CHANIversusTHE STATE OF UTTAR PRADESH

                              CHANI                                            A
                                v.
                   THE STATE OF UTTAR PRADESH

                              JULY 6, 2006

      [ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]                          B


      Code of Criminal Procedure, 1973; Ss. 360, 361/Probation of Offenders
Act, 1958; Section 4:

       Modification ofjudgment delivered by High Court in a criminal appeal- C
Section 4 of the Probation Act vis-a-vis Section 360 of the Code-Applicability
of-Held: Where provisions of the Probation Act applicable, Section 360 of
the Code should not be pressed into service, otherwise it would result in
highly undesirable consequences not intended by the legislature-Courts could
apply provisions of one of these beneficial Acts by assigning special reasons D
thereof-Enforcement of provisions of Probation Act in some area excludes
the applicability of the provisions of Ss. 360 and 361 of the Code-Though the
High Court is right in holding that no provision exists which af/ow modification
of the judgment in a criminal appeal but in the peculiar circumstances of the
case, the High Court is directed to consider the application for modification E
under either of th? Acts-Special Clauses Act-Section 8(1).

     The question which arose for determination by this Court in these
appeals was as to whether the provision of the Probation of Offenders Act
and Section 360 of the Code of Criminal Procedure could be enforced
simultaneously or in some particular circumstances.                            F
     Allowing the appeal, the Court

       HELD:l.1. Where the provisions of the Probation Act are applicable
the employment of se.ction 360 of the Code is not to be made. Jn cases of
such application, it would be an illegality resulting in highly undesirable    G
consequences, which the legislature 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. (309-H; 310-A-B]
                                   305
                                                                               H
    306                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A         1.2. Two statutes, viz. Code of Criminal Procedure, 1973 and the
    Probation Act, with such significant differences in its provisions could not
    be intended to co-exist at the same time in the same area. Such co-existence
    wQuld lead to anomalous results. Tile intention to retain the provisions of
    Section 360 of the Code and the provisions of the Probation Act as
B applicable at .the same time in a given area cannot be gathered from the
    provisions of Section 360 or any other provision of the Code. Therefore,
    by virtue of Section 8(1) of the General Clauses Act, where the provisions
    of the Act have been brought into force, the provisions of Section 360 of
    the Code are wholly inapplicable. Enforcement of Probation Act in some
    particular area excludes the applicability of the provisions of Section 360,
C   361 of the Code in that area. 1310-E-F-G]

          2. Though the High Court is justified in its view that there is no
    provision for modification of the judgment, but considering the peculiar
    circumstances the High Court is directed to consider the application under
D   the Probation Act or Section 360 of the code: as the case may be, so far as
    the appellant is concerned and pass the appropriate order. It is clarified
    that no opinion has been expressed on the merits. 1310-H; 311-A]

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 721
    of 2006.
E         From the Judgment and Order dated 28.5.2004 of the High Court of
    Judicature at Allahabad Bench at Lucknow in Crl.A. No. 276/81 and order
    dt. 31.1.06 in Crl. Misc. Appln. No. 469 of 2006.

          Saurabh Mishra and N. Annapoorani for the Appellant.
F         The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. Leave granted.

