Irretrievable Breakdown of Marriage.

“While there is no rose which has no thorns but if what you hold is all thorn and no rose better throw it away.”

                                                              J. Krishna Iyer in Yousuf v. Sowramma 1971 SC

 

          Hindu Marriage Act 1955 does not provide any ground of divorce based upon irretrievable breakdown of marriage. However Judicial institutions in India time and again has demanded such right to be incorporated in the statute. The basic object being to ease out the difficulties of spouses where marriage has been wrecked beyond the hope of salvage. Irretrievable breakdown means ‘such failure or such circumstances adverse to the matrimonial relationship that no reasonable probability remains for the spouses again living together as husband and wife’. 71st Report of Law Commission of India under the chairmanship of J. H.R. Khanna in 1978 recommended the Government to make it as a ground of divorce however as evident no effort was done to realize it. Similar recommendation was also made in the 217th report of Law Commission of India in 2009. Here it is remarkable to note that New Zealand via The (New Zealand) Divorce and Matrimonial Causes Amendment Act 1920 was the first country to introduce such concept whereby separation of three years between spouses allowed the other spouse to move Court of law for divorce.

 

Interpretation by Hon’ble Constitutional Courts in India:

 

           It was first in Naveen Kohli v. Neelu Kohli 2006 SC, Hon’ble Apex Court focussed to understand pragmatic realities of life and recommended the Union of India to incorporate irretrievable breakdown as a ground of divorce. Later in Anil Kumar Jain v. Maya Jain 2009 SC, top Court clarified that divorce on ground of irretrievable breakdown of marriage can only be granted by Supreme Court under Article 142 of Constitution of India and High Court does not have the same power. In the same year Supreme Court further held in Vishnu Dutt Sharma v. Manju Sharma 2009 SC, that Court itself cannot add ‘ irretrievable breakdown’ as ground of divorce under Section 13 of Hindu Marriage Act 1955 as that wound amount to amending the Act, which is a function of legislature.

 

Concept of Blending:

 

          In the case of Sandhya Kumari v. Manish Kumar 2016 DHC, Delhi High Court took a bold view and held the concept of cruelty has been blended by the Courts with the irretrievable breakdown of marriage. Delhi High Court has directly or indirectly read the breakdown of marriage concept with ‘Cruelty’ as ground of divorce under Section 13 sub clause (a). This bold view however can be seen from two perspectives. First, it may be seen as negation of doctrine of stare decisis as Apex Court has held in the case of Vishnu Dutt Sharma that Courts cannnot enter in the domain of legislature and Second, as dynamic judicial activism aiming at easing out the difficulties of parties due to absence of law. Decision of Delhi High Court can be both criticized as well as praised for the above.

                                

 Harihar Gupta

  LL.M. 

                                                                                   

 

                                                                                                

Impossible Attempt

                           Criminal Attempt is the stage when the offender has completed all the necessary steps required for the commission of an offence but the consequence has not taken place. There are four stages of commission of an offence i.e. Intention, Preparation, Attempt and Accomplishment. Criminal attempt relates to third stage. What makes Criminal Attempt jurisprudence remarkable is that generally in most offences it is mens rea which is ancillary to actus reus but here it is actus reus which is ancillary to mens rea. 

Object: 

          Article 38 of Constitution of India, mandates the Government to create a secure social order and promotion of welfare of people. Making an offence punishable at attempt stage is an endeavour in this direction. A welfare state is in pregnant obligation not only to punish the offender after commission of offence but to take appropriate steps to nip the evil in the bud itself. 

Essentials: 

    1. Specific intent to commit the crime. 

    2. An act towards the accomplishment of crime. 

    3. Failure of that act. 

Relation with Indian Penal Code, 1860: 

Under Indian Penal Code, 1860 (hereinafter IPC) Attempt can be of four kinds. Those are as under:

    1. When attempt and main offence punishable in same manner. 

              e.g. a.  S.121 Waging war against India (or attempt to do so)

                     b.  S.124A Sedition (or attempt to do so)

       

    2. When attempts are made separately punishable

              e.g. a. S. 307, 308 IPC etc. 

       

    3. When attempts are merged in main offence i.e. they form part of the same transaction.

                    These offences have been made punishable without using the word attempt.

             e.g. a. Assault S.351, b. Conspiracy S.120A, c. Abetment S.107 IPC etc. 

