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TMI Blog1969 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Offenders Act, 1958. 2. The prosecution case, briefly stated, is that on 14th June, 1967 at about 6.30 a.m. respondents Nos. (1) to (7) stopped the truck carrying 60 gallons of liquor for distribution to various persons. The truck was prevented from proceeding in the direction intended and liquor was removed from the truck and kept in the balcony of the house of a washerman residing nearby. The Police were informed by complainant Atmaram Revodker about this illegal action on the part of these respondents. The Police after necessary investigation challaned them. They were charged by the learned Sessions Judge, Panjim, under Section 395 of the Penal Code. (Dacoity). 3. I shall first consider the appeal filed by the State against acquittal of respondents Nos. (3) to (7). It is conceded by learned Government Pleader at the Bar that on the evidence led by the prosecution the charge was not established against them either under Section 395 or Section 392. I have carefully gone through the record and I agree with him that as far as these respondents are concerned the ingredients of the offences under Sections 392 and 395 are not proved. It is extremely doubtful whether they participated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Offenders Act, 1958 before releasing them on probation of good conduct. It is not his contention that the prosecution established the charge against them under S. 395 of the Penal Code. He concedes fairly that in their case also this charge is not pressed. Mr. Y. H. Kadam, learned counsel appearing for these respondents and the respondents acquitted, submits that it was not obligatory on the part of the learned Sessions Judge to have called for the report of the probation officer before releasing the respondents Nos. (1) and (2) on probation of good conduct. He has not been able to support this submission by any reported decision. Be that as it may, I would discuss the scheme of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act') and endeavour to show that it was obligatory on the part of the learned Sessions Judge to have called for the report of the probation officer before releasing these respondents on probation of good conduct. 5. As will appear from its preamble, the Act was enacted to provide for the release of offenders on probation or after due admonition and for matters connected therewith. Section 2 is a definition provision on usual lin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof or by inserting additional conditions therein. The proviso says that no such variation shall be made without giving the offender and the surety an opportunity of being heard. The proviso conforms to the principles of natural justice. Sub-section (3) provides that notwithstanding anything hereinbefore contained, the court which passes an order under Section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him. Sub-section (1) of Section 9 relates to procedure in case of offender failing to observe conditions of bond. It provides that if the court which passes an order under Section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may Issue a warrant for his arrest. Section 13 contemplates appointment of a probation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offender should be dealt with under either of the said two sections, it can pass the sentence of imprisonment on the offender after recording the reasons for doing so. It is suggested that the expression if any in sub-s. (2) of S. 6 indicates that it is open to the Court to call for a report or not; but the word shall makes it a mandatory condition and the expression if any can in the context only cover a case where notwithstanding such requisition the Probation Officer for one reason or other has not submitted a report. Briefly stated the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under S. 6(1) of the Act by the Court. It was also observed by the Supreme Court that:- The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. In 'Raghunath v. Mrs. T.P. Faria', AIR 1967 Goa 95, this Court also had the occasion to consider the scheme of Sections 3, 4 and 11 of the Act and, in that connection, the following observations are not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Supreme Court in regard to the expression if any in the context of sub-section (2) of Section 6 will also seem to apply to the passing of the order under sub-section (2) of Section 4. The legislative command, in effect and substance, is that the Court shall take into consideration the report of the probation officer. For my part, as I see this matter, the word shall used in this sub-section is a word of command which is to be taken as mandatory, and not directory. It is true that the word shall in a statute does not necessarily mean that in every case it will have mandatory effect and not directory. Its meaning will vary in colour and content according to its context. In 'Jagan Nath v. Jaswant Singh', AIR 1954 S.C. 210 (214), the provisions of Section 82 of the Representation of the People Act, 1951 relating to impleading of parties, were regarded as directory in spite of the word shall used therein. This was on the analogy of Order XXXIV, Rule 1, C.P.C. This section was not regarded as mandatory because non-compliance was not made penal. In 'Hari Vishnu v. Ahmad Ishaque.', AIR 1955 SC 233 (245), relying on a famous case 'Julius v. Bishop of Oxford& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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