2025 INSC 540 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2065 OF 2025

[Arising out of SLP (CRL.) NO. 368 OF 2020]

CHELLAMMAL AND ANOTHER …APPELLANT S

VERSUS

STATE REPRESENTED BY THE

INSPECTOR OF POLICE …RESPONDENT

J U D G M E N T

DIPANKAR DATTA, J.

1. This appeal, by special leave, assails the judgment and order dated

5

th

November, 2019

1

, passed by a learned Judge of the High Court of

Judicature at Madras, partly allowing the appellants’ criminal appeal

2

under Section 374(2), Code of Criminal Procedure

3

.

2. The two appellants, mother-in-law and husband, respectively, of the

deceased were jointly tried

4

for commission of offences punishable under

Section 304-B and Section 498A, Indian Penal Code

5

. The Sessions

Judge (Mahila Court), Coimbatore

6

, vide its judgment and order dated

25

th

May, 2012, acquitted the appellants of the charge under Section

304-B, IPC but convicted them under Section 498-A, thereof. While the

1

impugned order

2

Crl. A No. 345/2012

3

Cr. PC

4

S.C. No.37 of 2009

5

IPC

6

Sessions Judge

2

1

st

appellant was sentenced to a year’s rigorous imprisonment, the 2

nd

appellant was sentenced to two years’ rigorous imprisonment. Both the

appellants were sentenced to fine too.

3. The High Court, vide the impugned order, maintained the conviction

of the appellants under Section 498A, IPC, together with the sentence

of a year’s rigorous imprisonment imposed on the 1

st

appellant; however,

the sentence of two years rigorous imprisonment imposed on the 2

nd

appellant was reduced to a year’s rigorous imprisonment. The sentence

of fine was not touched.

4. It has been ascertained in course of hearing that the appellants have

not been in prison even for a single day.

5. We have heard Mr. N. Rajaraman, learned counsel for the appellants

and Mr. V. Krishnamurthy, learned senior counsel and Additional

Advocate General for the respondent-State Tamil Nadu at some length.

6. The date of offence relates back to 11

th

January, 2008. It was the

birthday of the girl child of the 2

nd

appellant and the deceased. A quarrel

erupted over how to celebrate the child’s birthday with the deceased and

the 1

st

appellant having different ideas. The 1

st

appellant had her way

with the support of the 2

nd

appellant. This infuriated the deceased, who

was only 19 years old, to set herself ablaze. Ultimately, she passed away

on 16

th

January, 2008 because of the burn injuries sustained by her. In

the dying declaration of the deceased (dated 11

th

January, 2008), we

find that she truthfully declared that the appellants never demanded

dowry. This paved the way for the appellants’ acquittal for the graver

3

offence of dowry death. However, we have found allegations in the dying

declaration of the deceased that the appellants occasionally beat her as

well as hurled abuses towards her by calling her a mental patient. The

Sessions Judge and the High Court having returned finding of facts on

appreciation of the evidence on record that the appellants are guilty of

the offence under Section 498A, IPC, we do not propose to interfere with

the conviction.

7. However, 17 years have passed since the date of the incident. Prior

to the incident of crime, the appellants were not involved in any crime.

During these 17 years too, they did not indulge in any further crime. On

the other hand, they have looked after the child of the 2

nd

appellant and

the deceased well and she is now an adult of 19 years, purs uing her

education.

8. Based on such facts and circumstances and urging us to consider the

negative impact that could befall the now adult girl child of the 2

nd

appellant and the deceased if her grandmother and father were to be

imprisoned, Mr. Rajaraman implored this Court to set aside the sentence

of imprisonment by enhancing the fine.

9. Unfortunately, that is not a permissible course of action in view of

Section 498A, IPC. It ordains that a woman’s husband or the husband’s

relative, if found guilty of subjecting the woman to cruelty, shall be

punished with imprisonment for a term which may extend to three years

and shall also be liable to fine. Thus, fine is not an alternative to

imprisonment. What, therefore, survives for consideration is the

4

question of grant of probation, either under the Cr. PC or the Probation

of Offenders Act, 1958

7

.