       

    4. General Attempts (S.511 IPC)                     

                 The fourth category caters regarding General Attempts. When there is no express provision in IPC we take help from S.511 IPC. Section 511 has a very limited scope. It is only applicable to offences which are punishable with Life Imprisonment or Imprisonment meaning thereby it excludes offences which are punishable with the death penalty or simple fine. In State of Maharashtra v. Mohd Yakub(1980 SCR (2) 1158) Supreme Court explained that in order to constitute attempt there must be three things.         

              

       a. Intention to commit particular offence. 

       b. Some act done towards commission 

       c. An act done must be proximate to the intended result.                              

Impossible Attempt: 

         Impossible Attempt is another dimension of criminal attempt jurisprudence. It relates to situations when though there was an attempt but the subject matter itself was absent. The theory is criticized also because it has no legislative basis. It's largely based on judicial decisions. Law Commission of India has in its 42nd Report 1972 recommended to delete S.511 IPC and add new Section 120C to clearly introduce offence of Criminal Attempt of general category. 

Impossible Attempts can broadly be divided in three parts.

    1) Legal Impossibility:

                 An attempt to commit an act which is not punishable by law.      

       e.g. a. Attempt to Adultery with an unmarried woman. 

              b. Woman cant be made liable for an attempt to rape. 

              c. Child below 7 years cant be liable for an attempt to the offence. 

       

    2) Relative Impossibility i.e. Impossible on part of Actor:

            It relates to situations when the preparation was itself incomplete. In reality the actor never reached the stage of attempt. 

              e.g. Z gives tea to Y after mixing poison in it. In fact it was not poison but only brown sugar. Here, the attempt is relatively impossible and accused will incur no liability. 

       

    3) Factual Impossibility: 

             It relates to a situation when the object was absent though an effort was done to commit the offence. Here it can further be divided into two categories. 

       

       a. Object absent in Property related offences.       

      b. Object absent in Human body related offences. 

       

                 The striking and confusing aspect of factual impossibility is that when the object is absent in property-related offence than they are punishable. 

          e.g. Thief goes to steal. He puts a hand in jewel box but box was empty. Still, thief is punishable with attempt though the attempt was factually impossible. (For support see S.511 Illustrations.)       

       However, when the object is absent in human body related offences than attempt is not punishable. 

          e.g. a.  X shot at Z’s blazer thinking it to be Z. But it was merely blazer hanging on a stand. Here X will not be liable because attempt was factually impossible. (See Ashgar Ali v. Emperor 1933 PC).

        

           It is very strange that though liability is arising in property-related attempts but not in human body related attempts. One possible answer of this distinction can be because of gradation of offences against the human body which do not exist in offences against property. Offences against the human body may be assault, hurt, grievous hurt etc. but no such gradation exists in property-related offences. A theft is theft irrespective of the value of the property. But, at the same time, this speculation cannot be given much weightage as rues of criminal law are governed by strict interpretation and not on mere speculations. 

           Law of Criminal Attempt is unfair and in confusion state. There is a need of repeal of Chapter 23 and Section 511 IPC as recommended by the Law Commission of India in 42nd report 1972 and new section S.120C should be introduced to provide clear and unbiased law. Secondly, it is also necessary because a strong law is foundation of smooth law and order in society. At a time when subordinate courts in India are struggling hard to dispense justice because of limited infrastructure and resources, they may not survive a second blow of a weak law which is subject to vague interpretation as discussed above. Law of criminal attempt gains prominence under Indian jurisprudence because it is a sharp departure from traditional law theories such as Law is a command, Law is natural etc. In such circumstances, it becomes a bounden duty of Magistrates especially working in subordinate Courts to understand correct rhythm of social awareness and impact of unclear law to society. Magisterial vigilance which is the thrust of entire criminal procedure jurisprudence in India must radiate into the marrows of rationality to serve the society better. 

                                                     

Harihar Gupta

          LL.M.

       

        

 

Estoppel

               Estoppel, a product of Equity Courts of England, has been statutorily encoded under Section 115 of Indian Evidence Act, 1872(hereinafter IEA). It springs out from famous latin maxim “allegans contraria non est audidendus” meaning (a person alleging contrary facts should not be heard). It is based upon the rational notion of admission and legitimate expectations first arising out in case of Pickard v. Sears (1). Object of estoppel is to prevent fraud and to secure justice between the parties by the promotion of honestly and good faith. Sir Edward Coke divided estoppel in three parts. 

    • Estoppel by Record such as the doctrine of Res Judicata as provided under Section 11 of Code of Civil Procedure,1908. 

    • Estoppel by Deed such as the doctrine of Feeding the Grant by Estoppel as provided under Section 43 of Transfer of Property Act, 1882. 

