P L D 1949 Lahore 372 (PLP)

S. A. RAHMAN, J. ‑This order will dispose of two revision petitions presented on behalf of Muhammad Zaman and Abdul Sattar in two different cases Criminal Revision Nos. 210 and 211 of 1948. The facts of the two cases are similar and the same legal points are involved in them. It is, therefore, convenient to dispose of them together. The two petitioners were convicted by a 1st Class Magistrate at Mianwali, in the first case, under section 458, Indian Penal Code and having regard to the fact that they were below 12 years of age and were first offenders, they were released on probation of good conduct on their furnishing surety bonds in the sum of Rs. 1,000 each, for a period of two years, to appear and receive sentence whenever called upon during that period and in the meantime to keep the peace and be of good behaviour. The learned Magistrate added that in default of their furnishing the requisite surety bonds they would undergo rigorous imprisonment for the same period of two years. In the second case, the two petitioners were convicted under section 457, Indian Penal Code and released on furnishing similar surety bonds for a period of two years. The same formula of punishment of two years' rigorous imprisonment in default of the furnishing of surety bonds was added by the learned Magistrate. On appeal, the learned Sessions Judge, Mianwali held in the first case that the conviction should have been only under section 457, Indian Penal Code. He modified the conviction accordingly but otherwise refused to interfere with the order passed by the learned Magistrate. In the second case the conviction as well as the order of the learned Magistrate was upheld. Some other boys were also prosecuted in the same cases but as they have been acquitted by the learned Sessions Judge I need not concern myself with their case. The first point raised by Mr. Hamid‑ud‑Din on behalf of the peti tioners is that it was incumbent on the learned trial Magistrate to record a specific finding that the accused persons had attained sufficient maturity of understanding to judge of the nature and consequences of their conduct within the meaning of section 83 of the Indian Penal Code. In this connection he relied on In re. Marimuthu (1 Ind. Cas. 807), a Single Bench ruling of the Madras High Court, in which it was held that a child between 7 and 12 years of age cannot be convicted of any offence unless it is expressly found that the child has attained sufficient maturity of understanding to judge of the nature and consequences of the acts done. The learned Judge followed a Division Bench ruling of the Calcutta High Court reported as Queen Empress v. Hakimuddin (I L R 27 Cal. 133). In the Madras case, a girl aged about 10 had been convicted of an offence under section 381 with respect to a silver button worth 8 annas belonging to her master and had been sentenced to one month's simple imprisonment. Abdul Rahim, J. observed to the effect that the Magistrate did not appear to have applied his mind to the requirements of section 83 and further remarked that the fact which transpired on the evidence namely that the girl picked up the button and gave it to her mother, did not in itself show that she knew that she was doing anything wrong. In the Calcutta case, a boy aged about 9, was found in the com pound of the Commissioner of Patna's residence at 3 a.m. one morning with a brass Iota which he was offering for sale. It transpired that the Iota belonged to one of the constables there. The case was tried summarily by a Deputy Magistrate who sentenced the accused to three months' rigorous imprisonment or in lieu thereof to be detained in the Reformatory for seven years. The learned Judges observed that it would be generally desirable that, when it is procurable, there should be some reliable evidence to show that the accused person is a youthful offender in such cases. The decision in the case, however, was that the offence of which the petitioner had been convicted, did not come within the provisions of the Reformatory Schools Act. In the end of the judgment, the attention of the learned Magistrate was also drawn to section 83 of the Indian Penal Code and it was added that he should have considered the age of the boy, arrived at a specific finding that the accused had attained sufficient maturity of understanding to judge of the nature and consequences of his conduct. It was pointed out that the fact that the boy offered the Iota for sale very soon after taking it and in the same locality, was remarkable and would seem to throw some doubt whether the nature and consequence of his act. A perusal of these rulings does not lead to the conclusion that it is necessary for the prosecution to lead positive evidence to show that art accused person below 12 years of age had arrived at sufficient maturity of understanding within the meaning of section 83 of the Indian Penal Code. It would appear from these authorities that it would be permissible to arrive at that finding even on a consideration of the, circumstances of the particular case. This view is supported by another Division Bench judgment of the Madras High Court In re. Queen v. Krishna (I L R 6 Mad, 373). The learned judges expressed the opinion that in that case, since the child took the ornament and immediately after either pledged or sold it for five annas the very act of the child seemed to show that he had attained sufficient maturity of understanding to judge of the nature and consequences of his conduct. In the case giving rise to Criminal Revision No. 211, at least, the learned Sessions Judge has noticed this point in his judgment and has pointed out that no evidence was led on behalf of the accused persons to show that they had not arrived at sufficient maturity of understanding. This interpretation of section 83 would appear to be in accord with the general principle that any exception relied upon by an accused person should be specially pleaded and established by evidence on his behalf. Reference may with advantage be made in this connection to 22 Weekly Reporter Criminal 27‑28 (1874) where, in the case of Lakhini Agradanini, Jackson, J. held that the non‑attainment of maturity in the case of child over 7 and under 12, would have apparently to be specially pleaded and proved. In the present case, the prosecution allegations were that the accused persons had broken open the locks on two premises and to have gone inside for the purpose of committing theft. From one of the premises they actually stole one seer of pulses. The second shop happened to be of a butcher and they could get nothing from there. The very act of these boys in breaking open the locks would seem to indicate that they were not suffering from immaturity of understanding. I would, therefore, hold that there is not much substance in the point raised by Mr. Hamid‑ud‑Din in the circumstances of these two cases. The learned counsel for the petitioners then urged that having regard to the trifling value of the stolen property the petitioners should have been let off with a mere admonition under the provisions of section 562 (1‑A) of the Criminal Procedure Code. A plain reading of that section, however, would make it clear that section 457, Indian Penal Code, is not within its purview. That section applies only to cases of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years' rigorous imprisonment. The offence under section 457, Indian Penal Code may be punishable with imprisonment up to five year's rigorous imprisonment and in certain cases with an imprisonment up to 14 years' rigorous imprisonment. This enactment, therefore, has no application to the present case. The learned counsel for the petitioners is on strong ground when he contends that the learned Magistrate acted improperly in directing at the same time as he released the petitioners under section 562 (1) Criminal Procedure Code, that in default of their furnishing the, security bonds they would suffer rigorous imprisonment for two years, Such an order finds no sanction from the language of section 552, Criminal Procedure Code. Attention is invited in this connection to Single Bench decision of this Court in Jamsher v. Emperor (A I R 1934 Lah. 582). This part of the learned Magistrate's order must, therefore, be set aside and I order accordingly. The question whether the petitioners should be detained in prison could only arise after they had failed to furnish the security bonds required of them. The petitioners had pleaded guilty at the trial of these cases, after the charges had been adequately explained to them. The property involved in this case was of very small value. Considering the facts that the petitioners are first offenders and between the ages of 7 and 12, I hold that the period of the security bonds ordered by the learned Magistrate was a little too long. It would, therefore, allow the two revision petitions to the extent of upholding the order of the trial Court con cerning the release of the petitioners on their executing security bonds in the sum Rs. of 1,000 each but the period for which these bonds should run, would be six months in each case. The part of the learned Magistrate's order in each case laying down that in default of, execution of the bonds the petitioners would undergo two years' rigorous imprisonment each, is also set aside. A. H. Revision partly allowed.