judgement:
minal Appeal No. 121 of 1961.
Appeal by special leave from the judgment and order dated May 26, 1961 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revision No. 159 D of 1961.
Nur ud din Ahmed and Naunit Lal, for the appellant.
V. D. Mahajan and P. D. Menon for R. N. Sachthey, for the respondent.
November 27.
The judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is directed against the order of the Punjab High Court dismissing the Revision petition filed against the order of the Additional Sessions judge, Delhi.
The appellant entered India on May 9, 1956, on a Pakistan passport dated February 11, 1956.
He had a visa endorsed on the said passport permitting him to stay in India for three months.
Under that visa he had to leave India on or before August 8, 1956, As he failed to do SO., a notice under section 3 (2) of the as amended in 1957, hereinafter called the Act, was served on him on 562 November 19, 1959, by the Delhi Administration.
By that notice he was asked to report his presence personally to the Foreigners Regional Registration Officer, Taj Barracks, janpath, New Delhi, between 11 A. M. to 12 noon daily and enter into a personal bond in the amount of Rs. 5,000/ with two sureties in the amount of Rs. 10,000/ each for the due, observance of ' the restriction imposed on his movements.
The appellant did not comply with the requirements of the notice.
Therefore he was prosecuted under section 14 of the Act for violating the provisions of section 3 in the Court of the Sub Divisional Magistrate, Delhi.
The appellant pleaded in defence that the said notice was not served on him and that he was a citizen of India.
The learned Magistrate held on the evidence that the said notice was served on him and that he was not a citizen of India but a foreigner within the meaning of that Act and that he had committed an offence, inasmuch as he did not comply with the provisions of the said notice.
On those findings he convicted him under section 14 of the Act and sentenced him to six months ' rigorous im prisonment.
On appeal the Sessions Judge, Delhi confirmed the findings of the Magistrate and dismissed the appeal filed by him.
He held that the burden was upon the appellant to prove that he was not a foreigner and that he had failed to discharge the same.
He also rejected the plea of the appellant 'viz. that as on the date he entered India, he was not a foreigner within the meaning of the definition of "foreigner ' as it then stood he could not be convicted, on the ground that be was prosecuted for an offence committed after the definition was amended.
The High Court confirmed the conviction of the appellant and the sentence passed against him.
Hence the appeal.
The learned counsel Mr. Nur ud Din appearing for the appellant raised before us the following two points: (1) the appellant was not a foreigner 563 within the meaning of the definition of a foreigner as existed at the time he entered India, i. e. on May 9, 1956, and therefore the High Court went wrong in convicting him, and (2) the appellant is not a foreigner even under the amended definition To appreciate the first contention it will be convenient to read the relevant provisions of the Section 3 : "The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or des cription of foreigner, fir prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.
(2)In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner. . (a) x x x (b) x x x (c) x x x (d) x x x (e) shall comply with such conditions as may be prescribed or specified (i) requiting him to reside in a particular place; (ii) imposing any restrictions on his movements; 564 (iii), (iv), (V), (vi), (vii), (viii), (iX), (X) (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of any or all prescribed or specified restrictions or conditions: The definition of a foreigner as it stood in 1953 was 'Foreigner ' means a person who is not a natural born British subject as defined in sub sections 1 & 2 of section 1 of the British Nationality and Status of Aliens Act, 1914.
Section I (1) of the British Nationality and Status of Aliens Act, 1914, is in these terms : 'The following persons shall be deemed to be natural born British subjects, namely, (a) any person born within His Majesty 's Dominion and allegiance. ' The definition of a foreigner was substituted by the Foreigners Laws (Amendment) Act, 1957 (11 of 1957) section 2 (a).
This amendment came into force with effect from January 19, 1957.
Under the said definition, ,foreigner ' means a person who is not a citizen of India.
Section 14 is : 'If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of Sub section
(2) of section 3, his bond shall be forefeited; and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid. ' 565 The gist of the foregoing provisions relevant to the present inquiry may be stated thus : Under the definition of a foreigner as it stood in the Act in 1953 before the amendment of 1957, any person barn within His Majesty 's Dominion and allegiance was a citizen of India but after the amending Act 11 of 1957 which came into effect from january 19, 1957, a person who is not a citizen of India is a foreigner.
After that date if an order is issued by the Central Government in exercise of powers conferred on it under section 3 of the Act directing a foreigner so defined and prescribing certain conditions for his stay, it is the duty of such a foreigner to obey the said order.
