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CASE NO.: Appeal (crl.)  721 of 2006

PETITIONER: Chhanni

RESPONDENT: The State of Uttar Pradesh

DATE OF JUDGMENT: 06/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2700 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.  

       Appellant 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.  Criminal 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.  

       An 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

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was heard.  Accordingly the application was rejected.

       Learned 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.  

There is no appearance on behalf of the State of U.P. in  spite of notice.  

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,  361 of the Code in that area.  

The High Court is justified in its view that there is no

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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.  

       The appeal is allowed.