(Dipankar Datta and Satish Chandra Sharma, JJ.)
Dayanand Yadav _________________________________ Appellant;
v.
State of Bihar __________________________________ Respondent.
Criminal Appeal No. of 2026 [Arising out of SLP (Crl.) No. 7111 of 2026]§, decided on July 13, 2026
The Judgment of the Court was delivered by
Dipankar Datta, J.:—
1. Leave granted.
THE APPEAL
2. Appellant lays a challenge to the final judgment and order dated 26th June, 20251 of the High Court of Judicature at Patna2, dismissing his petition for criminal revision3. While so dismissing, the High Court affirmed the judgment and order dated 13th August, 2024 of the Sessions Judge, Khagaria4 of dismissal of the appellant’s appeal5, which in turn, had affirmed the judgment of conviction and order of sentence dated 30th July, 2013, passed by the Judicial Magistrate, First Class, Khagaria6, in the trial7.
3. The trial magistrate convicted the appellant for the offences punishable under sections 25(1-B)a and 26(1) of the Arms Act, 19598 and sentenced him to rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 5,000/- for each offence, with a default stipulation of further rigorous imprisonment for 6 (six) months. Both sentences were directed to run concurrently.
FACTUAL BACKGROUND
4. The facts, giving rise to the present appeal, may be summarised as follows:
4.1. The prosecution case was set in motion in the wee hours of 10th August, 2010, when the Station House Officer9, upon receiving secret information that certain criminals were gathering in Nanhku Mandal Tola, constituted a raiding party10 and proceeded towards the location.
4.2. The raiding party reached Nanhku Mandal Tola and proceeded to the dwelling of one Asharfi Yadav, and found the appellant sleeping on a raised platform outside it.
4.3. The raiding party cordoned off the premises. Upon being roused, the appellant attempted to flee but was apprehended. On interrogation, the apprehended person identified himself as the appellant herein.
4.4. The bedding on which the appellant was sleeping was searched. Thereupon, 1 (one) regular .315 bore country-made rifle and a redcoloured bindoliya (bandolier) fitted with a chain containing 16 (sixteen) live cartridges of .315 bore were recovered from beneath the bedding. As the appellant failed to produce a valid license or documents for the recovered firearm and ammunition, the items were seized at the spot. No independent witnesses from the locality could be secured at the odd hours, and consequently, two members of the raiding party, viz. P.W.1 and P.W.2 were designated as seizure witnesses. A formal search-cum-seizure list was prepared on the spot, which was duly signed by the appellant.
4.5. Based thereon, an FIR11 came to be registered against the appellant on the same day, for the offences under sections 25(1-B)(a) and 26 of the Arms Act.
4.6. Upon completion of the investigation, the Investigating Officer submitted a charge-sheet, and the trial magistrate took cognizance of the offences. Charges were framed against the appellant on 24th February, 2011, to which he pleaded not guilty and claimed to be tried.
4.7. Prosecution examined 8 (eight) witnesses, all of whom were police personnel, and led material documentary evidence, including the Arms and Ammunition Examination Report prepared by P.W.4 (Sudhir Sinha, Sergeant Major). The defence examined 1 (one) witness, D.W.1 (Ratan Yadav), who deposed to a long-standing land dispute between the appellant and Asharfi Yadav, and further alleged that the police first apprehended Asharfi Yadav, released him after accepting a bribe, and substituted the appellant instead as the offender. This testimony, however, was discredited in cross-examination.
4.8. The trial magistrate, vide judgment and order dated 30th July, 2013, found the prosecution to have been successful in proving its case and, accordingly, recorded that the appellant was guilty, convicted and sentenced him as noted above. In so sentencing, the trial magistrate declined to extend the benefit of the Probation of Offenders Act, 195812, holding that it would not be just or appropriate, notwithstanding that it was the appellant’s first offence, having regard to his age, character, and the nature of the offence.
THE SUBSEQUENT PROCEEDINGS
5. The appeal13 carried from the aforesaid conviction and sentence having been dismissed by the appellate court, the appellant approached the High Court. Before it, the appellant primarily contended that no independent witnesses were examined to corroborate the seizure and, thus, the prosecution’s case was unworthy of acceptance.
