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HC: Consider probation if jail less than 7 yrs 

Chandigarh, April 29

In a ruling that will change the way sentence is slapped on convicts in criminal cases, the Punjab and Haryana High Court has reminded the trial and appellate courts that it is mandatory to consider release on probation if the offence is punishable with fine or imprisonment up to seven years when the lawbreaker is above 21.

Considering release on probation is also mandatory when the offender is under 21, or is a woman, convicted for offence not punishable with death or life imprisonment and not previously convicted, the HC has added.

The ruling by Justice Harnaresh Singh Gill came on a bunch of three petitions by Rajwinder and others against the State of Punjab, challenging the one-year rigorous imprisonment sentence passed by the Bathinda Additional Chief Judicial Magistrate in May 2010. 

The Bench was told that the accused-petitioners were apprehended with a “large number of duplicate VCDs and obscene cassettes”. The state counsel had added that the VCDs were being supplied to markets in the city and surrounding areas.

Taking up the matter, Justice Gill asserted that Sections 360 and 361 of the Code of Criminal Procedure, in his view, would mandate a court to consider the release of an accused on probation. Referring to the provisions of Section 360, Justice Gill asserted it was clear that the court, instead of sentencing an offender at once to any punishment, may direct his release on probation.

This was when the person not under 21 was convicted for an offence punishable with fine only or with imprisonment up to seven years. It was also applicable where the offender, under 21 or a woman, was convicted for an offence not punishable with death or imprisonment for life, and previous conviction was not proved against the offender. 

This again was if it appeared to the court that the offender should be released on probation for good conduct with regard to his age, character or antecedents and the circumstances in which the offence was committed.

“The courts below have apparently ignored the provisions of Sections 360 and 361 of Code of Criminal Procedure. In view of the provisions, it was mandatory for the trial court, as well as the appellate court, to consider the case of the accused for their release on probation,” Justice Gill added.

Disposing of the petition, Justice Gill upheld the petitioners’ conviction, while setting aside their substantive sentence of imprisonment and ordering their release on probation. 

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