Facts of the case.— In Jai Narain v. Municipal Corporation of Delhi1, an inconsistency has crept in the point raised on the appellant's behalf, in the formulation of the question for decision by the Supreme Court and in the answer thereto by the Supreme Court. The appellant Jai Narain was an employee in a sweetmeat shop at New Delhi. On March 15, 1967 a Food Inspector of the Municipal Corporation of Delhi purchased "Patisa" from him which, according to the report of the Public Analyst, were prepared with unpermitted coaltar dye. The presence of unpermitted coaltar dye rendered patisa adulterated under Section 2(i)(j), read with Rules 28 and 29 of the Prevention of Food Adulteration Rules, 1955. Its sale is prohibited under Section 7(i) and is at penal offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. Under Section 16(1)(a) the offence is punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than Rs 1000. The appellant was found guilty by the trial Magistrate under Section 7(1), read with Section 16(1) of the Act and sentenced to simple imprisonment for a period of six months and a fine of Rs 1000, in default, imprisonment for a further period of three months. On an appeal by the appellant, the Additional Sessions Judge reduced the sentence of imprisonment to the period of imprisonment already undergone by the appellant before he was granted bail. The order of fine was maintained. In revision by the Municipal Corporation, the Delhi High Court restored the order of sentence passed by the trial Magistrate. The High Court, however, granted a certificate under Article 134(1)(c) of the Constitution and the appellant filed the appeal in the Supreme Court on the strength of that certificate.
As recited in the Supreme Court judgment, the counsel for the appellant did not challenge the order of conviction or the order of sentence. "The only point raised by him was that the appellant should be given the benefit of Section 4 of the Probation of Offenders Act, 1958, under which the sentence of imprisonment awarded to the appellant could be dispensed with and an admonition should instead be given to him". In Para 7 of its judgment, the Supreme Court formulated the question, "whether we ought to apply, in the circumstances of the case and the nature of the evil to prevent which Section 16 of the Prevention of Food Adulteration was enacted, Section 4 of the Probation of Offenders Act and release the appellant from the sentence of simple imprisonment awarded to him with an admonition and a warning only" The Supreme Court (speaking through Shelat, J.) held that the appellant's activity being antisocial, "we do not thing that it would be either expedient or in consonance with the object with which the Prevention of Food Adulteration Act was passed to apply Section 4 of the Probation of Offenders Act." The Supreme Court dismissed the appeal. The question arises whether in the instant case, any court was empowered to release the appellant with an admonition and a warning only under the Probation of Offenders Act?
Probation of Offenders Act, Object of.—The Probation of Offenders Act, 1958 (No. 20 of 1958) is, "An Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith." The statement of objects and reasons of the corresponding Bill No. 79 of 1957 states. "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 jail life.2 In Ratanlal v. State of Punjab,3 Subba Rao, J. (as he then was) speaking for the majority observed that the Probation of Offenders Act, "is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of Criminal Law is more to reform the individual offender that to punish him." In Isherdas v. State of Punjab, (noticed in Jai Narain case) the Supreme Court held that the Probation of Offenders Act was applicable to the offences under the Prevention of Food Adulteration Act, 1954. In Jugal Kishore Prasad v. State of Bihar,4 decided a week before Jai Narain case and by the same Bench, the Supreme Court (speaking through Khanna, J.) observed that the object of the Probation of Offenders Act, "is in accordance with the present trend in the field of penology, according to which efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that a good many crimes are the product of socio-economic milieu."
Supreme Court Judgment, Inconsistency in.— In the Act, it is Section 3 (and not Section 4) which provides for "Power of Court to release certain offenders after admonition", while Section 4 provides for "Power of Court to release certain offenders on probation of good conduct". The relevant portion of Section 3, reads, "When any person is found guilty of having committed . . . any offence punishable with imprisonment for not more than two years, or with fine or with both, under the Indian Penal Code or any other law, . . . then notwithstanding anything contained in any other law of the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition." Therefore, under Section 3, the accused can be released after due admonition only if the offence is punishable with imprisonment for not more than two years under any other law. The Prevention of Food Adulteration Act, 1954, is any other law but the offence under Section 16(1)(a) under which the appellant was convicted and sentenced is punishable with imprisonment which may extend to six years. In the circumstances no Court was empowered to release the appellant after due admonition and a warning only and this was the short, simple and complete answer to the relief sought on the appellant's behalf. The Supreme Court while actually posing the question in terms of Section 3 (and not Section 4) did not consider and answer it in terms thereof. Section 3 was inapplicable in the instant case and hence the question whether it would be either expedient or in consonance with the object with which the Prevention of Food Adulteration Act, was passed to apply Section 3 would not arise. No relief for release, on bond, on probation of good conduct was sought on behalf of the appellant under Section 4, the question was not posed by the Supreme Court in terms of Section 4, all the factors relevant under Section 4 have not been considered by the Supreme Court. Section 4 does not empower any court to release the offender with an admonition and a warning only. The mention of Section 4 in the judgment is inappropriate. If the Supreme Court was considering the question whether the appellant should be given the benefit of Section 4, the question to be argued, formulated, considered and answered would be: Whether the appellant should be released on bond, on probation of good conduct and not whether he should be released from the sentence after an admonition and a warning only? The Supreme Court posed the question whether under Section 4, the appellant should be released from the sentence of imprisonment? Even if the appellant were to be given the benefit of Section 4, he could not be released from the sentence straightaway, the sentence would remain suspended and on the fulfilment of the terms of the bond, he would be released from the sentence. The release under Section 3, after due admonition, is a release straightaway from the sentence. In a given case where both Sections 3 and 4 of the Probation of Offenders Act, 1958, are applicable, a court not inclined to grant to the accused the benefit of Section 3 may yet grant to him the benefit of Section 4. In a given case whereunder Section 3 is inapplicable but Section 4 is applicable, the Court may yet grant to the accused the benefit of Section 4. The grant of the benefit of Section 4 to the accused is a matter of judicial discretion and naturally does not admitted of being circumscribed into a strait-jacket so as to defeat the section.