6. The High Court held that the absence of independent seizure witnesses did not vitiate the prosecution, as no personal enmity between the appellant and the police was alleged, nor was it suggested in cross-examination that the appellant was falsely implicated due to such enmity; also, the raid was conducted at night, making it difficult to secure independent witnesses. Relying on Baljinder Singh @ Ladoo v. State of Punjab14, the High Court also held that examination of independent witnesses is not indispensable. The evidence was believed leading to upholding of the recovery of the functional firearm and live cartridges, and there being no sufficient ground to interfere with the concurrent findings of fact, conviction, and sentence, the revision stood dismissed.
7. Pertinently, both the appellate court and the High Court, while affirming the conviction and sentence, do not appear to have adverted to the issue of applicability of Section 360, Code of Criminal Procedure, 197315 or the PoO Act. At the same time, we do not find any submission to this effect on behalf of the appellant having been recorded in both these judgments.
SUBMISSIONS OF THE PARTIES
8. Argument has been advanced by learned counsel for the appellant. Although the conviction has been faintly assailed, the submission is primarily directed against the sentence. According to him, the trial magistrate and the appellate court committed an error of law by not extending the benefit of Section 360 of the Cr. PC or the PoO Act to the appellant, especially considering it was his first offence, and he possessed no prior criminal antecedent; and the High Court too fell in grave error in not extending to the appellant the benefit of probation upon due consideration of all factors as per the mandate of law.
9. Per contra, the learned counsel for the respondent-State highlighted that there is no material contradiction or inconsistency in the testimonies of the prosecution witnesses and that the appellant has failed to give any reasonable explanation for the possession of firearms or to produce a valid license for the same, and it is based on these facts that the Courts below have rightly convicted the appellant. Therefore, the impugned judgment warrants no interference.
ANALYSIS
10. We have heard the parties and perused the materials on record.
11. The challenge in the present case is not so much to the conviction as to the sentence; yet, we have looked into the evidence to satisfy our conscience. Upon such consideration, we see no reason to disturb concurrent findings returned by the three courts that the appellant had committed the offences for which he was charged; therefore, the findings with respect to conviction of the appellant stand confirmed.
12. However, as noted above, neither the appellate court nor the High Court addressed the trial magistrate’s refusal to grant the appellant the benefit of probation. Since neither the memorandum of appeal nor the revision petition has been placed on record, it is uncertain whether the appellant did at all raise this ground. It would, therefore be improper to attribute a failure; at the highest, it was an omission. Nevertheless, the ground based on non-grant of probation having been raised before us, we consider it prudent to examine the same having regard to its object, that is reformation, and purpose, that is rehabilitation as a useful member of society.
13. Consequently, the sole question that would engage our consideration is whether the sentence imposed on the appellant warrants interdiction in light of the benefit of probation that the law envisages or otherwise.
14. Before moving forward, it is apposite to inform ourselves that once the PoO Act, in light of Section 19, is brought into force in a State, Section 360 Cr. PC stands excluded.
15. In Bihar, the grant of probation is governed exclusively by the PoO Act, as the PoO Act came into force in Bihar with effect from 15th June, 1958, pursuant to the notification published in the Bihar Gazette dated 06th June, 1959.
16. The trial magistrate, while adverting to the applicability of the PoO Act, refused to grant to the appellant the benefit of probation by reasoning as follows:
22. …It is true that this is the accused’s first offence and the prosecution has not proved any prior conviction against the accused; nevertheless, considering the age, character, and the nature of the offence committed by the accused, I do not deem it just or appropriate to grant the accused the benefit of any provision of the Probation of Offenders Act in lieu of a substantive sentence.
17. This being the only reason assigned, we hold that the trial magistrate failed to undertake any meaningful assessment of the factors statutorily required to be considered, namely, the age and character of the appellant, as well as the nature and circumstances of the offence, and how these considerations weighed against the grant of probation. The observation “I do not deem it just or appropriate” constitutes the conclusion and not the “special reason” that is required to be employed for denying probation.