If he did not, he would be committing an offence within the meaning of section 14 of the Act.
In the light of the said provisions let us look at the facts of the present case.
As aforesaid the appellant entered India in 1956 on a Pakistan passport, the visa endorsed on it enabled him to stay in India till August 8, 1956.
The Delhi Administration made an order and served on him on November 19, 1959, imposing the restrictions on his stay.
Admittedly the appellant did not comply with the said restrictions and therefore lie committed an offence within the meaning of section 14 of the Act.
It is contended that as the appellant was not a foreigner at the time he made his entry into India, he could not be convicted on the basis he was a foreigner within the meaning of the definition of a foreigner as subsequently amended.
There is a fallacy underlying in this argument.
The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood.
In view of the amendment of the definition he became a foreigner after January 19, 1957.
He could not be convicted for an offence for an act done by him before the amendment on the basis he was a 566 foreigner ; for instance an act done by him such as his entry into India or his noncompliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner.
But the offence for which he is now charged is an act done by him in derogation of an order issued to him after the amendment.
On the date when the Delhi administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition.
On the basis of the existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the original definition.
The legality of the act done by him must be judged on the basis of the existing law as the act was done subsequent to the amendment.
Reliance is placed upon the decision of this court in Fida Hussain vs State of Uttar Pradesh (1) in support of the contention that as the appellant was not a foreigner when he made the entry, he could not be convicted on the ground he was a foreigner.
But the facts of that case are different from those in the present appeal and that decision is clearly distinguishable.
There a person was born at Allahabad at the time when it was his Majesty 's Dominion.
* He had left India to Pakistan but returned on a passport granted by the Government of Pakistan on May 16, 1953.
He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November 1953.
Under Paragraph 7 of the Foreigners Order 1948 issued under section 3 of the , every foreigner entering India on the authority of a visa shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry.
As the appellant stayed after November 15, 1953, without permission given 567 under that order, lie was prosecuted for breach of the said order.
It would be seen from the said facts that the appellant therein was prosecuted for an offence committed by him before the Amending Act of 1.957 came into force on January 19, 1957.
This court on the said facts held that the appellant therein could not be convicted for the breach of Paragraph 7 of the Foreigners Order as lie not being a. foreigner at that time could not have committed a breach thereof, but clearly this decision cannot apply to an offence committed by a person who falls within the amended definition of foreigner ', after the Amending Act came into force.
Indeed this court in express terms left open that question at page 1523 "No question as to the effect of the amended definition on the appellant 's status fell for our decision in this case, for we were only concerned with his status in 1953.
We would also point out that no order appears to have been made concerning the appellant under section 3(2) (c) and we arc not to be understood as deciding any question as to whether such an order could or could , not have been made against the appellant.
" What has been left open in that decision is to be considered in the present case.
The appellant who is 'a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field.
The appellant therefore in disobeying the directions given to him, by the Delhi Administration his committed an offence within the meaning of section 14 of the Act.
Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under the Act.
Some of the relevant provisions of the Constitution and the Citizenship Act 57 of 1955 may conveniently be extracted.
Article 5 of the Constitution says "At the commencement of this Constitution, 568 every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident of the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
" Section 9 of the Indian is in these terms : "If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner. the onus of proving that such person is not a foreigner. shall, notwithstanding anything contained in the (1 of 1872) lie upon such person".
Under article 5(a) of the Constitution the appellant cannot be a citizen of India unless he was born in the territory of India and had his domicile in the territory of India at the commencement of the Constitution.
In this case the appellant claimed to be a citizen under article 5(a) of the Constitution.
By reason of section 9 of the Foreigners ' Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him.
The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner.
This court in Union of India vs Ghaus Mohammad (1) accepted this legal position and laid down at page 748 thus : "It does not seem to have (1) ; 569 been realised that the burden of proving that he was not a foreigner, was on the respondent and appears to have placed that burden on the Union.
This was a wholly wrong approach to the question," Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner.
The learned Additional Sessions judge after noticing that the onus was on the appellant considered the evidence both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus.
It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions judge was not justified in ignoring the evidence of 'respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter.
The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence.
The High Court in revision refused to interfere with that finding.
We do not see any permissible ground for interference with that finding in an appeal under article 136 of the Constitution.
No other point is raised before us.
The appeal fails and is dismissed.

summary:
The appellant entered India on May 9, 1956, on a Pakistani passport.
