Supreme Court: Explaining the law on probation of offenders, the bench of Dipak Misra and Amitava Roy, JJ said that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison.
The Court further explained that if the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the Probation of Offender Act, 1958.
The Court said that the parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. [Mohd. Hashim v. State of U.P., 2016 SCC OnLine SC 1440, decided on 28.11.2016]