18. It is, however, trite that the benefit of the PoO Act is neither automatic nor capable of being claimed as a matter of right. The discretion vested in the Court to release an offender on probation is required to be exercised upon a careful evaluation of all germane circumstances including, inter alia, the nature of the offence, the manner in which it was committed, the age, antecedents and character of the offender, the possibility of his reformation, and the larger interests of society. The exercise is essentially fact-centric and no singular consideration can be pedestalized to the status of a determinative test. Equally, the mere circumstance that an offence is punishable under a particular enactment cannot, in the absence of an express legislative mandate, lead to the inference that the beneficial provisions of the PoO Act stand excluded or that the Court’s discretion is otherwise fettered. Each case must, therefore, receive an independent evaluation on its own facts and the conclusion reached in one matter cannot dissociate from its factual milieu and furnish a rule of general application.
19. Reference in this regard may profitably be made to the decision of this Court in Ramji Missar v. State of Bihar16 which, inter alia, interpreted Section 4 of the PoO Act and the guiding factors which have to be considered while making an order granting the benefit of probation. The relevant paragraphs are reproduced hereinbelow:
16. Though the word “may” might connote merely an enabling or premissive 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, ‘shall 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 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 basis 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.
(emphasis ours)
20. It is clear from the aforesaid discussion that before granting the benefit of probation, the Court is required to consider a multitude of factors unique to each case including, inter alia, the nature and gravity of the offence committed by the accused and whether the offence has an adverse bearing on public order.
21. In the present case, we have already held that the trial magistrate did not record reasons commensurate with the statutory obligation while declining the appellant the benefit of probation. Ordinarily, that finding, i.e., the order is bereft of reasons, may require us to undertake an independent inquiry as to whether the appellant ought to have been extended such benefit and remit the matter back to the High Court for fresh consideration. However, upon an overall consideration of the peculiar facts and circumstances writ large, we are persuaded that such an exercise is unnecessary for the effective disposal of this appeal. We say so because, for the reasons recorded hereafter, we are inclined to interfere with the substantive sentence itself and restrict it to the period of imprisonment already undergone by the appellant. Once such a course is considered appropriate in the interests of justice, any further pronouncement on the appellant’s entitlement to probation would neither alter the ultimate relief nor serve any practical purpose.
22. The appellant was about 30 (thirty) years of age at the time of the offence, and had no prior antecedent at the time of his conviction. The incident of offence dates back to 10th August, 2010. The minimum and maximum punishment for the offence under Section 25(1-B)(a) at the relevant time was one year and three years, respectively, whereas for the offence under Section 26(1), the minimum and maximum punishment was six months and seven years, respectively.
23. Much water has flown under the bridge since then. Appellant is reportedly in custody as a convicted prisoner since 26th November, 2024. It is also found from the custody certificate dated 29th November 2025, which is part of the record, that the appellant, as an undertrial, was in custody from 11th August 2010 to 20th January 2011. Consequently, the total period of incarceration undergone by the appellant exceeds two years. In our considered opinion, having regard to the distance of time since the offence was committed, interest of justice would be sufficiently served if the sentence imposed by the trial magistrate, left undisturbed by the appellate court and the High Court, is altered to the period of imprisonment already undergone by him. Ordered accordingly.
24. Appellant is now set free and he may be released from custody, unless wanted in any other case.
25. The appeal stands disposed of on the above terms. Pending applications, if any, shall also stand disposed of.
———
1 impugned judgment
2 High Court
3 Criminal Revision No. 1052 of 2024
4 appellate court
5 Criminal Appeal No. 48 of 2013
6 trial magistrate
7 T.R. No. 1525/2013
8 Arms Act
9 P.W.6 (Sanjeev Kumar, SHO Mufassil Police Station)
10 Comprising P.W.1 (Sub-Inspector Imtiaz Jhankar), P.W.2 (Assistant Sub-Inspector Ramanuj Prasad Singh), P.W.5 (Ajay Kumar, SHO Mansi Police Station), P.W.7 (Sub-Inspector Balram Lal Dev (also the Investigating Officer)), and other armed forces/police personnel
11 FIR No. 330 of 2010
12 PoO Act
13 Criminal Appeal No. 48 of 2013
14 2024 SCC OnLine SC 2622
15 Cr. PC
16 AIR 1963 SC 1088
§ 2026 INSC 680