He had a visa permitting him to stay in India for three months.
He had to leave India on or before August 8, 1956.
As he failed to do so, a notice under section 3 (2) of the , as amended in 1957, was served on him on November 19, 1959, by the Delhi Administration.
As he did not comply with the requirements of the notice, he was prosecuted under section 14 of the and convicted.
His appeal and revision were dismissed.
All came to this court by special leave.
His contention was that he was not a foreigner within the meaning of the definition of a foreigner as it existed at the time he entered India, and he was not a foreigner even under the amended definition.
Held, that the appellant was a foreigner under the amended definition and he had committed a breach of the order served on him after the amended definition of foreigner came into force.
In disobeying the directions given to him by the Delhi Administration, he had committed an offence within the meaning of section 14 of the .
Before the amendment of the definition in 1957, a person born within His Majesty 's Dominion and owing allegiance was a citizen of India, but after the amendment in January, 1957 a person who was not a citizen of India became a foreigner.
After that date, if an order was issued by the Central Government in exercise of powers conferred on it under section 3 of the Act, it was the duty of such a foreigner to obey that order and if he did not do so, he committed an offence within the meaning of section 14 of the Act.
The appellant was certainly not a foreigner when he entered India, but in view of the amendment of the definition, he became a foreigner after January 19, 1957.
He could not be convicted for an offence for an act done by him before the amendment on the 561 basis that he was a foreigner, but in the present case he had been punished for not complying with an order passed after the amendment.
The burden of proving that he was not a foreigner was on the appellant and he had failed to discharge that burden.
The legality of an act done by a person must be judged on the basis of the existing law at the time the act is done.
Union of India vs Ghaus Mohammad, ; followed Fida Hussain vs State of Uttar Pradesh 11962] 1 S.C.R. 776, distinguished.


judgement:
minal Appeal No. 144 of 1962.
Appeal by special leave from the judgment and order dated May 10, 1962, of the Patna High Court in Criminal Appeal No. 339 of 1961.
B.K. P. Sinha and A. G. Ratnaparkhi, for the appellants.
S.P. Varma, P. D. Menon and, B. N. Sachthey, for the respondent.
December 6.
The judgment of the Court was delivered by AYYANGAR, J.
This appeal by special leave granted by us on September 7, 1962, raises for 747 consideration the proper construction of sections 6 and 11 of the (XX of 1958), hereinafter called the ,Act '.
The appellants are two brothers Ramji and Basist.
It was alleged that these two assaulted one Sidhnath (P.W. 2) who as a result suffered grievous injuries Basist, the younger brother was charged before the Assistant Sessions judge, Arrah, with the commission of an offence under section 307, Indian Penal Code, for the reason that the injury he inflicted was a bhala blow under circumstances ""that if by that act death had been caused he would have been guilty of murder", and as the injury actually sustained was grievous he was further charged with causing grievous hurt under section 326, Indian Penal Code.
The elder brother who too caused hurt to the victim was charged under section 324, Indian Penal Code.
The Assistant Sessions.
Judge held the prosecution case as alleged establish against both the accused.
It is now necessary to mention that according to the Sessions judge Ramji was 21 years old and Basist 19.
Section 6 of the Act enacts : "6.
(1) 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 unless it is satisfied that, having regard to the circums tances of the case including the nature of the offence and the character of the offender, would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, shall record its reasons for doing so.
(2) For the purpose of satisfying itself Whether it would not be desirable to deal under section 3 748 or section 4 with an offender referred to in subsection (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.
" The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life (both sections 307 and 326, Indian Penal Code).
He accordingly sentenced Basist to undergo rigorous imprisonment for six years under section 307, Indian Penal Code, and to four 'years under section 326, Indian Penal Code, the sentences to run concurrently.
As regards Ramji, the elder brother, he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms: "So far as accused Ramji is concerned I am not inclined to take recourse to the provisions of the , because the act of assault on the informant on the part of this accused is premeditated." He sentenced him to undergo rigorous imprisonment for two years under section 324, Indian Penal Code.
Both the accused filed an appeal to the High Court.
The learned Single judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to P.W. 2, with the result that as against him the ' conviction under section 307 as well as that under section 326, Indian Penal Code, were set aside and in their place he recorded a finding of guilty in respect of an offence under section 324, Indian Penal Code, for which he imposed a sentence of rigorous imprisonment for two years.
