Sunday, 14 April 2019

Whether Provisions Relating To Probation U/S 360 of CRPC are Excluded By Probation Of Offenders Act?

The offence under Section 325 is punishable for a term which may extend
to seven years. The sentence imposed upon the appellant is of one year. The
finding of the High Court that Section 360 of the Code shall not have any
application is misreading of the bare provisions of the Code. Sub-Section (10) of
Section 360 of the Code specifically contemplates that the provisions of the
1958 Act or Children Act 1960 or any other law for the time being in force for
the treatment, training or rehabilitation of the youth of the offenders are not
affected by the Code. Therefore, the provisions of the Code are not excluded by
the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act,
are applicable in respect of the offenders before the Court. Therefore, we find
that the High Court misread the provisions of the 1958 Act to hold that such Act
is not applicable to the offender under the age of 21 years. The Court omitted
that Section 6 of the 1958 Act provides that an offender of less than 21 years if
found guilty of having committed an offence punishable with imprisonment (but

not with imprisonment for life), the Court by which the person is found guilty
shall not sentence him to imprisonment unless it is satisfied that, having regard
to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under
Section 3 or Section 4, and if the Court passes any sentence of imprisonment on
the offender it shall record its reasons for doing so. Thus, the High Court erred in
law in not granting benefit of probation to the appellant for an offence under
Section 325 read with Section 34 of the IPC.
13. The distinction is that under the 1958 Act, the Court is required to seek
report from the Probationary Officer before allowing an offender the benefit of
probation apart from satisfying other conditions, whereas there is no such
limitation while exercising the powers under Section 360 of the Code.
14. At this stage, it may be noticed that a two Judge Bench of this Court in
Sanjay Dutt v. The State of Maharashtra 2013 SCConline SC 252 considering the provisions of
Section 360 of the Code and Sections 3 and 4 of 1958 Act held that the coexistence
of such provisions would lead to enormous results. It was further held
that the intention to retain the provisions of Section 360 of the Code and 1958
Act at the same time in a given area cannot be gathered from the provisions of
Section 360 or any provision of the Code, when the Court held as under:-
“81) Section 360 of the Code of Criminal Procedure does not
provide for any role for probation officers in assisting the
courts in relation to supervision and other matters while the
Probation of Offenders Act does make such a provision.
While Section 12 of the Probation of Offenders Act states
that a person found guilty of an offence and dealt with under
Section 3 or 4 of the Probation of Offenders Act, shall not

suffer disqualification, if any, attached to the conviction of
an offence under any law. The Code of Criminal Procedure
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 Probation of
Offenders Act as applicable at the same time in a given area
cannot be gathered from the provisions of Section 360 or
any other provisions of the Code.”
15. We find that the attention of the Court was not drawn to sub Section (10)
of Section 360 which provides that Section 360 will not affect the provisions of
1958 Act or other similar laws for the time being in force for the treatment,
training or rehabilitation of youthful offenders. Still further, Section 4 of the
1958 Act has a non obstante clause, giving overriding effect over any other
provisions of law.
16. The conjoint reading of the provisions of both the statutes, we find that
the provisions of Section 360 of the Code are in addition to the provisions of the
1958 Act or the Children Act, 1960, or any other law for the time being in force
for the treatment, training or rehabilitation of youthful offenders.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1306 OF 2013

LAKHANLAL @ LAKHAN SINGH  Vs STATE OF MADHYA PRADESH

Dated:April 4, 2019.


The challenge in the present appeal is to an order passed by the learned
Single Judge of the High Court of Madhya Pradesh at Jabalpur on 05.01.2019
maintaining the conviction and sentence of the appellant for the offences under
Section 325 read with Section 34 of IPC. The appellant was sentenced to
undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/-. In
the event of non-payment of fine, the appellant was to undergo another period
of imprisonment for six months.
2. Initially, eight accused were made stand to trial for the offences under
Sections 147, 148, 149, 325 and 307 of IPC in respect of the incident, which
occurred on 30.10.1989 at 20.30 hours at Village Sirodi Police Station Doraha,
District Sehore.
3. The prosecution’s case is that on 30.10.1989, when Ramesh and Munshi

