Vs. The State of Uttar
Pradesh  Insc
382 (6 July 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (Crl.) No. 2700 of 2006) ARIJIT PASAYAT, J.
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.
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.
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.
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.
is no appearance on behalf of the State of U.P.
in spite of notice.
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. 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.
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, 361 of the Code in that area.
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.
appeal is allowed.