As against Ramji the conviction was maintained but being informed by 749 counsel that that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months.
It was urged before the High Court that the reasons assigned by the Assistant Sessions judge for refusing to apply the provisions of section 6 of the Act to accused Ramji were not proper.
This submission was, however, repelled since the learned judges considered the section inapplicable to that accused because, though he might have been "under 21 Years of age" on the date of the offence (October 17, 1960), "he was not a person under 21 years of age" on May 24, 1961, when the Sessions judge found him guilty and sentenced him to a term of imprisonment, holding that the crucial date on which the age had to be determined being not the date of the offence but the date on which as a result of a finding of guilty sentence had to be passed against the accused.
As regards Basist also, it was urged before the High Court that in view of the alteration in the finding recorded as regards his guilt, the beneficial provisions of section 6 of the Act became applicable to him, the learned judge holding that he could pass the same order as the trial court could have done because of the provisions contained in section 11 of the Act reading : "11.
(1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision.
(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the 750 Court to which appeals ordinarily lie from the sentences of the former Court.
(3) In any case where any person under. twenty.
one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any othe r law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the Probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.
(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in ' lieu thereof pass sentence on such offender according to law Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty.
" The learned judge however, declined to do so observing: "No doubt, under the provisions of section 11 of the this Court is competent to make an order, but it is entirely discretionary for this Court to exercise the power conferred on it under section II.
In, view of the fact that the Court below has already dealt with 751 this matter, though not very satisfactorily, I do not consider it desirable to deal with the cases of these appellants under the provisions of the at this stage." and instead, passed the sentence of imprisonment as already mentioned.
It is the correctness of these orders refusing to apply the provisions of section 6 of the Act to the cases of the appellants that is raised for consideration in this appeal.
Taking first the case of Ramji , the elder brother, we entirely agree with the High Court in their construction of section 6.
The question of the age of the person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty.
The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison.
The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime.
If this were borne in mind it would be clear that the age referred to by the opening words of section 6(1) should be that when the court is dealing with the offender that being the point of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it, viz., sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act.
As the High Court has found that Ramji was not a person under the age of 21 on May 24, 1961, when.
the learned Sessions judge found him guilty it is clear that section 6(1) of the Act has no application to him.
The position in regard to the second appellant Basist tands on an entirely different footing.
He was said to be of the age of 19 by the Sessions judge 752 which is apparently a reference to the time when the offence was committed.
If so, he would have been about 20 at the time when the Sessions judge found him guilty of offences under sections 307 and 326, Indian Penal Code, and possibly also below 21 at the time when the High Court altered his conviction into one under section 324, Indian Penal Code.
If by reason of his age, and the offence of which he was been found guilty the provisions of section 6(1) are not excluded, the question that has next to be considered is whether the learned judge had an absolute and unfettered discretion to pass or refuse an order under 'the Act by virtue of the terms of section 11 of the Act.
This would obviously turn on (1) whether or not section 6(1) was applicable to the High Court, and (2) the proper construction.
of the terms of section 11 which empowers appellate and revisional courts to pass orders under the Act.
It was urged by learned Counsel for the appellant that the High Court when it recorded a finding that Basist was guilty of an offence under section 324, Indian Penal Code, was squarely within the words "the court by which a person is found guilty" occurring in section 6(1) as it was only by that Court that for the first time the accused was found guilty of an offence which was not excluded by the opening words of that section.
Learned Counsel relied for this position on the judgment of High Court of Madras in Narayananwami Naidu vs Emperor (1) following a ,decision of the Allahabad High Court to a similar effect in Emperor vs Birch (2).
The question that arose in the first of the above cases related to the scope of the words "Court before whom he is con victed" occurring in section 562, Code of Criminal Procedure, as it originally stood.
The provision in section 562, Code of Criminal Procedure, is somewhat in pari materia with section 4 of the Act wherein a Person found guilty of having committed offences not punishable (1) Mad.
(2) All. 306.
753 with death or imprisonment for life may, instead of being sentenced to imprisonment, be released on entering into a bond.
In the Code as originally enacted which the decision referred to had to deal with, there was no express provision as regards the power of appellate courts to pass similar orders.
The accused in that case was tried and convicted by a magistrate under sg.
447 and 352, Indian Penal Code, and sentenced to undergo rigorous imprisonment for two weeks.
The accused filed an appeal and the Deputy Magistrate who heard it while affirming the conviction directed his release on his executing a bond applying to him the provisions contained in section 562, Code of Criminal Procedure.
