Vs. State of M.P  Insc 5 (4
Arijit Pasayat & S.H. Kapadia (Arising out of Slp (Crl.) No. 4231 of 2006) Dr.
Arijit Pasayat, J.
in this appeal is to the judgment rendered by a learned Single Judge of the Madhya
Pradesh High Court, Indore Bench. The appellant was found guilty of offence
punishable under Section 379 of the Indian Penal Code, 1860 (in short the
'IPC') and was sentenced to undergo rigorous imprisonment for three years for
stealing an attache containing about Rs.55,000/- from the possession of the
complainant Vinod Kumar Aggarwal while he was travelling in a bus and had got
down leaving this attachi behind.
trial court had found the accused guilty. The appeal filed before the first
appellate authority was dismissed and so was the revision petition by the
facts in a nutshell are as follows:
Vinod Kumar Aggrawal lodged report at the Police Post Bakaner on 25.12.1992 at
about 7.30 p.m. that he had come to Manawar, Bakaner, Singhana, Gandhwani for
recovery of due money from the merchants of the tea leaves supplied by him. In
the morning, he had received money from Sugam Kirana and Gani Mohammad etc. in Bakaner
and after recovery of money from Singhana Gandhwani had come to Manawar and
also recovered the money from the parties in Manawar and took seat in the Manawar
- Dhamnod Bakshi Bus at 6.30
p.m. in the evening.
He had kept one attache containing Rs.50-60 thousands of all denominations
inside by his side. On arrival at Bakaner, he went to meet Kailash Rathore for
five minutes. When he returned back he did not find his attache. Someone had
stolen about Rs.50-60 thousand alongwith the attache. Two receipt books in the
name of the shop Atul & Shyam, tea leaves sample, one diary and one blue colour
muffler were also lying in the said attache.
basis of this report of the complainant, an FIR bearing No. 8/60 was registered
with Police Post Bakaner and thereafter the Main Crime No. 717/92 was
registered with the Police Station Manawar and investigation was started. On
completion of investigation, charge sheet was submitted against the accused in
Courts below on consideration of the material on record convicted the accused.
Emphasis was laid on the recovery of the amount and the attache. Though a plea
was taken that father of the accused had given the money, he could not
establish his capacity to give the money to the accused.
sources indicated were found to be totally unacceptable.
counsel for the appellant submitted that there was no proper identification of
the so called attache which was stolen. In any event the evidence is not
sufficient to come to a conclusion about commission of offence punishable under
Section 379 IPC. Additionally it was submitted that the effect of Sections 3
and 4 of the Probation of Offenders Act, 1958 (in short the 'P.O. Act') in the
background of what is stated in Section 360 of the Code of Criminal Procedure,
1973 ( in short the 'Code') has not been kept in view.
counsel for the respondent on the other hand supported the judgment of the
find that the evidence of PW 9 is clear and cogent. He had identified the attache
which was recovered from the possession of the accused. Explanation was offered
about the source of money and the same was found to be wholly unacceptable. The
source of the sum of about Rs.55,000/-, the possession of which was established
was not explained.
not find any infirmity in the conclusion arrived at by the courts below in
analyzing the evidence to fasten the guilt on the accused.
residual question is applicability of Sections 3 and 4 of the P.O. Act and
Section 360 of the Code.
the provisions of the P.O. 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 P.O. 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 P.O. 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 P.O. 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 P.O. 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 P.O. 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 P.O.
does make such a provision. While Section 12 of the P.O.
states that the person found guilty of an offence and dealt with under Section
3 or 4 of the P.O. Act shall not suffer disqualification, if any, attached to
conviction of an offence under any law, the Code does not contain parallel
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 P.O. 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.
3 of the P.O. Act refers particularly to Section 379 IPC. Same reads as
of Court to release certain offenders after admonition- When any person is
found guilty of having committed an offence punishable under Section 379 or
Section 380 or section 381 or section 404 or section 420 of the Indian Penal
Code or any offence punishable with imprisonment for not more than two years,
or with fine, or with both, under the Indian Penal Code or any other law, and
no previous conviction is proved against him and the court by which the person
is found guilty is of opinion that, having regard to the circumstances of the
case including the nature of the offence and the character of the offender, it
is expedient so to do, then, notwithstanding anything contained in any other
law for the time being in force, the court may, instead of sentencing him to
any punishment or releasing him on probation of good conduct under section 4,
release him after due admonition.
For the purposes of this section, previous conviction against a person shall
include any previous order made against him under this section or section
4." In the aforesaid background, we think it appropriate to remit the
matter to the High Court to consider whether the benefits under the P.O. Act or
Section 360 of the Code can be extended to the appellant. We make it clear that
we have not expressed any opinion in that regard.
appeal is allowed to the aforesaid extent.