          Appellant calls in question legality of the order passed by a learned
G Single Judge of the Allahabad High Court, Lucknow Bench, Lucknow by
  which three appeals were disposed of rejecting the prayer made for
  modification of the judgment. Criminal Appeal No.492 of 1981 was filed by
  the State of U.P. against the present appellant who had filed Criminal Appeal
  No.276 of 1981. Criminal Appeal No.541 of 1983 was filed by the State of
  U.P. against four other persons who had faced trial before the learned II
H Additional Sessions Judge, Unnao who directed acquittal of Mohan Lal,
             CHAN! v. STATEOFUTfARPRADESH [PASAYAT,J.]                --:ioT.
Bhagwati, Girish and Vinod Kumar who were respondents in Criminal Appeal         A
No.541 of 1983 before the High Court. Appellant Chhanni was convicted for
the offences punishable under Sections 304 Part ll, 323/149 and 147 of the
Indian Penal Code, 1860 (in short the 'IPC'). He was sentenced to five years
RI on the first count and six months RI and fine of Rs.250/- on the second
count and one year RI on the third count. The High Court dismissed the           B
appeal filed by the State against the acquittal of Mohan Lal and three others
and the appeal for enhancement of sentences. So far as the appeal tiled by
present appellant is concerned, same was partly allowed. His conviction under
Section 304 Part II IPC and the sentence thereunder was set aside, but he was
convicted under Section 323 IPC and sentenced to undergo one year RI. His
conviction under Section 323 read with Section 149 IPC for causing simple        C
hurt to Raja Ram was altered to one under Section 323 IPC but the sentence
was maintained for such conviction. His conviction under Section 147 IPC
was set asiJe.

     An application was filed by the appellant before the High Court which D
was numbered as Criminal Miscellaneous Application No.469 of 2006 for
modification of the judgment and order dated 25.8.2004. Prayer was that he
should be directed to be released on probation under Section 4 of the Probation
of Offenders Act, 1958 (in short the 'Probation Act') or in the alternative
under Section 360 of the Code of Criminal Procedure, 1973 (in short the ·
'Code'). The High Court noted that there was no provision for permitting E
modification of an order and in fact the plea which was pressed into service
was not urged before the High Co11rt when the Criminal Appeal was heard.
Accordingly the application was rejected.

      Learned counsel for the appellant submitted that when the matter was       F
called before the High Court, the appellant's counsel was not present. But
considering the fact that the appeal was pending for more than a decade, the
High Court heard the learned counsel for the State and passed a judgment the
modification of which was sought for. Because of genuine difficulties the
appellant's counsel could not be present. In any event the High Court had set
aside the conviction in terms of Section 304 Part ll IPC.                        G
      There is no appearance on behalf of the State ofU.P. in spite of notice.

       Where the provisions of the Probation Act are applicable the employment
!Jf Section 360 of the Code is not to be made. In cases of such application,
                                                                                 H
    308                     SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A   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
B   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 (I 0) 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.
c
          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 Jess, to any person under 21 years of age or any
    woman convicted of an offence not punishable with sentence of death or
D   imprisonment for life. The scope of Section 4 of the Probation Act is much
    wider. I! applies to any person found guilty of having committed an offence
    not punfshable with death or imprisonment for life. Section 360 of the Code
    does noi provide for any role for Probation Officers in assisting the Courts
    in relation to supervision and other matters while Probation Act does make
    such a provision. While Section 12 of the Probation Act states that the person
E   found guilty of an offence and dealt with under Section 3 or 4 of the Probation
    Act shall not suffer disqualification, if any, attached to conviction of an
    offence under any Jaw, the Code 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
F   results. The intention to retain the provisions of Section 360 of the Code and
    the provisions of the Probation Act as applicable at the same time in a given
    area cannot be gathered from the provisions of Section 360 or any other
    provision of the Code. Therefore, by virtue of Section 8(1) of the General
    Clauses Act, where the provisions of the Act have been brought into force,
G   the provisions of Section 360 of the Code are wholly inapplicable;

          Enforcement of Prnb1tion Act in some particalar area excludes the
    applicability of the provisions of Sections 360, 361 of the Code in that area.

          The High Court is justified in its view that there is no provision for
H   modification of the judgment. But oonsidering the peculiar circumstances we
           CHANI v. STATEOFUTTARPRADESH[PASAYAT,J.]                   309
direct the High Court to consider the application under the Probation Act or A
Section 360 of the Code, as the case may be, so far as the appellant is
concerned and pass the appropriate order within three months from the receipt
of this order. We make it clear that we have not expressed any opinion as
regards the merits.

     The appeal is allowed.                                                 B
S.K.S.                                                   Appeal allowed.




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