The District judge considered that the Deputy Magistrate had exceeded his jurisdiction in making this order and referred the question to the High Court.
The learned judges rejected the reference observing that the words ""Court before whom he is convicted ' used in s.562 were not intended to limit the power of making orders under that section to the court of first instance.
It might be mentioned that the Code has since been amended by the addition of sub section
(2) which runs : "An order under this section may be made by an appellate court or by the High Court when exercising its powers of revision." so that it is no longer necessary for an appellate or revisional court to rely on any construction of the words ", 'the court by which the person is found guilty" for invoking or exercising its jurisdiction.
The position therefore comes to this the words referring to ""the court by which a per son is found guilty" are wide enough to include an appellate court, and particularly so where it is the appellate court alone which by reason of its finding on the guilt of the accused becomes for the first time vested with the power or the duty to act under the section.
754 Undoubtedly if section II were attracted to the case, then there would be no need for invoking the Jurisdiction of the High Court under section 6, and indeed in those circumstances the proper construction of section 6 itself would be to exclude an appellate or revisional court since a redundancy could not have been intended by the statute.
The first question would therefore be to ascertain whether the jurisdiction or powers envisaged by section 6(1) are within ' the scope of the jurisdiction conferred by section 11.
The power conferred on the High Court is to pass ""an order under the Act.
" One is thrown back on the Act for determining what these are.
They are: (1)Under section 3 a court might order the release of a person found guilty of an offence of the type specified in the section after due admonition.
(2)Under section 4 an order may be passed in circumstances set out in it releasing such person on entering into a bond with or without sureties or pass a supervision order.
(3)Orders which are consequential on orders under section 3 or section 4 like those for which provision is made by sections 5 & 9.
So far as section 6 is concerned it is, to say the least, doubtful whether it.
involves the " 'passing of an order", for the operative words are that the court finding a person guilty refrains from passing any sentence.
An injunction enacted by this Act against passing a sentence of imprisonment which the court under the normal law is empowered or enjoined to pass can hardly be termed ",passing an order" under the Act.
If this were correct, the result would be that on the reasoning which the High Courts of Madras and Allahabad adopted to construe the words in section 562, of the Code, the High Court, when hearing an appeal, would be subject to the provisions of section 6. 755 It is however possible that the words in section 11 (1) "" ',pass an order under the Act" are not to be construed so strictly and literally, but to be understood to mean "to exercise the powers or Jurisdiction conferred by the Act.
" This wider interpretation might perhaps be justified by the scope and object of this section.
Section 11 is to apply ""notwithstanding anything in the Code or any other law" to all courts empowered to sentence offenders to imprisonment.
TO read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the powers under sections 3 and 4 alone would not, in our opinion, be in accord with sound principles of statutory interpretation.
We are therefore inclined to hold that the Courts mentioned in section 11 be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under sections 3 and 4 and the consequential provisions but also under section 6.
Accepting therefore the interpretation of section 11 (1) which was urged by Counsel for the respondent, that the courts mentioned in it could pass orders under sections 3, 4 or 6, the question next to be considered relates to the incidents of that jurisdiction with regard to the amount and nature of discretion vested in these courts.
It was submitted on behalf of the appellant that the power conferred on the High Court and other courts by section 11 (1) was neither more nor less than those of the court under section 6 (1) and that the former were bound to exercise it, subject to the same conditions and limitations as are set out in the latter provision.
Stated in other words the interpretation suggested was that the terms of s.6 had, so to speak, to be read into the jurisdiction of the courts acting under section II (1).
On the other hand the contention urged by the respondent was that section II (1) had to be read on its own language and so read it conferred on 756 the courts mentioned in it, an absolute and unfettered discretion "to pass or not to pass an order under the Act" as they thought fit having regard to the circumstances of each case.
A considerable portion of the argument by the respondent was based on the import of the facultative verb "may" in the words " 'may be made" occurring in the operative part of the sub section as conferring a discretion and that as no limitations were placed ' by this or any other section on the exercise of this discretion, the same should be held to be unfettered and therefore capable of being exercised, no doubt, on judicial principles but not subject to any statutory limitations.
It might be mentioned that from the relevant passage of the judgment of the High Court which we have extracted, it would appear that the learned judge has proceeded on this interpretation of section 11.
Though the word "may" might connote merely an enabling or permissive power in the sense of the usual phrase ""it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority.