10. Bare perusal of the order on sentence of the Sessions Judge and the

impugned order of the High Court reveal that both the courts omitted to

consider, and we assume it to be inadvertent, whether the appellants

could be granted the benefit of probation either under sub-section (1) of

Section 360, Cr. PC

8

or Section 4 of the Probation Act.

11. Insofar as relevant for the purpose of the present appeal, Section

360, Cr. PC enabling release on probation of good conduct ordains that

when any person not under twenty-one years of age is convicted of an

offence punishable with fine only or with imprisonment for a term of

seven years or less, and no previous conviction is proved against the

offender, if it appears to the Court before which he is convicted, regard

being had to the age, character or antecedents of the offender, and to

the circumstances in which the offence was committed , that it is

7

Probation Act

8

360. Order to release on probation of good conduct or after admonition .—(1) When

any person not under twenty-one years of age is convicted of an offence punishable with

fine only or with imprisonment for a term of seven years or less, or when any person under

twenty-one years of age or any woman is convicted of an offence not punishable with death

or imprisonment for life, and no previous conviction is proved against the offender, if it

appears to the Court before which he is convicted, regard being had to the age, character

or antecedents of the offender, and to the circumstances in which the offence was

committed, that it is expedient that the offender should be released on probation of good

conduct, the Court may, instead of sentencing him at once to any punishment, direct that

he be released on his entering into a bond, with or without sureties, to appear and receive

sentence when called upon during such period (not exceeding three years) as the Court may

direct and in the meantime to keep the peace and be of good behaviour:

Provided that where any first offender is convicted by a Magistrate of the second class not

specially empowered by the High Court, and the Magistrate is of opinion that the powers

conferred by this section should be exercised, he shall record his opinion to that effect, and

submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking

bail for his appearance before such Magistrate, who shall dispose of the case in the manner

provided by sub-section (2).

5

expedient that the offender should be released on probation of good

conduct, the Court may, instead of sentencing him at once to any

punishment, direct that he be released on his entering into a bond, with

or without sureties, to appear and receive sentence when called upon

during such period (not exceeding three years) as the Court may direct

and in the meantime to keep the peace and be of good behaviour.

12. Similarly, Section 361

9

, Cr. PC mandating special reasons to be

recorded in certain cases, provides that in any case where the Court

could have dealt with an accused person under Section 360 or under the

provisions of the Probation Act, but has not done so, it shall record in its

judgment the special reasons for not having done so.

13. Apart from Section 360 providing for the benefit of probation, which

was also previously provided by Section 562 of Code of Criminal

Procedure, 1898, we noticed that the Parliament in 1958 had enacted

the Probation Act with the avowed object of providing s cope of

reformation to convicts who deserve such benefits. Sub-section (3) of

Section 1

10

of the Probation Act stipulates that it (the Act) shall come

into force in a State on such date as the State Government may by

9

361. Special reasons to be recorded in certain cases .—Where in any case the Court

could have dealt with,—

(a) an accused person under Section 360 or under the provisions of the Probation of

Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the

time being in force for the treatment, training or rehabilitation of youthful offenders,

but has not done so, it shall record in its judgment the special reasons for not having done

so.

10

1. Short title, extent and commencement .—(1) …

(2) …

(3) It shall come into force in a State on such date as the State Government may, by

notification in the Official Gazette, appoint, and different dates may be appointed for

different parts of the State.

6

notification in the Official Gazette appoint. Section 4

11

thereof, to the

extent relevant for ascertaining who is entitled to the benefit of

probation, stipulates that when any person is found guilty of having

committed an offence not punishable with death or imprisonment for life

and the court by which the person is found guilty is 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 , then, notwithstanding anything

contained in any other law for the time being in force, the court may,

instead of sentencing him at once to any punishment, direct that he be

11

4. Power of court to release certain offenders on probation of good conduct .—

(1) When any person is found guilty of having committed an offence not punishable with

death or imprisonment for life and the court by which the person is found guilty is 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,

then, notwithstanding anything contained in any other law for the time being in force, the

court may, instead of sentencing him at once to any punishment, direct that he be released

on his entering into a bond, with or without sureties, to appear and receive sentence when

called upon during such period, not exceeding three years, as the court may direct, and in

the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that

the offender or his surety, if any, 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.

