The High Court of Kerala, in the case of Abdul Rahoof v. State of Kerala & Ors. (2020) has stated that the first-time offenders in theft do not have to be imprisoned citing the provision under Section 360(3) of Criminal Procedure Code (CrCP) and Section 3 of Probation of Offenders Act, 1958 (POA).
Section 360(3) CrCP states, “In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition”.
Further Section 3 of the POA, 1958 gives power to Indian Courts to release certain offenders after admonition. The Kerala High Court also refers to the poem of the very well-renowned Malayalam Poet Ayyappa Paniker. Poet Ayyappa Paniker in his famous poem ‘Moshanam’ when translated to English says,
“Just because I have stolen a few things, why should you call me a thief?
Whenever one steals something good, you people raise a
clamour – for nothing and dub him a thief, a thief!
It is the fault of your laws,
Change you then your law, I say,
Lest your laws should change you”
However, the Kerala High Court while giving their opinion disagreed with the concluding lines of the poem stating that such law is already available. The Court further stated, “the criminal justice delivery system can attain its ultimate aim only with the help of society. To err is human. If a person commits some small mistakes, Section 360 CrPC and Section 3 of the POA will protect that person. But society should also protect him by not treating him as a criminal or a thief. If a person commits a small theft, society must reform him..”
This statement was given by the Kerala High Court in the present case because in the cited case, it was said that the prosecution witnesses blamed the accused by spreading a rumour that he is a thief who stole a motor. When the accused along with his father went to the person’s house whose motor he is accused to have stolen in order to sort the issue, a fight broke down between the accused and the witnesses of the prosecution, and then the accused stabbed two of them in the abdomen.
When they filed a suit against the accused, a counter case was filed by the accused saying that it was the prosecution witnesses who attacked him first and only then he had to stab them in private self-defence. The trial court found the accused guilty, however, the Kerala High Court acquitted him.
Now, the words regarding first-time offenders in theft by the Kerala High Court has both pros and cons. The advantage is that it will fulfil the purpose of punishments in criminal law that is reformation, so if a person steals something, he/she can be acquitted with a warning to change his/her acts for the better. This reformation is sought to be done not by punishing the person, instead through taking the help of society to do so.
Whereas, the disadvantage is that a person who is guilty of being a thief can take advantage of this and use it to acquit himself/herself. Although, overall the discussed provisions and the Court’s words are a chance for first-time offenders to redeem themselves without unjustly serving imprisonment. But, it is also important for society to look at that person in a way that he/she is redeemable and not characterise him/her as only a thief.