Dass Vs. Raghu Nath and Ors  Insc 189 (14 February 2008)
Arijit Pasayat & P. Sathasivam
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.
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.
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:
Imprisonment Fine 326/149 IPC Five years RI Rs.5,000/- each.
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.
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.
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.
Learned counsel for the informant submitted that the direction given by the
High Court cannot be maintained.
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.
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.
Where 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.
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.
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).
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
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.
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.
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.
The appeals are allowed with no order as to costs.