(2) Before making any order under sub -section (1) is made, the court shall take into

consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests

of the offender and of the public it is expedient so to do, in addition pass a supervision order

directing that the offender shall remain under the supervision of a probation officer named

in the order during such period, not being less than one year, as may be specified therein,

and may in such supervision order or impose such conditions as it deems necessary for the

due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender,

before he is released, to enter into a bond, with or without sureties, to observe the conditions

specified in such order and such additional conditions with respect to residence, abstention

from intoxicants or any other matter as the court may, having regard to the particular

circumstances, consider fit to impose for preventing a repetition of the same offence or a

commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender

the terms and conditions of the order and shall forthwith furnish one copy of the supervision

order to each of the offenders, the sureties, if any, and the probation officer concerned.

7

released on his entering into a bond, with or without sureties, to appear

and receive sentence when called upon during such period, not

exceeding three years, as the court may direct, and in the meantime to

keep the peace and be of good behaviour.

14. Section 19 of the Probation Act

12

, however, provides that subject to

the provisions of Section 18 thereof, Section 562 of the Code (i.e., the

Code of Criminal procedure, 1898) shall cease to apply to the States or

parts thereof in which it (the Probation Act) is brought into force.

15. Having looked at Section 19 of the Probation Act, we needed a

clarification as to whether the provisions thereof were brought into force

in the State of Tamil Nadu.

16. While the hearing was in progress, Mr. Nagamuthu, learned senior

counsel was found to be present in Court. His assistance was sought by

us.

17. Mr. Nagamuthu immediately assisted us by referring to various

precedents and later handed over a compilation of judgments on the

issue of probation.

18. Based on the same and other precedents, we propose to decide the

surviving issue in this appeal as to whether the High Court was justified

in not extending the benefit of probation to the appellants.

12

19. Section 562 of the Code not to apply in certain areas .—Subject to the provisions

of Section 18, Section 562 of the Code shall cease to apply to the States or parts thereof in

which this Act is brought into force.

8

19. Responding to our query as to whether the Probation Act has been

brought into force in the State of Tamil Nadu, as ordained in Sections

1(3) and 19 thereof, Mr. Nagamuthu referred us to the decision of this

Court in State v. A. Parthiban

13

. While submitting that the provisions

of the Probation Act were brought into force in the State of Tamil Nadu

in the year 1964, our attention was pointedly drawn to paragraph ‘10’ of

the said decision.

20. On the question whether it is a mandatory duty cast upon the court

to record reasons for not invoking Section 360, Cr. PC or Section 4 of

the Probation Act, Mr. Nagamuthu, invited our attention to the order

passed in Chandreshwar Sharma v. State of Bihar

14

. Relevant

excerpt from such order reads as follows:

“3. … From the perusal of the judgment of the learned Magistrate as

well as the court of appeal, and that of the High Court, it transpires

that none of the forums below had considered the question of

applicability of Section 360 of the Code of Criminal Procedure. Section

361 and Section 360 of the Code on being read together would indicate

that in any case where the court could have dealt with an accused

under Section 360 of the Code, and yet does not want to grant the

benefit of the said provision then it shall record in its judgment specific

reasons for not having done so. This has apparently not been done,

inasmuch as the Court overlooked the provisions of Sections 360 and

361 of the Code of Criminal Procedure. As such, the mandatory duty

cast on the Magistrate has not been performed. …”

21. However, Mr. Nagamuthu was prompt in submitting that the decision

in Chandreshwar (supra) had no occasion to deal with the Probation

Act and, therefore, it is not expressly held that the Probation Act also

casts such duty; however, the same being a beneficial legislation, he

13

(2006) 11 SCC 473

14

(2000) 9 SCC 245

9

submitted that this Court may draw analogy from Sections 360 and 361,

Cr. PC and hold that after recording a conviction it is mandatory for the

courts to consider the stated circumstances and, instead of sentencing

the offender at once to any punishment, determine whether he deserves

extension of the benefit of Section 4 of the Probation Act.

22. Mr. Nagamuthu also cited the following decisions where law has been

laid down to the effect as noted below:

(i) Ishar Das v. State of Punjab

15

, where it has been held that

Section 4(1) of the Probation Act makes no distinction between

a convict below 21 years or otherwise and it is applicable to all

ages.