As observed in Maxwell on Statutes "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory.
In enacting that they 'may ' or 'shall ' if they think fit, or '&hall have power, ' or that, 'it shall be lawful ' for them to do such acts, a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions 757 may have to, say the least a compulsory force.
The fact that the power is conferred on a Court might militate against the literal interpretation of "may" suggested by the respondent.
This apart, the power conferred by section 11(1) is to pass " 'an order under the Act" and the question arises as to the precise import of these words, and in particular whether these words would not imply that the order to be passed would be subject to the same limitations or conditions as the orders under what might be termed the primary provisions of the Act.
Thus section 3 empowers a court to release certain offenders on probation of good conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised : (1) that no previous conviction should have been proved against him, and (2) that the court by which the person is found guilty should be of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do.
Similarly, section 4 empowers a court to release certain offenders on probation of good conduct, The criteria laid down there.
and the guidance set out is that the court by which the person is found guilty should be of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has :a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
Would it be a proper construction of section 11 (1) to hold that the High Court etc.
could pass orders in appeal or revision without reference to these standards, 758 tests or guidance which the statute has prescribed for the primary courts? We are clearly of the opinion that this is capable only of a negative answer and that the power conferred on appellate or other courts by section II (1) was of the same nature and characteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 & 4.
We are confirmed in this view by the terms of section 11(3).
If this were so it would not be possible to adopt a, different rule of interpretation when one came to consider the power under section 6.
It cannot, for instance, be suggested that the High Court could in its discretion exercise the power under section 6 in the case of a person who is above the age of 21, nor where a person is found guilty of an offence punishable with death or imprisonment for life.
These limitations on the exercise of the discretion have surely to be gathered only from the terms of section 6(1).
If section 6(1) applies so far to restrict the absolute and unfettered discretion implied by the word "may", it appears to us that logically the conclusion is inescapable that the entirety of section 6(1) applies to guide or condition the jurisdiction of the High Court under section 11(1).
We there.
fore reject the submission made to us on behalf of the respondent that an appellate court has an unfettered discretion in dealing with a case which comes before it under section 11 and that its discretion and powers are not to be governed by the terms of section 6(1).
The question next to be considered is the result of applying the terms of section 6(1) to a person in the position of Basist.
It was not disputed by learned counsel for the respondent that the learned Judge of the High Court failed to consider the case of this accused with reference to the terms of section 6 since he has proceeded on the basis that he had an unfettered discretion in the matter and which in the circumstances of the present case he was not inclined to exercise in favour of the accused.
The order of the High Court in so far as it relates to the second appellant 759 Basist must therefore be set aside and the High Court directed to exercise its discretion on the basis that it was judging the matter with reference to the criteria laid down in section 6.
We shall now proceed to consider one question which was mooted before us in regard to the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge, when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court.
Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is, for the first time, in a position to claim the benefit of section 6.
We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender.
In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge, section 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal.
The appeal is accordingly allowed in part i.e., in regard to the second appellant Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisions of section 6 of the probation of offenders Act, 1958.
Appeal allowed in part.

dataset_name: IN-Abs

summary:
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 sections 307 and 326 of the Indian Penal Code, the conviction of R was under section 324.
Section 6 (1) of the , 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, section 6 (1 was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life.
R, the older brother was aged 2 1, 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 their place a finding of guilty under section 324 of the Indian Penal Code was recorded for which a sentence of 2 years was imposed, and, as regards R, his conviction under section 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) that section 6 (1) was inapplicable to R because though lie might have been under 21 years of age an 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 section 1 1 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 wag not desirable to deal with the case of the appellant under the provisions of the Act at that stage.
746 Held : (1) that the age referred to in section 6 (1) of the , is that when the courts deal; with the offender, that being the point of time when the court has to choose between the two alternatives, whether to sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act.
(2)that the courts mentioned in section 11 of the Act, be they trial courts or courts exercising appellate or revisional jurisdiction, are empowered to exercise the jurisdiction conferred on courts not only under sections 3 and 4 and the con.
sequential provisions but also under section 6.
(3)that the power conferred on appellate or other courts by section 1 1 (1) of the Act is of the same nature and chara cteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 and 4.
(4)that the provisions of section 6.
(1) restrict the absolute and unfettered discretion implied by the word ,may" in section 11 (1), and the entirety of section 6 (1) applies to guide or con dition the jurisdiction of the High Court under section 11(1).
(5)that the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when section 6 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.