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CASE NO.: Appeal (crl.)  7 of 2007

PETITIONER: Gulzar

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 04/01/2007

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 4231 of 2006)  

Dr. ARIJIT PASAYAT, J.

Leave granted.   

Challenge 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.

The 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 impugned judgment.

Background facts in a nutshell are as follows:

Complainant 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.  On the 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

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Police Station Manawar and investigation was started. On  completion of investigation, charge sheet was submitted  against the accused in the Court.

The 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.  The sources indicated were found to be totally unacceptable.   Learned 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.

Learned counsel for the respondent on the other hand  supported the judgment of the courts below.

We 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.

We do not find any infirmity in the conclusion arrived at  by the courts below in analyzing the evidence to fasten the  guilt on the accused.   

The residual question is applicability of Sections 3 and 4  of the P.O. Act and Section 360 of the Code.

Where 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.   

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 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

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Courts in relation to supervision and other matters while P.O.  Act does make such a provision.  While Section 12 of the P.O.  Act 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 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 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.   

Enforcement of Probation Act in some particular area  excludes the applicability of the provisions of Sections 360,  361 of the Code in that area.  

Section 3 of the P.O. Act refers particularly to Section  379 IPC. Same reads as follows:  

"3.-Power 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.   Explanation- 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.

The appeal is allowed to the aforesaid extent.