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1984 Supreme(Cal) 28
High Court Of Calcutta
B. C. CHAKRABARTI, SANKARI PRASAD DAS GHOSH
MUSTAFA SHEIKH - Appellant
Versus
LALCHAND SHEIKH - Respondent
CRIMINAL REVISION 270 Of 1982
Decided On : 02/09/1984
Abdus Sattar, DIPAK MUKHERJI, MUKTI MAITRA, SUMIT MAITRA, TAIMUR HOSSAIN
Section 19 of the Probation of Offenders Act, 1958 bars the application of Section 360 Cr.P.C. in States where the Act is in force.
Headnote:
CRIMINAL LAW - Probation of Offenders Act, 1958 - Applicability - Section 19 - Bar to invocation of Section 360 Cr.P.C. - Scope and effect - Whether Section 360 Cr.P.C. can be invoked in a State where the Probation of Offenders Act, 1958 is in force - Held, no - Section 360 Cr.P.C. cannot be invoked in a State where the Probation of Offenders Act, 1958 is in force - Section 19 of the Act creates a bar for invoking Section 360 Cr.P.C. to a State or a part of a State wherein the Act has been extended by a State.
Fact of the Case:
The accused-petitioners were convicted under Section 324/34 IPC for assaulting the victim, Yakub Ali, causing grievous injuries that ultimately led to his death. The trial court, however, released the accused-petitioners on probation of good conduct under Section 360 Cr.P.C., considering their age and lack of criminal antecedents. The victim's brother, the de facto complainant, filed a revision petition challenging the conviction and sentence, arguing that the accused-petitioners should have been convicted under Section 326/34 IPC and sentenced to substantive punishment.
Finding of the Court:
The High Court held that the trial court was correct in convicting the accused-petitioners under Section 324/34 IPC and not under Section 326/34 IPC, as the injuries sustained by the victim did not meet the criteria for grievous hurt under Section 320 IPC. However, the High Court found that the trial court erred in invoking Section 360 Cr.P.C. to release the accused-petitioners on probation, as Section 19 of the Probation of Offenders Act, 1958 bars the application of Section 360 Cr.P.C. in States where the Act is in force.
Issues: 1. Whether the accused-petitioners should have been convicted under Section 326/34 IPC instead of Section 324/34 IPC? 2. Whether the trial court was justified in releasing the accused-petitioners on probation under Section 360 Cr.P.C.?
Ratio Decidendi: 1. The High Court held that the trial court was correct in convicting the accused-petitioners under Section 324/34 IPC and not under Section 326/34 IPC, as the injuries sustained by the victim did not meet the criteria for grievous hurt under Section 320 IPC. 2. The High Court held that the trial court erred in invoking Section 360 Cr.P.C. to release the accused-petitioners on probation, as Section 19 of the Probation of Offenders Act, 1958 bars the application of Section 360 Cr.P.C. in States where the Act is in force. The High Court reasoned that Section 360 Cr.P.C. and the Probation of Offenders Act, 1958 deal with similar subject matter, and that the provisions of the Act are more specific and comprehensive. Therefore, the High Court held that the Act prevails over Section 360 Cr.P.C. in States where the Act is in force.
Final Decision: The High Court discharged the Rule issued earlier, with the modification that the order of the trial court releasing the accused-petitioners on probation was set aside. Instead, the accused-petitioners were sentenced to rigorous imprisonment for three years on their conviction under Section 324/34 IPC.
( 1 ) THIS revisional application at the instance of the de facto complainant, Mustafa Sheikh, is directed against an order of conviction and sentence passed by Shri S. P. Sen Gupta learned Additional Sessions Judge, 3rd Court, Murshidabad, on 25-9-1981 under S. 324/34 IPC in Sessions Serial Case No. 142 of 1980 in which four persons viz. , Lalchand Sheikh, Sukur Sheikh, Fazlu Sheikh and Sademan Sheikh, stood charged under S. 304/34 I. P. C.
( 2 ) THE prosecution case, in a nutshell, is that on 21st Chaitra, 1385 B. S. , the aforesaid four accused persons (opposite parties Nos. 1 to 4 in this revisional application) assaulted one Yakub Ali, the brother of the de facto complainant, Mustafa Sheikh, while he was sleeping in his khalian (a khamar where crops are kept), by lathis and chhanis (big hensuas) and that subsequently, Yakub Ali succumbed to his injuries on 19-4-1979 after the occurrence on 4-4-1979. The learned Additional Sessions Judge found, on a consideration of the evidences of P. Ws. examined in the case, that the accused-opposite parties Nos. 1 to 4 conjointly attack Yakub Ali and assaulted him with chhani resulting in several injuries on his persons. One Dr. Baidyanath Biswas (P. W. 7) had held post-mortem examination on the dead body of Yakub Ali. He found that the death of Yakub Ali on 19-4-1979 was due to the multiple injuries found by him on the dead body of Yakub Ali which, according to him, were ante-mortern and homicidal in nature followed by secondary infection and toxaemia with pleural infection and peritonitis. The doctor (P. W. 7) found pus both in the stomach and pleural cavity. The learned Judge was of the view that this existence of pus in the Stomach and pleural cavity was due to incised wound which was 2" X " deep into the chest cavity. He was further of the view that one of the causes of death of Yakub Ali was secondary infection and toxaemia with pleural infection and peritonitis. As such, the learned Judge was of the opinion that the accused-opposite parties Nos. 1 to 4 should be found guilty under S. 324/34 I. P. C and not under S. 304/34 I. P. C. , as per the charge framed against the accused-opposite parties, or under S. 326, I. P. C. , as per the contention of the learned Assistant Public Prosecutor. The learned Judge was also of the view that having regard to the age, antecedent and financial position of the opposite parties Nos. 1 to 4, it would be better to release the opposite parties Nos. 1 to 4 under S. 360 Cr. P. C. on probation of good conduct. Accordingly, he directed release of the accused-opposite parties Nos. 1 to 4 on probation of good conduct under S. 360 (1) Cr. P. C. on execution of separate personal bonds by each of the opposite parties for Rs. 2,000/- together with one surety for Rs. 1,000/- to the satisfaction of the learned Chief Judicial Magistrate, Berhampore, so as to maintain good behaviour and to keep peace for a period of two years, after finding these accused-opposite parties guilty under S. 324/34 I. P. C. and convicting them thereunder. Being aggrieved by this order of conviction and sentence, the present revisional application has been filed by the de facto complainant, who lodged the F. I. R. (Ext. 1/2) leading to the present case.
( 3 ) THE contentions of the learned advocate for the petitioner are twofold. It is first contended that the learned Judge ought to have found the opposite parties Nos. 1 to 4 guilty under S. 326/34, I. P. C. instead of under S. 324/34, I. P. C. The second contention is that the learned Judge ought to have sentenced the opposite parties Nos. 1 to 4 under S. 326/34, I. P. C. instead of directing release of these opposite parties on probation of good conduct under S. 360, Cr. P. C. The contention of the learned Advocate for the opposite parties Nos. 1 to 4, on the other hand, is that the learned Judge was right in directing conviction of these opposite parties under S. 324/34, I. P. C. and that under the provision