Lal were returning to their home after seeing Jaware, accused-appellant hit
complainant Munshi Lal with lathi which struck on the elbow of his left hand
whereas the second blow was on the left side of his head. After completion of
investigation, the accused-appellant along with other accused was made to
stand trial before the learned Magistrate.
4. The appellant was convicted for the offences under Section 325 read with
Section 34 IPC. The two other accused convicted by the learned trial court also
went in appeal to the High Court and their conviction and sentence were also
maintained. However, the appellant alone is in appeal before this Court.
5. The High Court held that Section 360 of the Code of Criminal Procedure1
will not be applicable as the matter falls within Sections 3 and 4 of Probation of
Offenders Act, 19582. The relevant extracts from the judgment read as under: -
“The submission of the appellant is considered. In
this reference, it is profitable to refer to Sub section 10
of section 360 of the Cr.P.C. which prescribes that
nothing in this section shall affect the provisions of the
Probation of Offenders Act, 1958 (20 of 1958), or the
Children Act, 1960 (60 of 1960), or any other law for
the time being in force for the treatment, training or
rehabilitation of youthful offenders. Therefore, matter
as such is governed by Section 3 and 4 of the Probation
of Offenders Act, 1958 and Section 360 of the Cr.P.C.
shall have no application in the present case.
A careful reading of section 3 and 4 of Probation of
Offenders Act, 1958 does not stipulate that the benefit
of the release on probation for good conduct after
admonition is to be given to such offenders who are 21
years or less than 21 years of age which is a specific
provision made in Section 360 of the Cr.P.C.”
1 Code
2 1958 Act
3
6. We find that the order of the High Court is based upon erroneous reading
of the provisions of law and that the appellant is entitled to benefit of probation
in terms of Section 360 of the Code as well as under the 1958 Act. The relevant
provisions of Section 360 of the Code read as under:
“360. Order to release on probation of good conduct or
after admonition.
(1) When any person not under twenty- one years of
age is convicted of an offence punishable with fine only
or with imprisonment for a term of seven years or less,
or when any person under twenty- one years of age or
any woman is- convicted of an offence not punishable
with death or imprisonment for life, and no previous
conviction is proved against the offender, if it appears
to the Court before which he is convicted, regard being
had to the age, character or antecedents of the
offender, and to the circumstances in which the offence
was committed, that it is expedient that the offender
should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering
into a bond with or without sureties, to appear and
receive sentence when called upon during such period
(not exceeding three years) as the Court may direct
and in the meantime to keep the peace and be of good
behaviour: Provided that where any first offender is
convicted by a Magistrate of the second class not
specially empowered by the High Court, and the
Magistrate is of opinion that the powers conferred by
this section should be exercised, he shall record his
opinion to that effect, and submit the proceedings to a
Magistrate of the first class, forwarding the accused to,
or taking bail for his appearance before, such
Magistrate, who shall dispose of the case in the manner
provided by sub- section (2).
*** *** ***
(10) Nothing in this section shall affect the provisions of
the Probation of Offenders Act, 1958 (20 of 1958), or
the Children Act, 1960 (60 of 1960), or any other law
for the time being in force for the treatment, training or
rehabilitation of youthful offenders.”

7. Section 360(1) of the Code contemplates as to which offenders are
entitled to the benefit of probation and on what conditions. It contemplates that
firstly, if any person not under twenty- one years of age is convicted of an
offence punishable with fine only or with imprisonment for a term of seven
years or less; and secondly, when any person under twenty- one years of age or
any woman is convicted of an offence not punishable with death or
imprisonment for life, is entitled to the benefit of probation. Both categories of
offenders have to further satisfy that he is not a previous convict; satisfaction of
the Court having regard to the age, character or antecedents of the offender
and to the circumstances in which the offence was committed. The court being
satisfied can order, instead of sentencing him at once to any punishment, that
he be released on his entering into a bond with or without sureties, to appear
and receive sentence when called upon during such period (not exceeding three
years) and in the meantime to keep the peace and be of good behaviour.
8. Thus, if the offender is less than 21 years of age or a woman not convicted of
an offence not punishable with death or imprisonment for life; such offender can
be granted benefit of probation on satisfaction of the court on the basis of
parameters contained in Section 360 of the Code. However, in respect of an
offender more than 21 years of age, the benefit of release is available only if the
offence is punishable for less than seven years imprisonment or fine. The object
of Section 360 of the Code is to prevent young persons from being committed to
jail, who have for the first-time committed crimes through ignorance, or
inadvertence or the bad influence of others and who, but for such lapses, might
be expected to be good citizens.