    • Estoppel by Pias or Conduct such as the doctrine of Estoppel as provided under Section 115, 117, etc of Indian Evidence Act, 1872. 

Estoppel by Conduct: 

               Simply Section 115, IEA provides that whenever a person by declaration, act or omission represents another to be something or believe in something, later neither he can be allowed to deny it nor his representative be allowed to deny it. 

Essentials: 

    i. Representation in the form of declaration or act or omission by one person to another.

    ii. Other person believed it and acts upon such belief thereby altering his position. 

    iii. The representation must be of existing facts. 

    iv. Such representation must have a proximate cause to lead other party to prejudice.

    v. The party claiming estoppel must show he was not aware of the real situation. 

       

             For a simple example to understand let's assume ‘A’ says to ‘B’ he wants to sell mobile for  ₨ 5000. This is a representation by declaration. ‘B’ on this begins to arrange money for Rs 5000 for mobile. This is changing/altering the legal position by ‘B’. Now if ‘A’ says I won't sell mobile. He can’t do so. He may be estopped by ‘B’ from denying the truth of selling.  

             One very important aspect of this doctrine is that it applies only upon a fact and not upon law. Equity cannot support the violation of any law. To understand this let's take an example. 

    • ‘A’ makes a contract with ‘B’. A agrees to file a particular suit anytime up to  6 years from the date of cause of action while The Limitation Act, 1963 only provides for 3 years limitation period for the same. ‘A’ files suit after 5 years. ‘B’ takes the plea that Limitation for the same has expired (even though he earlier agreed for 6 years duration). ‘A’ claims that ‘B’ is bound by estoppel. Here ‘A’ will fail because estoppel cannot defeat the statutory law i.e. The Limitation Act, 1963. 

Promissory Estoppel:

               The doctrine of promissory estoppel is an equitable doctrine. It is not expressly coded anywhere in India. Like all other equitable remedies, it is discretionary. Doctrine sometimes is called promissory estoppel, equitable estoppel, quasi estoppel, or new estoppel. Promissory estoppel is basically a hybrid doctrine which finds place neither in the contract nor in estoppel. It differs from estoppel in the manner that estoppel is always in regard to the existing fact while promissory estoppel is in regard of some future promise. It was first recognized by Lord Denning in Central London Properties Ltd. v. High Trees House Ltd.(2) Also known as High Trees case where your honor held “ A promise intended to be binding, intended to be acted upon, ad in fact acted upon is binding”. 

Essentials of Promissory Estoppel: 

    i. Representation or promise should be in regard to something to be done in the future. 

    ii. Representation or promise was intended to affect the legal relationship of parties. 

    iii. The other party altered his position believing such promise. 

               In India, there are two stages of application of this doctrine i.e. Pre Anglo-Afghan case and Post Anglo-Afghan case. Prior to this case, Doctrine was not applicable against the Government. In Union of India v. Anglo Afghan Agencies(3), Court held that doctrine was applicable against Government also. In this case, the Government announced certain concessions with regard to the import of certain raw material in order to encourage export of woolen garments to Afghanistan. Subsequently, only partial concession was given as against full concession as was so announced thus Supreme Court held that Government is estopped from going back from its promise. The doctrine of promissory estoppel is an exception to the doctrine of consideration in contract. Under it, though future promises are not supported by any consideration but if a promise is made in circumstances involving legal rights and obligations than the parties are enforced to do what they promised. In, M/S Motilal Padampat Sugar Mills v. State of Uttar Pradesh(4), it was reported in the newspaper that the State of Uttar Pradesh would grant 3-year sales tax exemption to new industrial units. Petitioner set up his vanaspati plant after reconfirming news with Chief Secretary of the state. Subsequently, the Government abrogated the policy. It was held that the Government is bound by the declaration. 

               Lastly, it has to be remembered that Estoppel is a rule of civil action only. No criminal liability can be brought by a party.  It is founded on sound principles of justice, equity and good conscience which are the essential pillars of any sustainable and mature justice delivery system. Once again the challenge before young judges in India which are working at ground level  (i.e. Civil Judges (J.D. & S.D. Cadre) is to ensure its actual implementation without fear and favor. Doctrine, if applied carefully and meticulously has the potential to serve society and promote the rule of law in true spirit. 

                                                             

Harihar Gupta

LL.M.

1.[1887] 6 Ad. & E. 469 

2.  [1947] KB 130 

3.  1968 AIR 718

4. 1979 AIR 621

How to write a short answer in competitive exam ? 'Restitution stops when repayment begins'.