(ii) Dalbir Singh v. State of Haryana

16

, where this Court

emphasized that the courts have to form an opinion that it is

expedient to release the offender on probation and such

opinion is mandatory.

(iii) Jagdev Singh and other v. State of Punjab

17

, holds that it

is permissible for the Supreme Court to deal with the plea of

application of the Probation Act for the first time in special

circumstances, where the relevant material relating to the

circumstances in which an offence is committed is on the

record and that this Court may justifiably grant such benefit to

an appellant while finding him guilty; however, in the absence

15

(1973) 2 SCC 65

16

(2000) 5 SCC 82

17

(1974) 3 SCC 412

10

of materials, such a prayer may well be disallowed if made for

the first time on appeal by special leave.

(iv) While granting benefit of Section 4 of Probation Act, this Court

in Rajbir v. State of Haryana

18

held that the circumstances

of the case, the nature of the offence and the character of the

offender have to be taken into account.

(v) In MCD v. State (NCT of Delhi)

19

, construing the word “shall”

appearing in sub-section (2) of Section 4 of the Probation Act

as mandatory, this Court held that before granting an order for

probation, it is essential to obtain the report of the Probation

Officer; however, the court may not be bound thereby.

23. At the dawn of this century, this Court in Commandant, 20

th

Battalion, ITB Police v. Sanjay Binjola

20

dwelled on the object of the

Probation Act and what was held has been echoed, fairly recently, in

Lakhvir Singh v. State of Punjab

21

. After noticing the Statement of

Objects and Reasons

22

of the Probation Act, the coordinate Bench in the

latter decision observed that the SoR explains the rationale for the

enactment and its amendments : to give the benefit of release of

offenders on probation of good conduct instead of sentencing them to

imprisonment. Thus, the increasing emphasis on the reformation and

rehabilitation of offenders as useful and self-reliant members of society

18

(1985) Supp SCC 272

19

(2005) 4 SCC 605

20

(2001) 5 SCC 317

21

(2021) 2 SCC 763

22

SoR

11

without subjecting them to the deleterious effects of jail life is what is

sought to be subserved.

24. The decision in Hari Singh v. Sukhbir Singh

23

provides the guiding

light as to how first-time offenders are to be dealt. It was observed

therein that:

“8. … Many offenders are not dangerous criminals but are weak

characters or who have surrendered to temptation or provocation. In

placing such type of offenders, on probation, the court encourages

their own sense of responsibility for their future and protects them

from the stigma and possible contamination of prison. In this case, the

High Court has observed that there was no previous history of enmity

between the parties and the occurrence was an outcome of a sudden

flare up. These are not shown to be incorrect. We have already said

that the accused had no intention to commit murder of any person.

Therefore, the extension of benefit of the beneficial legislation

applicable to first offenders cannot be said to be inappropriate.”

25. In Gulzar v. State of Madhya Pradesh

24

, the following instructive

passages are found:

“11. Where the provisions of the PO Act are applicable the employment

of Section 360 of the Code is not to be made. In cases of such

application, it would be an illegality resulting in highly undesirable

consequences, which the legislature, who gave birth to the PO Act and

the Code wanted to obviate. Yet the legislature in its wisdom has

obliged the court under Section 361 of the Code to apply one or the

other beneficial provisions; be it Section 360 of the Code or the

provisions of the PO Act. It is only by providing special reasons that

their applicability can be withheld by the court. The comparative

elevation of the provisions of the PO Act are further noticed in sub-

section (10) of Section 360 of the Code which makes it clear that

nothing in the said section shall affect the provisions of the PO Act.

Those provisions have a paramountcy of their own in the respective

areas where they are applicable.

12. … The scope of Section 4 of the PO Act is much wider. It applies to

any person found guilty of having committed an offence not punishable

with death or imprisonment for life. Section 360 of the Code does not

provide for any role for Probation Officers in assisting the courts in

relation to supervision and other matters while the PO Act does make

23

(1988) 4 SCC 551

24

(2007) 1 SCC 619

12

such a provision. While Section 12 of the PO Act states that the person

found guilty of an offence and dealt with under Section 3 or 4 of the PO

Act shall not suffer disqualification, if any, attached to conviction of an

offence under any law, the Code does not contain parallel provision.