9. The Court is empowered to release an offender who is convicted of an
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 in terms of Section 3
of the 1958 Act, subject to the condition that no previous conviction is proved
against him. In terms of Section 4 of the 1958 Act, an offender cannot be
released on probation if such offender has a fixed place of abode or regular
occupation in the place over which the court exercises jurisdiction or in which
the offender is likely to live during the period for which he enters into the bond,
after taking into consideration the report, if any, of the probation officer before
making any order. Such exercise is required to be performed if an offender is not
convicted of an offence punishable with death or imprisonment for life, then,
notwithstanding anything contained in any other law for the time being in force,
the court may release a convict instead of sentencing him at once to any
punishment on probation subject to the conditions specified in Section 4 of
1958 Act. Sections 3 and 4 of the 1958 Act read as under:-
“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, (45 of
1860) 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.
4. Power of court to release certain offenders on
probation of good conduct.—(1) When any person is
found guilty of having committed an offence not
punishable with death or imprisonment for life 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 to release him on probation
of good conduct, then, notwithstanding anything
contained in any other law for the time being in force,
the court may, instead of sentencing him at once to
any punishment direct that he be released on his
entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such
period, not exceeding three years, as the court may
direct, and in the meantime to keep the peace and be
of good behaviour:
Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender or
his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live
during the period for which he enters into the bond.
(2) Before making any order under sub-section (1),
the court shall take into consideration the report, if any,
of the probation officer concerned in relation to the
case.”
10. A three Judge Bench of this Court in Rattan Lal v. State of Punjab3
while examining the provisions of 1958 Act held that in case the offenders are
below 21 years, an injunction is issued to the Court not to sentence them to
imprisonment unless it is satisfied that having regard to circumstances of the
case, it is not desirable to deal with them under Sections 3 and 4 of 1958 Act
but in respect of offenders who were above age of 21 years, the Court has
3 AIR 1965 SC 444

absolute discretion to release such offenders either after admonition or on
probation of good conduct. The Court held as under:-
“The Act is a milestone in the progress of the modern liberal
trend of reform in the field of penology. It is the result of the
recognition of the doctrine that the object of criminal law is
more to reform the individual offender than to punish him.
The Act distinguishes offenders below 21 years of age and
those above that age and offenders who are guilty of
committing an offence punishable with death or
imprisonment for life and those who are guilty of a lesser
offence. While in the case of offenders who are above the
age of 21 years, absolute discretion is given to the court to
release them after admonition or on probation of good
conduct, in the case of offenders below the age of 21 years
an injunction is issued to the court not to sentence them to
imprisonment unless it is satisfied that having regard to the
circumstances of the case, including the nature of the
offence and the character of the offenders, it is not
desirable to deal with them under section 3 and 4 of the
Act.”
11. This Court in Jugal Kishore Prasad v. State of Bihar4 explained the
rationale of the provision as to prevent the conversion of youthful offenders into
obdurate criminals as a result of their association with hardened criminals of
mature age in case the youthful offenders are sentenced to undergo
imprisonment in jail. The Court held as under:-
“6. The Probation of Offenders Act was enacted in 1958
with a view to provide for the release of offenders of
certain categories on probation or after due admonition
and for matters connected therewith. The object of the
Act is to prevent the conversion of youthful offenders
into obdurate criminals as a result of their association
with hardened criminals of mature age in case the
youthful offenders are sentenced to undergo
imprisonment in jail. The above object is in consonance
with the present trend in the field of penology,
4 (1972) 2 SCC 633