                             Restitution stops when repayment begins

          The doctrine of Restitution simply means that if a person has unjustly enriched himself, the benefits need to be returned in light of golden principles of equity and justice. Doctrine gains prominence when applied in the case of minor because of the rule that minor’s agreement is void ab initio. The question which arises here thus is, Whether minor also need to return benefits unjustly taken?

          The issue first arose in an English case Leslie Ltd. v. Sheill1, whereby a creditor wanted to restitute/recover £ 475  from a minor who had taken loan by falsely representing himself to be a major. The creditor only claimed restitution of money which was given under deception. However, the Court of Appeal held that repayment by minor is not restitution. It is rather a way to enforce a void agreement which cannot be permitted. Court further held that “Restitution stops when repayment begins”. Basically in the cloak of restitution, a void agreement cannot be enforced. Hence under English law, a minor is not liable to pay the money back even if unjustly taken. 

Indian Position: 

          In India, the point was first raised in the landmark case of Mohori Bibee V/S Dharmodas Ghose2 which was decided by a bench of judges comprising of Lord Mcnaughton, Lord Davey, Lord Lindley, Sir Ford North, Sir Andrew Scoble and Sir Andrew Wilson, JJ. In this case, a Mahajan Brahmo Das had advanced money to minor Mr. Dharmodas Ghose despite being aware of the fact that Mr. Ghose is minor. Mahajan claimed restitution of benefits under Sections 64, 65 of Indian Contract Act, 1872 (hereinafter IC Act), and Ss. 38 and 41 of the Specific Relief Act,1877 (hereinafter SR Act). Court refused to give relief under IC Act as minor’s agreement is void ab initio and further seceded help under SRA as Mahajan had not approached the court with clean hands. He was well aware of the minor’s age. In reality, he wanted to usurp the house of minor. 

          After the Mohiri Biwi case, many conflicting views came by different Indian courts, and finally, the issue was settled in famous case of Khan Gul v. Lakha Singh3 in which Shadi Lal J. held that this English doctrine is not applicable in Indian law. This view was also incorporated under Section 33 of the Specific Relief Act, 1963. Thus in India, both minor, as well as major both, have to return benefits if unjustly taken in light of Section 33 of SR Act,1963. Hence, English doctrine ‘Restitution stops when repayment begins’ is not applicable in India. 

                                               

Harihar Gupta

LL.M.

1. (1914) 3 K.B.607

2. (1903) 30 Cal 539 (Pc)

3. AIR 1928 Lah 609

Dying Declaration

                Death is as certain as Life. William Shakespeare in play Richard II written in 1595 wrote some lines that can be highlighted as the rational behind the dying declaration doctrine. These lines are as under:

 

                   “When words are in scarce, they are seldom spent in vain;

                    They breathe the truth that breathe their words in pain.”

               Deceased victim is perhaps the best source of knowledge of crime but since he is no more his statement if any given to a person before death explaining his death or circumstances which led to death are admissible as evidence. Concept of dying declaration is based upon celebrated rule of Nemo Moriturus Presaminiter meaning that a person will not meet his maker with lie in his lips. Indian jurisprudence applies this doctrine only partially because expectancy of death is not a prerequisite for law to come into motion. Concept has been statutorily encoded under Section 32(1) of The Indian Evidence Act, 1872 (hereinafter IEA, 1872) . Rational behind it is necessity and convenience. Grounds for admission of dying declaration are as under.

• Death of Declarant
  
  
• Necessity (It is the only available evidence under the circumstances.)
  
  
• The sense of impending death, which creates a sanction equal to the obligation of an oath. 
   

Essentials for Section 32 (1), I.E.A 1872:

• Statement can be made in any form i.e. verbal/oral/written/gestures. 
   
• Person making the statement must have died. (Otherwise it will be relevant under Section 21(1) of I.E.A 1872 and can be used to contradict S.145, to corroborate S.157 or to impeach the credit of witness S.155 of I.E.A 1872.)
  
  
• Statement must relate to cause of his death or the circumstances of transaction which resulted in his death. 
   
• The cause of death must be in question. 
   
• Depositor must be competent and in fit state to depose. 
   
• Statement must be complete and consistent.

