IMPORTANT POINT
Where the provisions of the Probation Act are applicable the employment of Section 360 Cr.P.C. is not to be made.

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. 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.

3. 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.

4. 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).

5. 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 provisions contained in the Probation Act and/or Section 360 of the Code.

6. 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.

7. 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