Singh & Ors Vs. State of Punjab Through Secretary Home Affairs  Insc
455 (27 July 2006)
Pasasyat & Lokeshwar Singh Panta
out of SLP (Crl.) No. 746 of 2006) ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court.
appellants had filed Criminal Appeal No. 24-SB of 1993 questioning the
correctness of the judgment of learned Additional Judge, Amritsar sentencing
each of the accused to undergo rigorous imprisonment for five years and to pay
a fine of Rs.5,000/- each with default stipulation for alleged commission of
offence punishable under Section 307 read with Section 34 of the Indian Penal
Code, 1860 (in short the 'IPC').
were also convicted in terms of Section 324 read with Section 34 IPC and
sentenced to undergo rigorous imprisonment for one year each. Further each was
convicted for offence punishable under Section 323 read with Section 34 IPC.
The accusation which led to the trial of the accused person was that in
furtherance of the common object of an unlawful assembly there was a murderous
assault on Bhajan Singh (PW3) and for causing injuries on Malkha Singh (PW4).
were originally six accused persons and two of them namely Dilbagh Singh and Jaswant
Singh were acquitted by the trial court.
High Court after analyzing the evidence and the conclusions of the trial court
held that the appellants were rightly convicted for offences punishable under
Section 324 read with Section 34 IPC and Section 323 read with Section 34 IPC.
However, it was held that the accusations for commission of offence punishable
under Section 307 read with Section 34 IPC were not established. The sentences
in respect of offences punishable under Section 324 read with Section 34 and
Section 323 read with Section 34 IPC were upheld.
support of the appeal learned counsel for the appellants submitted that though
there are sufficient reasons to challenge the judgment on merits yet they are
restricting the challenge to non-consideration of the applicability of
provisions contained in Section 4 of the Probation of Offenders Act, 1958 (in
short the 'Probation Act') and Section 360 of the Code of Criminal Procedure
Code, 1973 (in short the 'Code').
contra learned counsel for the respondent-State submitted that looking at the
gravity of the offence, it was not necessary for the High Court to consider the
benevolent provisions contained in the Probation Act and/or Section 360 of the
the provisions of the Probation Act are applicable the employment of Section
360 of the Code is not to be made.
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.
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.
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.
of Probation Act in some particular area excludes the applicability of the
provisions of Sections 360 and 361 of the Code in that area.
High Court has not considered the issue relating to applicability of the
provisions aforenoted. Therefore, 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 appellants are concerned and pass appropriate order within
three months from the receipt of this order. We make it clear that we have not
expressed any opinion in that regard.
appeal is allowed.