Two statutes with such significant differences could not be intended to

co-exist at the same time in the same area. Such co-existence would

lead to anomalous results. The intention to retain the provisions of

Section 360 of the Code and the provisions of the PO Act, as applicable

at the same time in a given area, cannot be gathered from the

provisions of Section 360 or any other provision of the Code. Therefore,

by virtue of Section 8(1) of the General Clauses Act, where th e

provisions of the Act have been brought into force, the provisions of

Section 360 of the Code are wholly inapplicable.”

26. On consideration of the precedents and based on a comparative

study of Section 360, Cr. PC and sub-section (1) of Section 4 of the

Probation Act, what is revealed is that the latter is wider and expansive

in its coverage than the former. Inter alia, while Section 360 permits

release of an offender, more twenty-one years old, on probation when

he is sentenced to imprisonment for less than seven years or fine,

Section 4 of the Probation Act enables a court to exercise its discretion

in any case where the offender is found to have committed an offence

such that he is punishable with any sentence other than death or life

imprisonment. Additionally, the non-obstante clause in sub-section gives

overriding effect to sub-section (1) of Section 4 over any other law for

the time being in force. Also, it is noteworthy that Section 361, Cr. PC

itself, being a subsequent legislation, engrafts a provision that in any

case where the court could have dealt with an accused under the

provisions of the Probation Act but has not done so, it shall record in its

judgment the special reasons therefor.

13

27. What logically follows from a conjoint reading of sub-section (1) of

Section 4 of the Probation Act and Section 361, Cr. PC is that if Section

360, Cr. PC were not applicable in a particular case, there is no reason

why Section 4 of the Probation Act would not be attracted.

28. Summing up the legal position, it can be said that while an offender

cannot seek an order for grant of probation as a matter of right but

having noticed the object that the statutory provisions seek to achieve

by grant of probation and the several decisions of this Court on the point

of applicability of Section 4 of the Probation Act, we hold that, unless

applicability is excluded, in a case where the circumstances stated in sub-

section (1) of Section 4 of the Probation Act are attracted, the court has

no discretion to omit from its consideration release of the offender on

probation; on the contrary, a mandatory duty is cast upon the court to

consider whether the case before it warrants releasing the offender upon

fulfilment of the stated circumstances. The question of grant of probation

could be decided either way. In the event, the court in its discretion

decides to extend the benefit of probation, it may upon considering the

report of the probation officer impose such conditions as deemed just

and proper. However, if the answer be in the negative, it would only be

just and proper for the court to record the reasons therefor.

29. For the foregoing reasons and in the light of the factual matrix, we

are unhesitatingly of the opinion that the Sessions Judge and the High

Court by omitting to consider whether the appellants were entitled to

the benefit of probation, occasioned a failure of justice. Consequently,

14

there was no worthy consideration as to whether the appellants could

be extended the benefit of probation.

30. We are conscious that in MCD (supra), since followed in State of

Madhya Pradesh v. Man Singh

25

, this Court has held that the report

of the probation officer referred to in sub-section (2) of Section 4 of the

Probation Act is a condition precedent and, therefore, must be complied

with by the trial courts and the high courts. Importantly, it has also been

held that the courts may not be bound by such report. In such view of

the matter, we need to make appropriate directions.

31. Accordingly, while maintaining the conviction recorded against the

appellants but looking to the facts and circumstances, we are inclined to

remit the matter to the High Court for limited consideration of the

question of grant of probation to the appellants upon obtaining a report

of the relevant probation officer. It is ordered accordingly.

32. Till such time the appropriate Bench of the High Court decides the

question as indicated above, the order of this Court dated 10

th

January,

2020, granting the appellants exemption from surrendering will

continue.

33. This appeal, accordingly, stands disposed of on the aforesaid terms.

34. Pending applications, if any, stand closed.

25

(2019) 10 SCC 161

15

35. Before parting, we record our sincere appreciation for the invaluable

assistance rendered to us by Mr. Nagamuthu.

……..……..……………J.

(DIPANKAR DATTA)

….……..………………J.

(MANMOHAN)

NEW DELHI.

APRIL 22, 2025.