Circumstances of transaction:

           In India, any statement which is related to circumstances of transaction which ultimately led to the death are duly relevant if there is sufficient nexus established between transaction and death. In Pakala Narayan Swamy v. King Emperor¹ mere statement of deceased given to his wife i.e. “I am going to accused” (as he is indebted to me) was held relevant by Lord Atkin as a circumstance which led to death. Similarly in Sharad Birdichand Sharda v. State of Maharashtra² letters written by a daughter to her father about her critical condition at in laws home were held to be relevant as circumstance of transaction relating to death.

Evidentiary Value:

           Though legally, there is no rule which requires corroboration of statement received as dying declaration however general prudence requires so because it is actually an exception to hearsay evidence moreover its not made on oath and its veracity cannot be tested by cross examination in Court of law.

               Very earlier in Ram Nath Madho Prasad v. State of Madhya Pradesh³, Supreme Court held that dying declaration cannot be sole basis of conviction. Stand changed in Kushal Rao v. State of Bombay⁴, where Apex court held that Dying Declaration can become the sole basis of conviction. The main question which arose in the case was ‘Whether statement should be corroborated or not?’ which Court answered in the negative. Similarly in Kusa v. State of Orissa⁵, Apex Court held that if a dying declaration is true, consistent and coherent, it can be relied for conviction even if there is no corroboration. Law was ultimately settled in landmark judgment of Atbir v. The State (NCT of Delhi)⁶ where P. Sathasivam J. held that a dying declaration can be sole basis of conviction if two conditions are satisfied. Those are as under.

1. Deceased should be in fit state of mind to depose. 
    
2. Court should be satisfied about truthfulness and voluntary nature of said statement.

               Thus, once again thrust of examining the veracity of statement is largely delegated to the mind of a judge which opens the door of discretion however which should not be used arbitrarily but only to achieve the ends of justice.

Difference with English Law:

1. In England, Dying Declaration applies only in criminal cases. In India,it applies on civil as well as criminal proceedings. 
    
2. In England, it is used only for homicide cases. In India, used for both homicide and suicide cases. 
    
3. In England for doctrine to work there should be some expectancy of death. In India, there is no such requirement.

               Dying declaration is last hope of deceased to get justice. Doctrine is simply one of the various legal threads wedded to the social fabric to make justice delivery system more potent and sharp. Its role in countries like India, which have inquisitorial system assumes much more significance where judges have always played pivotal and centripetal role. Doctrine further engulfs the concept of social vigilance and analytical mind which radiates into the marrows of society. The challenge is not to evolve it further but to apply it fearlessly keeping in mind the conscience of society.

Harihar Gupta

LL.M.

                                

1(1939) 41 BOMLR 428

21984 AIR 1622, 1985 SCR (1) 88

3AIR 1953 SC 420

41958 AIR 22, 1958 SCR 552

5980 AIR 559, 1980 SCR (2) 801

6(2010) 9 SCC 1

Adverse Possession

                    

                    Ownership of an immovable property is one of the dear aspects of life as it fills a person with confidence and power. Generally a property is acquired either by succession under personal law or by self purchase. In both the cases there is an inherent right to hold the property which law gives to a person. Adverse possession is a different dimension of law where a person even though in absence of this inherent right becomes the owner of property. It goes against the general spirit of equity, justice and good conscience where a person not having a rightful title, still is made the de-facto owner of property.

                  Simply speaking concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in negation of the title of true owner. It is based upon famous latin maxim, Vigilantibus non dormentibus jura subveniunt meaning law aids the vigilante and not the one who sleeps over his rights.

                    Under Indian jurisprudence, law of adverse possession finds place under The Limitation Act 1963 (hereinafter the Act). Article 64 and 65 read together with Section 27 of the Act provides that suit for possession of immovable property based on previous possession or title can be filed within 12 years. Under Article 64, suit based on previous possession can be filed within 12 years from date of dispossession and under Article 65, it can be filed within 12 years from the day when possession of defendant becomes adverse to the plantiff.

                    Section 27 of the Act is an exception to well accepted rule that limitation bars only the remedy and does not extinguish the title. In context of adverse possession it means that since a person who was in possession had himself allowed the right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto the person in adverse possession is enabled to hold on his possession as against the owner not in possession. In Annakili v. A.Vedanayagam 2008 SC, Apex court summed up the following essentials to claim the benefits of adverse possession.

