important point
Employing section 360, Cr. P.C. in a case where Probation of Offenders Act is applicable will be an illegality.

judgment

Dr. Arijit Pasayat, J. –

1.Leave granted.

2.These two appeals have their matrix on an order passed by a learned Single Judge of the Punjab and Haryana High Court. By the impugned judgment a Criminal Revision filed by the informant and Criminal Appeal filed by the State of Haryana seeking enhancement of the sentence were disposed of.

Respondents faced trial for alleged commission of offences punishable under Sections 148 and 326 read with Section 149, Section 325 read with Section 149, Section 324 read with Section 149 and Section 323 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Chief Judicial Magistrate, Karnal convicted and sentenced five of the accused persons in the following manner:

SectionsImprisonmentFine

326/149 IPCFive years RIRs.5,000/- each.In default of payment of fine R.I. for one year.

325/149 IPCTwo years R.I.Rs.500/- each. Indefault of payment of fine R.I. for six months

148 I.P.C.Six months R.I.

323/149 IPCThree months R.I.

All the sentences were directed to run concurrently. It was directed that in case the fine amount imposed was realized, an amount of Rs.20,000/- was to be paid as compensation to the informant Pindi Dass who was injured and also a sum of Rs.5,000/- was payable to Ramesh Dass another injured victim.

The accused persons filed an appeal and learned Additional Sessions Judge, Karnal reduced the sentence under Section 326 read with section 149 IPC to three years but upheld all other sentences and the fine imposed by the trial Court. The accused persons filed criminal revision before the High Court for quashing the judgment and order of conviction of the trial Court. As noted above, the State of Haryana filed an appeal for enhancement of the sentence and informant also filed a revision application. The High Court dismissed the Criminal Appeal of the State and Criminal Revision of the injured for enhancement of sentence but modified the judgment of courts below and directed release of the accused persons on probation under Section 360 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) and enhanced the amount of fine to Rs.15,000/- each and directed 50% shall be payable to the injured Pindi Dass. It is to be noted that in the meantime Pindi Dass has died.

3.Learned counsel for the informant submitted that the direction given by the High Court cannot be maintained. Firstly, the Probation of Offenders Act, 1958 (in short the ‘Probation Act’) is applicable to the State of Haryana and therefore, Section 360 is not applicable. In any event, life imprisonment is provided for an offence punishable under Section 326 IPC. So, Section 360 of the Code also has no application.

4.Learned counsel for the accused respondents supported the judgment of the High Court. It further submitted that considering the fact that incident took place long back, this Court should not interfere by exercising jurisdiction under Article 136 of the Constitution, 1950 (in short the ‘Constitution’). The State of Haryana-appellant in Criminal Appeal arising out of SLP (Crl.) No.5321 of 2006 supported the stand of the informant who is appellant in Criminal appeal relatable to SLP (Crl.)No.4646/2006.

5.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