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1982 Supreme(P&H) 253
PUNJAB & HARYANA HIGH COURT
M.M.Punchhi, J.
State Of Punjab
Versus
Harbans Lal
Criminal Appeal No. 304 of 1980,
Decided On : AUGUST 6, 1982
The Probation of Offenders Act, 1958 is applicable in specific areas as determined by the State Government, and in those areas, it replaces S.360 of the Code of Criminal Procedure, which deals with the release of offenders on probation.
Headnote:
PROBATION OF OFFENDERS ACT - APPLICABILITY - S.19 - EFFECT ON S.360 OF THE CODE OF CRIMINAL PROCEDURE - DISTINCTION BETWEEN THE TWO PROVISIONS - COURT'S DISCRETION IN RELEASING OFFENDERS ON PROBATION - PLEA-BARGAINING - LEGALITY.
Fact of the Case:
Three appeals were filed by the State of Punjab seeking enhancement of sentence in three separate cases where the accused were convicted and released on probation under S.360 of the Code of Criminal Procedure (New Code). The accused had admitted the allegations of the prosecution and the trial court, considering their first-time offenses and age, released them on probation. The State contended that the Probation of Offenders Act (Act) was applicable in the area where the trials took place and therefore, S.360 of the New Code could not have been applied.
Finding of the Court:
The court held that the Act was applicable in the area where the trials took place and therefore, S.360 of the New Code could not have been applied. The court further held that the trial court erred in releasing the accused on probation under S.360 of the New Code instead of the provisions of the Act. However, the court declined to impose substantive sentences on the accused considering the plea-bargaining that had taken place and the fact that the period of probation had already expired. The court directed that the bonds executed by the accused under S.360 of the New Code be deemed to be executed under S.4 of the Act.
Issues: 1. Whether the Probation of Offenders Act was applicable in the area where the trials took place? 2. Whether the trial court erred in releasing the accused on probation under S.360 of the New Code instead of the provisions of the Act?
Ratio Decidendi: 1. The court held that the Act was applicable in the area where the trials took place based on the following reasoning: - The Act could only come into force in a State if the State Government chose to apply it. - The State Government had applied the Act to the area where the trials took place with effect from a certain date. - Therefore, the provisions of the Act applied to trials in that area and not S.360 of the New Code. 2. The court held that the trial court erred in releasing the accused on probation under S.360 of the New Code instead of the provisions of the Act based on the following reasoning: - S.19 of the Act provides that S.360 of the New Code shall cease to apply to the State or parts thereof in which the Act is brought into force. - Therefore, S.360 of the New Code could not have been applied in the area where the trials took place since the Act was applicable in that area.
Final Decision: The appeals were allowed on the legal issue, but the outcome remained the same. The court directed that the bonds executed by the accused under S.360 of the New Code be deemed to be executed under S.4 of the Act.
1. These three appeal, being Criminal Appeals Nos. 304-SB, 333-SB and 334-SB of 1980, have been filed at the instance of the State of Punjab, seeking enhancement of sentence. These are against three separate judgments and orders of Shri Gurdev Singh, Sub-Divisional Judicial Magistrate. Ist Class, Moga. Since a common question of law has been raised therein, it could be convenient to dispose them of by a common judgment. Yet their facts have to be separately detailed, which are done hereafter.
2. In Criminal Appeal No. 304-SB of 1980, respondent Harbans Lal was being prosecuted for offence under S.337, Indian Penal Code, before the said Magistrate. The allegations against him were that on 24-11-1977 he had driven his bus No. PUF-5360 rashly and negligently so as to cause hurt to two persons namely, Sukhdev Singh and Atma Singh; to the latter by striking against his tractor. Some formal prosecution evidence had been led at the trial. On 16-1-1980, when further prosecution evidence was to be led, the respondent made an application admitting the allegations of the prosecution. The learned Sub-Divisional Judicial Magistrate was satisfied that the confessional statement of the accused was voluntary and without any pressure. He, therefore, convicted him for the offence under S.337, Indian Penal Code. On the question of sentence, he found that the accused-respondent was a first offender and was about 45 years of age. In view of the circumstances of the case and the confessional statement of the accused respondent, he took a lenient view and ordered the respondent to be released on probation under S.360 of Code of Criminal Procedure, 1973 (hereinafter called as the new Code) on a bond operative for a term. The respondent was also required to pay Rs. 400.00 as costs under S.5 (2) of the Probation of Offenders Act payable equally to both the injured persons.
3. In Criminal Appeal No. 333-SB of 1980, Surjit Singh had been charged to face trial under S.25 of the Arms Act before the same Sub-Divisional Judicial Magistrate. Initially he pleaded not guilty to the charge but on 15-1-1980, the date fixed for prosecution evidence, he made a statement admitting the allegations of the prosecution. The learned Magistrate convicted the accused-respondent on being satisfied that the confessional statement was voluntary. Finding that the respondent was less than 21 years of age and a first offender as also that he had confessed his guilt, he took a lenient view and ordered the accused-respondent to be released on probation under S.360 of the new Code on a bond as envisaged therein. At the same time he required the respondent to Pay Rs. 100.00 as costs under S.5 (b) of the Probation of Offenders Act.
4. In Criminal Appeal No. 334-SB of 1980, Surjit Singh was being tried under S.61 (1) (a) of the Punjab Excise Act, 1914, before the same Sub-Divisional Judicial Magistrate. On 15-1-1980, the accused-respondent made a statement under S.313 of the new Code admitting the allegations of the prosecution to be correct and prayed for mercy. He was thus convicted of the charge. The learned Magistrate taking into account that the accused was less than 21 years of age and was a first offender and had also made a confessional statement, he ordered his release on probation under S.360 of the new Code on a bond as envisaged therein. He ordered simultaneously payment of Rs. 400.00 as costs to the State under S.5 (b) of the Probation of offenders Act.
5. None of the respondents have put in appearance despite registered A. D. post-cards having been sent to them. On that score, the doubt which has crept in my mind with regard to the respondent being common in Criminal Appeals Nos. 333-SB and 334-SB of 1980, cannot be removed, In both cases, the learned trial Magistrate has treated the accused-respondents to be first offenders. The name and description of the respondents in both these appeals tally, but for the view I am going to take, I need not delve on this any
