ELIAMMA & ANR.versusST ATE OF KARNAT AKA

                     [2009] 3 S.C.R. 135


                      ELIAMMA & ANR.                              A
                               v.
                  STATE OF KARNATAKA
             (Criminal Appeal No. 265 of 2009)
                    FEBRUARY 11, 2009
                                                                  B
 [DR. ARIJIT PASAYAT, DR. MUKUNDAKAM SHARMA
               AND H.L. DATTU, JJ.]

     CODE OF CRIMINAL PROCEDURE, 1973:
                                                                  c
      s. 360 - Release of accused on probation - Convicted
u/ss 304 (part II) and 201134 /PC - Plea for release of accused
u/s 360 of the Code - HELD: Effect, relevance and
applicability of s. 360 not considered by courts below - Matter
remitted to trial court for consideration if benefit of s. 360 can 0
be extended to accused - Penal Code, 1860 - ss. 304 (part
II) and 201134.

    In the instant appeal arising out of the conviction u/
ss 304 (part II) and 201/34, the accused-appellants, while
challenging the conviction on merits, alternatively               E
pleaded that they were entitled to the benefit of s. 360 of
the Code of Criminal Procedure, 1973.

    Allowing the appeal in part, the Court

     HELD: The effect, relevance and applicability of             F
Section 360 Cr.P.C. have not been considered by the
courts below. Therefore, while upholding the conviction,
the matter is remitted to the trial court for the limited
purpose of deciding whether the benefit u/s 360 Cr.P.C.
can be extended to the accused-appellants. [Para 8 and            G
10] [140-G; 142-C]

    Chandreshwar Sharma v. State of Bihar 2000(9) SCC
245, relied on.
                              135                                 H
    136         SUPREME COURT REPORTS                [2009] 3 S.C.R.


A                          Case Law Reference:
          2000(9) sec 245              relied on            para 9

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 265 of 2009
B
        From the Judgment and Order dated 22.2.2006 of the High
    Court of Karnataka at Bangalore in Criminal Application No.
    1035 of 1999.

      Altaf Ahmed, S.N. Bhat and Deepa Mahajan for the
C Appellant.

         Sanjay R. Hegde, A. Rohen Singh, Amit Kr. Chawla and
    Vikrant Yadhav for the Respondent.

          The Judgment of the Court was delivered by
D
          DR. ARIJIT PASAYAT, J. 1. Leave granted.

       2. Challenge in this appeal is to the judgment of a learned
  Single Judge of the Karnataka High Court dismissing the
E appeal filed by the appellants. Both the appellants faced trial
  for alleged commission of offences punishable under Sections
  302, 201 read with Section 34 of the Indian Penal Code,
   1860(in short the 'IPC'). Learned Third Additional Sessions
  judge D.K. at Mangalore in Sessions Case No. 94of1995 held
F that the accused persons were to be convicted in terms of
  Section 304 Part II and Section 201 read with Section 34 IPC,
  so far as appellant No.1 is concerned and Section 201 read
  with Section 34 IPC so far.as appellant No.2 is concerned.

          3. Background facts giving rise to the trial are as follows:
G
        M.T. George (hereinafter referred to as the 'deceased')
    was addicted to alcohol and used to assault A 1. Al had
    become desperate with the bad conduct of the deceased. On
    6.3.1995 at 9.30 p.m. the deceased picked up quarrel,
H
        ELIAMMA & ANR. v. STATE OF KARNATAKA                  137
               (DR. ARIJIT PASAYAT, J.]

assaulted A1 and tried to pull her sari. A2 and A3 were present.     A
Because of the ghastly conduct of the deceased, A1 dealt a
blow with the iron rod on the head of the deceased which
resulted in his death. The accused persons stealthily buried the
body in the backyard of the house. A 1 in the early morning of
7.3.1995 informed school teacher (PW 1) of the village that the      8
deceased quarrelled with her and tried to pull her sari.
Therefore, she hit the deceased on his head and that he was
unwell. PW1 heard the fact from A 1 and went away. In the
evening PW1 met A2 and made enquiries about the health of
the deceased. A2 informed that his father was dead and that          c
they buried the body in the backyard. PW1 suspected foul play
and lodged FIR before the police. At the instance of A1 and
A2 the dead body buried in the backyard was exhumed on
8.3.1995 in the presence ofT.E.M.

     The prosecution relied on the extra judicial confession         D
made by A 1 before PW 1 and the circumstances of recovery
of the dead body at the instance of both the accused persons
proved their guilt. An· appeal was preferred before the High
Court which by the impugned judgment held that actual
conviction should have been in terms of Section 304 Part I IPC.      E
But in the absence of challenge by the State there was no scope
for interference. The evidence of PW 1 was found to be
credible. The appeal was dismissed.

      4. Though in support of the appeal learned counsel for the     F
appellant submitted that the High Court ought to have accepted
the stand that PW1's evidence is not without blemish, the same
is clearly without substance. The evidence of PW 1 has been
analysed by both the trial court and the High Court and have
been found to be cogent and credible. The alternative plea of        G
learned counsel for the appellant was that neither the trial court
nor the High Court considered the effect of provisions of Section
360 of the Code of Criminal Procedure, 1973 (in short the
'Cr.P.C.').

    5. Learned counsel for the respondent-State on the other         H
    138         SUPREME COURT REPORTS                [2009] 3 S.C.R.


A hand supported the judgment.

      6. It appears that the trial court convicted A1 under Section
  304 Part 11 IPC and Section 201 read with Section 34 IPC and
  sentenced him to undergo rigorous imprisonment for four years
  and one year respectively. So far as A2 is concerned he was
6
  convicted under Section 201 read with Section 34 and was
  sentenced to undergo imprisonment for one year. The other co-
  accused was convicted by the juvenile court.

          7. Section 360 Cr.P.C. reads as follows:
c
          "360. