CASE NO.:
Appeal (crl.) 313 of 2008
PETITIONER:
Ramesh Dass
RESPONDENT:
Raghu Nath and Ors
DATE OF JUDGMENT: 14/02/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 313 OF 2008
(Arising out of SLP (CRL) No. 4646 of 2006)
(With Criminal Appeal No 314 of 2008 @ SLP (Crl.) 5321/2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. These two appeals have their matrix on an order passed
by a learned Single Judge of the Punjab and Haryana High
Court. By the impugned judgment a Criminal Revision was
filed by the informant and Criminal Appeal filed by the State of
Haryana seeking enhancement of the sentence were disposed
of.
Respondents faced trial for alleged commission of
offences punishable under Sections 148 and 326 read with
Section 149, Section 325 read with Section 149, Section 324
read with Section 149 and Section 323 read with Section 149
of the Indian Penal Code, 1860 (in short the 'IPC') and Chief
Judicial Magistrate, Karnal convicted and sentenced five of the
accused persons in the following manner:
Sections Imprisonment Fine
326/149 IPC Five years RI Rs.5,000/- each.
In default of payment
of fine R.I. for one year.
325/149 IPC Two years R.I. Rs.500/- each. In
default of payment
of fine R.I. for six
months
148 I.P.C. Six months R.I.
323/149 IPC Three months R.I.
All the sentences were directed to run concurrently. It
was directed that in case the fine amount imposed was
realized, an amount of Rs.20,000/- was to be paid as
compensation to the informant Pindi Dass who was injured
and also a sum of Rs.5,000/- was payable to Ramesh Dass
another injured victim.
The accused persons filed an appeal and learned
Additional Sessions Judge, Karnal reduced the sentence under
Section 326 read with section 149 IPC to three years but
upheld all other sentences and the fine imposed by the trial
Court. The accused persons filed criminal revision before the
High Court for quashing the judgment and order of conviction
of the trial Court. As noted above, the State of Haryana filed
an appeal for enhancement of the sentence and informant also
filed a revision application. The High Court dismissed the
Criminal Appeal of the State and Criminal Revision of the
injured for enhancement of sentence but modified the
judgment of courts below and directed release of the accused
persons on probation under Section 360 of the Code of
Criminal Procedure, 1973 (in short the 'Code') and enhanced
the amount of fine to Rs.15,000/- each and directed 50% shall
be payable to the injured Pindi Dass. It is to be noted that
in the meantime Pindi Dass has died.
3. Learned counsel for the informant submitted that the
direction given by the High Court cannot be maintained.
Firstly, the Probation of Offenders Act, 1958 (in short the
'Probation Act') is applicable to the State of Haryana and
therefore, Section 360 is not applicable. In any event, life
imprisonment is provided for an offence punishable under
Section 326 IPC. So, Section 360 of the Code also has no
application.
4. Learned counsel for the accused respondents supported
the judgment of the High Court. It further submitted that
considering the fact that incident took place long back, this
Court should not interfere by exercising jurisdiction under
Article 136 of the Constitution, 1950 (in short the
'Constitution'). The State of Haryana-appellant in Criminal
Appeal arising out of SLP (Crl.) No.5321 of 2006 supported the
stand of the informant who is appellant in Criminal appeal
relatable to SLP (Crl.)No.4646/2006.
5. 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.
6. 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.
7. Enforcement of Probation Act in some particular area
excludes the applicability of the provisions of Sections 360,
361 of the Code in that area.
8. The aforesaid position was highlighted in Chhanni v.
State of U.P. (2006 (5) SCC 396) and Daljit Singh and Ors. v.
State of Punjab (2006 (6) SCC 159).
9. Further, Section 360(1) of the Code itself provides that if
for any offence life sentence is provided for, section 360 of the
Code would have no application.
10. Undisputedly, in Jagdev Singh v. State of Punjab (1973
SCC (Crl.) 977) it was held that Section 360 has no application
since under Section 326 IPC the said offence carries life
imprisonment. In any event, that question is academic.
11. In view of what has been stated above, Section 360 of the
Code has no application to the facts of the present case. The
High Court seems to have lost sight of the correct position in
law.
12. Above being the position, the matter is remitted to the
High Court to consider about the non-applicability of Section
360 of the Code both on the ground that the Probation Act has
application and Section 326 carries life imprisonment.
13. The appeals are allowed with no order as to costs.