SUPREME COURT OF INDIA
Chhanni
Vs
State of Uttar Pradesh
Appeal (Crl.) 721 of 2006 (Arising Out of Slp (Crl.) No. 2700 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
06.07.2006
ARIJIT PASAYAT, J.
Leave granted.
Appellant calls in question legality of the order passed by a learned Single
Judge of the Allahabad High Court, Lucknow Bench, Lucknow by which three
appeals were disposed of rejecting the prayer made for modification of the
judgment. Criminal Appeal No.492 of 1981 was filed by the State of U.P. against
the present appellant who had filed Criminal Appeal No.276 of 1981. Criminal
Appeal No.541 of 1983 was filed by the State of U.P. against four other persons
who had faced trial before the learned II Additional Sessions Judge, Unnao who
directed acquittal of Mohan Lal, Bhagwati, Girish and Vinod Kumar who were
respondents in Criminal Appeal No.541 of 1983 before the High Court. Appellant
Chhanni was convicted for the offences punishable under Sections 304 Part II,
323/149 and 147 of the Indian Penal Code, 1860 (in
short the 'IPC'). He was sentenced to five years RI on the first count and six
months RI and fine of Rs.250/- on the second count and one year RI on the third
count. The High Court dismissed the appeal filed by the State against the
acquittal of Mohan Lal and three others and the appeal for enhancement of
sentences. So far as the appeal filed by present appellant is concerned, same
was partly allowed. His conviction under Section 304 Part II IPC and the
sentence thereunder was set aside, but he was convicted under Section 323 IPC
and sentenced to undergo one year RI. His conviction under Section 323 read
with Section 149 IPC for causing simple hurt to Raja Ram was altered to one
under Section 323 IPC but the sentence was maintained for such conviction. His
conviction under Section 147 IPC was set aside.
An application was filed by the appellant before the High Court which was
numbered as Criminal Miscellaneous Application No.469 of 2006 for modification
of the judgment and order dated 25.8.2004. Prayer was that he should be
directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 (in short the 'Probation
Act') or in the alternative under Section 360 of the Code
of Criminal Procedure, 1973 (in short the 'Code'). The High Court noted
that there was no provision for permitting modification of an order and in fact
the plea which was pressed into service was not urged before the High Court
when the Criminal Appeal was heard. Accordingly the application was rejected.
Learned counsel for the appellant submitted that when the matter was called
before the High Court, the appellant's counsel was not present. But considering
the fact that the appeal was pending for more than a decade, the High Court
heard the learned counsel for the State and passed a judgment the modification
of which was sought for. Because of genuine difficulties the appellant's
counsel could not be present. In any event the High Court had set aside the
conviction in terms of Section 304 Part II IPC.
There is no appearance on behalf of the State of U.P. in spite of notice.
Where the provisions of the Probation Act are applicable the employment of
Section 360 of the Code is not to be made. In cases of such application, it
would be an illegality resulting in highly undesirable consequences, which the
legislature, who gave birth to the Probation Act and the Code wanted to
obviate. Yet the legislature in its wisdom has obliged the Court under Section
361 of the Code to apply one of the other beneficial provisions; be it Section
360 of the Code or the provisions of the Probation Act. It is only by providing
special reasons that their applicability can be withheld by the Court. The
comparative elevation of the provisions of the Probation Act are further
noticed in sub-section (10) of Section 360 of the Code which makes it clear
that nothing in the said Section shall affect the provisions of the Probation
Act. Those provisions have a paramountcy of their own in the respective areas
where they are applicable.
Section 360 of the Code relates only to persons not under 21 years of age
convicted for an offence punishable with fine only or with imprisonment for a
term of seven years or less, to any person under 21 years of age or any woman
convicted of an offence not punishable with sentence of death or imprisonment
for life. The scope of Section 4 of the Probation Act is much wider. It applies
to any person found guilty of having committed an offence not punishable with death
or imprisonment for life. Section 360 of the Code does not provide for any role
for Probation Officers in assisting the Courts in relation to supervision and
other matters while Probation Act does make such a provision. While Section 12
of the Probation Act states that the person found guilty of an offence and
dealt with under Section 3 or 4 of the Probation Act shall not suffer
disqualification, if any, attached to conviction of an offence under any law,
the Code does not contain parallel provision. Two statutes with such
significant differences could not be intended to co-exist at the same time in
the same area. Such co-existence would lead to anomalous results. The intention
to retain the provisions of Section 360 of the Code and the provisions of the
Probation Act as applicable at the same time in a given area cannot be gathered
from the provisions of Section 360 or any other provision of the Code.
Therefore, by virtue of Section 8(1) of the General Clauses Act, where the
provisions of the Act have been brought into force, the provisions of Section
360 of the Code are wholly inapplicable.
Enforcement of Probation Act in some particular area excludes the applicability
of the provisions of Sections 360, 361 of the Code in that area.
The High Court is justified in its view that there is no provision for
modification of the judgment. But considering the peculiar circumstances we
direct the High Court to consider the application under the Probation Act or
Section 360 of the Code, as the case may be, so far as the appellant is
concerned and pass the appropriate order within three months from the receipt
of this order. We make it clear that we have not expressed any opinion as
regards the merits.
The appeal is allowed.