Full Judgment Text
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CASE NO.:
Appeal (crl.) 797 of 2006
PETITIONER:
Daljit Singh and Others
RESPONDENT:
State of Punjab Through Secretary Home Affairs
DATE OF JUDGMENT: 27/07/2006
BENCH:
ARIJIT PASASYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 746 of 2006)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by
a learned Single Judge of the Punjab and Haryana High Court.
The 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’).
They 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).
They were originally six accused persons and two of them
namely Dilbagh Singh and Jaswant Singh were acquitted by
the trial court.
The 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.
In 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’).
Per 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
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provisions contained in the Probation Act and/or Section 360
of the Code.
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.
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 and
361 of the Code in that area.
The 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.
The appeal is allowed.