1.      A person in possession of property for more than 12 years

2.      His possession was to exclusion of all the other persons.

3.      The said possession was open and hostile to true owner.

4.      Possessor must have animus possidendi to hold land against the title of true owner.  

 Scope and Relevancy of Law:

                    Scope of this law is limited by the fact that claim of ownership by adverse possession can only be made as a defense. Apex court in Gurdwar Sahib v. Gram Panchayat Village Sirthala 2014 SC clearly held that ‘even if plantiff is found to be in adverse possession, it cannot seek a declaration to effect that such possession has matured into ownership. It is only when suit is filed against the defendant; it can be used only as a shield/defense. Thus in essence plea of adverse possession is only a defense available to defendant.

                   Adverse possession is against the cannons of natural justice. A person who in reality does not have any innate right to hold property is made its owner just because of long possession. In State of Haryana v. Mukesh Singh 2011 SC, Apex court reiterated the words of a foreign court judgment that,

“the law of adverse possession is irrational, illogical and wholly disproportionate and extremely harsh for true owner and windfall for dishonest person who had illegally taken possession of property.”

Law ought not to benefit a person who in clandestine manner has taken possession of property in contravention of law. Apex court also recommended the need to revisit the law. The observations by highest court of law is perhaps the realization of immortal words of Roscoe Pound as appearing in his celebrated treatise, The Ideal Element of Law that, "the law must be stable and yet it cannot stand still. Hence all thinking about the law has struggled to reconcile the conflicting demands of the need of stability and the need of change."

                     

Harihar Gupta

LL.M.

                                                                                                                  

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Concept of Probation under Criminal Law

                The criminal justice system is gradually advancing from being retributive to reformative. Rationale behind probation law is 'to prevent the conversion of youthful offenders in obdurate criminals as a result of their association with hardened criminals of mature age, in case youthful offenders are sentenced to go imprisonment in jail'. (Jugal Kishor Prasad v. State of Bihar 1972 SC)

Applicability:

Section 19 of Probation of Offenders Act 1958 (hereinafter the Act) provides that as soon the Act will come into force, Section 562 of Code of Criminal Procedure 1898 hereinafter CrPc will cease to apply. CrPc was substantially renovated in its current form in 1973 in which Section 360 provides for the relief of probation. Apex Court in Channi v. State of Uttar Pradesh 2006 SC held that Section 360 of CrPc 1973 and provisions of the said Act cannot co-exist together on account of being considerable differences between them. Hence it became abundantly clear that if Probation of Offenders Act is in operation in an area than Section 360 will automatically cease to exist. It has been clarified in the Act by virtue of Section 1(3) that this act will come into force as and when State Government will notify. 

Nature:

Section 361 of CrPc provides for mandatory nature of relief. It provides that a court must record its reasons in writing of the court could have dealt with an accused under any of the following acts but had not done so i.e.

1.      Section 360 CrPc.

2.      Probation of Offenders Act 1958

3.      A youthful offender under Children's Act 1960

4.      Any other law for time being for rehabilitation of youthful offenders

Thus it becomes abundantly clear that legislature in its wisdom has obliged the court to mandatorily apply one or the other beneficial provisions as the case may be.

Probation under CrPc:

Section 360 makes two fold classifications

• .      Person above 21 years of age convicted of offence punishable with either fine only or with imprisonment of 7 years or less.

•  Person below 21 years of age or woman (of any age) convicted of offence not punishable with death or life imprisonment.

       And,

       No previous conviction is proved against the offender

Than the court in its discretion keeping in regard to age, character and antecedents of offender instead of convicting him at once may direct his release on bond (with or without sureties) to appear and receive sentence when called upon during such period(not to exceed 3 years).

Section 360 vis a vis Probation of Offenders Act 1958:

1.      Unlike Section 360, the Act has done away with the distinction on the basis of age or sex and all such offenders whether below 21 Years age or above are equally entitled to avail the benefit of release on probation of good conduct or after admonition.

2.      Under the Act, grant of probation is not confined to only first time offenders as is the case under Section 360 CrPc. Courts have wider discretion under the Act to release even  a previously convicted offender after recording due reasons.  Thus the scope and horizon of Act is much wider.

3.     Section 360 fails to provide any role of Probation officers in assisting the courts while the Act provides for it.

4.  Section 360 does not provide any disqualification attached with the conviction while Section 12 of Act specifically provided that a person released on probation shall not suffer any disqualification attached to the conviction of offender.

Hence, keeping in mind the object and tilt of criminal jurisprudence from retributive to reformative, courts are in bounden duty to honor the wisdom of legislature which is apparently not visible in lower courts judgments. As a homage which can be paid by young judges to the reformative jurisprudence and to lessen the burden of overflowing jails, it is the need of hour to strictly apply the law in letter and spirit.

                        

Harihar Gupta

LL.M.