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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.