offenrler-Awlicability of Act-Di•cretion of High Court-Probation of Offender• Act, 1958 (:!O of 1958), ss. 3, 4, 6, 11. The appellants, R and B, who were brothers, were pro- secuted for having assaulted S who as a result suffered grievous injuries. Both the appellants were found guilty by the Assistant Sessions Judge, and sentenced to various terms of imprisonment. While B was convicted under ss. 307 and 326 of the Indian Penal Code, the conviction of R was under s. 324. Seotion 6 (1) of the Probation of Offenders Act, 1958, enacts : "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 .............. ". Though B was 19 years old, s. 6 (1) was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life. R, the elder brother, •vas aged 21, but the trial judge considered it inappropriate to afford him the benefit of the section on the ground that the act of assault was premeditated. On appeal, the High Court set aside the convictions of B and in ~heir place a finding of guilty under s. 324 of the Indian Penal Code was recorded for which a sentence of 2 years was imposed, and, as regards R, his conviction under s. 324 was maintained but the sentence was reduced from 2 years to 9 months. On the question of the applicability of the provisions of the Act to the accused, the High Court took the view (1) thats. 6 (1) was inapplicable to R because though he might have been under 21 years of age on the date of the offence he was not a person under 21 years when the Sessions Judge found him guilty, and (2) that though under s. 11 of the Act, the High Court was competent to make an order in favour of B, it was entirely discretionary for that Court to exercise the power conferred on it under that section, and that in view of the fact that the court below had already dealt with ·the matter, it was not desirable to deal with the case of the appellant under the pro- visions of the Act at that stage. 1962 Uecembrr, 6, 1962 Ra111ji Missir v. The Sfa/ i: oj· Bihar A;:vangar, J. 746 SUPREME COURT REPORTS [1963]SUPP. l ldrl : (I) that the ag-e referred to in s. 6 (I) of the l)rohation of Offenders Act, l 95B, is tliat when the court is deal .. with the ofTrndcr, that Leing ·the point of tiine \Vhen the court has lo choose het\\·een the t\\'O alternatives, \vhether to sentence tJie offender to imprison1ncnt or to apply to him the provisions of s, 6( l) of the Act. (2) that the courts mentioned in s. 11 of the Act, be they trial courts or courts exercising appellate or rcvisional jurisdiction, are cmpo\vercd to exercise the jurisdiction con- ferred on courts not only under ss. 3 and 4 and the con- &cq11cutial provisions but also under s. 6. (J) that the power conferred on appellate or other courts by s. 11 (I) of the Act is of the same nature and chara- cteristics an<l subject to the sa1ne criteria and lhnitations as that conferred on the courts under ss. 3 and 4. (4) that the provisions of s. 6. (I) restrict the absolute and unfettered discretion hnplied by the -word "may" in s. II (I), anc! the entirety ofs. 6 (I) applies to guide or con- dition the jurisdiction of the High Court under s. l l (!). (5) that the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when s. G becomes applicable to a person only on the decision of an appellate or a revisional court, is that upon which the trial court had to deal with the offender. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 144 of 1962. Appeal by special leave from the judgment and order dated l\fay 10, 1962, of the Patna High Court in Criminal Appeal No. 339of1961. B. K. P. Sinha and A.G. Ratnaparkhi, for the appellants. S. P. Varma, P. D. 1Jle1wn and R. N. Sach- tltey, for the respondent. 1962. December 6. The Judgment of the Court was delivered by AYYANGAR, J. - This appeal by ;pecial leave granted by us on September 7, l\l62, raises for 2 S.C.R. SUPREME COURT REPORTS 747 consideration the proper construction of ss. 6 an<l 11
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