Admonition v. Probation.— In re: Salem Govindappa Chetty5, the Andhra Pradesh High Court released the accused on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, though the accused was convicted under Section 16(1)(a) of the Act of the Prevention of Food Adulteration Act, 1954 on a charge of selling Mysorepak (sweet) containing non-permitted coaltar dye metanil yellow, and even though the accused therein was the owner of the shop, while Jai Narain was the employee. The appellant Jai Narain pitched his tent too high in praying for release after due admonition. He prayed for the relief which even the Supreme Court was not empowered to grant, Section 3 being inapplicable. There is a sharp distinction between release after due admonition under Section 3 and release, on bond, on probation of good conduct under Section 4. It is true that under Section 12 of the Act release under Section 3 or Section 4 is not a disqualification attaching to a conviction of an offence. In case of release after due admonition, the sword does not remain hanging on the accused. The fact that such an order may be set aside under Section 11(4) is a different matter while in case of release on a bond on probation of good conduct the sentence is merely suspended and the sword remains hanging on the accused till the expiry of the bond and in the event of the accused failing to observe the conditions of the bond, he is liable to be dealt with under Section 9, that is, he may be sentenced for the original offence or a penalty may be imposed upon him.
Ratio.— We submit that the Supreme Court judgment in the instant case is not an authority for the purpose of Section 3 or Section 4 of the Probation of Offenders Act, 1958 vis-a-vis the offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. In our submission there is no ratio because of the inconsistency and that is fatal to the final conclusion (Para 9 of the judgment).
Comments
The above article written by Lajvanti v. Ganatra, Advocate, High Court, Bombay and
V. B. Ganatra, Advocate, Supreme Court of India in https://www.ebc-india.com/lawyer/articles/73v1a4.htm is self explanatory. The authors have excellently pointed out the error committed by the top court in framing the question to be determined. Having said that I wonder who will monitor Supreme Court if it is vulnerable to such errors. I do know having gone through several judgments of the Supreme Court that it does not normally commit error of judgment such as this one, but even if one judgment goes wrong it means a lot for the parties whose last resort is the Apex court.
In this context I would like to bring it to your notice the comments made by Prashan Bhushan in his recent visit to Hyderabad of having the the Lawyerless Courts. I do not understand what he mean by that but I do endorse his views that there must be a check on Judiciary too and people should not be scared by contempt of court proceedings by the courts if they point out corruption in judiciary. This has nothing to do with the above article but it makes us think about where lies the remedy for a common man.
What can be inferred from the above judgment is that some client had visited a Supreme Court Advocate and he presented arguments without properly reading Sections 3 and 4 of Probation of Offenders Act, and keeping confidence in him the Court also did not go through the sections properly and committed the above error pointed out by the learned Advocates who had posted the Article. What is unfortunate is the Advocate who represented this case would have got his money from the client and he might have been told, "I tried my level best but you lost the case", by the concerned Advocate. He does not know law hence he might have thought what the Advocate told is correct. It is because the people who had written the above Article are Advocates they could locate the error in judgment. Ordinary people would pay money to advocates and forget and accept the top court judgment as correct, and that is law of land as well and so even if top court makes any mistake, the ordinary persons have no other go.
Assuming that some educated person like you and me have located such error in judgment, what is the remedy for us? We may go for revision ofcourse. But if there also same quality of judgment is found, we cannot go to Consumer forum for lack of quality in judgments because the judgment is given by the highest court of the country and one may merely have opinions on it but they can not sit in judgment of it. That is where we need a machinery to monitor Supreme Court as well and nobody is more competent than Supreme Court to formulate the legal framework and guidelines the ordinary people to follow if the judgment of top court is glaring into eye with error apparant on the face of it.