according to which effort should be made to bring
about correction and reformation of the individual
offenders and not to resort to retributive justice.
Modern criminal jurisprudence recognises that no one is
a born criminal and that a good many crimes are the
product of socio- economic milieu. Although not much
can be done for hardened criminals, considerable stress
has been laid on bringing about reform of young
offenders not guilty of very serious offences and of
preventing their association with hardened criminals.
The Act gives statutory recognition to the above
objective. It is, therefore, provided that youthful
offenders should not be sent to jail, except in certain
circumstances. Before, however, the benefit of the Act
can be invoked, it has to be shown that the convicted
person even though less than 21 years of age, is not
guilty of an offence punishable with imprisonment for
life. This is clear from the language of Section 6 of the
Act.”
12. The offence under Section 325 is punishable for a term which may extend
to seven years. The sentence imposed upon the appellant is of one year. The
finding of the High Court that Section 360 of the Code shall not have any
application is misreading of the bare provisions of the Code. Sub-Section (10) of
Section 360 of the Code specifically contemplates that the provisions of the
1958 Act or Children Act 1960 or any other law for the time being in force for
the treatment, training or rehabilitation of the youth of the offenders are not
affected by the Code. Therefore, the provisions of the Code are not excluded by
the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act,
are applicable in respect of the offenders before the Court. Therefore, we find
that the High Court misread the provisions of the 1958 Act to hold that such Act
is not applicable to the offender under the age of 21 years. The Court omitted
that Section 6 of the 1958 Act provides that an offender of less than 21 years if
found guilty of having committed an offence punishable with imprisonment (but

not with imprisonment for life), the Court by which the person is found guilty
shall not sentence him to imprisonment unless it is satisfied that, having regard
to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under
Section 3 or Section 4, and if the Court passes any sentence of imprisonment on
the offender it shall record its reasons for doing so. Thus, the High Court erred in
law in not granting benefit of probation to the appellant for an offence under
Section 325 read with Section 34 of the IPC.
13. The distinction is that under the 1958 Act, the Court is required to seek
report from the Probationary Officer before allowing an offender the benefit of
probation apart from satisfying other conditions, whereas there is no such
limitation while exercising the powers under Section 360 of the Code.
14. At this stage, it may be noticed that a two Judge Bench of this Court in
Sanjay Dutt v. The State of Maharashtra5 considering the provisions of
Section 360 of the Code and Sections 3 and 4 of 1958 Act held that the coexistence
of such provisions would lead to enormous results. It was further held
that the intention to retain the provisions of Section 360 of the Code and 1958
Act at the same time in a given area cannot be gathered from the provisions of
Section 360 or any provision of the Code, when the Court held as under:-
“81) Section 360 of the Code of Criminal Procedure does not
provide for any role for probation officers in assisting the
courts in relation to supervision and other matters while the
Probation of Offenders Act does make such a provision.
While Section 12 of the Probation of Offenders Act states
that a person found guilty of an offence and dealt with under
Section 3 or 4 of the Probation of Offenders Act, shall not
5 2013 SCConline SC 252

suffer disqualification, if any, attached to the conviction of
an offence under any law. The Code of Criminal Procedure
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 Probation of
Offenders Act as applicable at the same time in a given area
cannot be gathered from the provisions of Section 360 or
any other provisions of the Code.”
15. We find that the attention of the Court was not drawn to sub Section (10)
of Section 360 which provides that Section 360 will not affect the provisions of
1958 Act or other similar laws for the time being in force for the treatment,
training or rehabilitation of youthful offenders. Still further, Section 4 of the
1958 Act has a non obstante clause, giving overriding effect over any other
provisions of law.
16. The conjoint reading of the provisions of both the statutes, we find that
the provisions of Section 360 of the Code are in addition to the provisions of the
1958 Act or the Children Act, 1960, or any other law for the time being in force
for the treatment, training or rehabilitation of youthful offenders.
17. Coming to the facts of the present case, the incident has occurred more
than thirty years back in the year 1989. The appellant has suffered the
proceedings for more than 30 years. There is no material on record that the
appellant was involved in any other offence during the last more than thirty
years. Therefore, we find that the High Court erred in law in not granting benefit
of probation to the appellant convicting for an offence under Section 325 and
Section 34 of IPC. Therefore, in terms of Section 360, it is ordered that the

appellant be released on probation of good conduct for a period of one year on
furnishing personal bond before the learned Trial Magistrate within a period of
two months from the date of receipt of the certified copy of the order by the
appellant.
18. The appeal is disposed of in above terms.
……..….…………………………………J.
(SANJAY KISHAN KAUL)
….….……….…………………………..J.
(HEMANT GUPTA)
New Delhi
April 4, 2019.

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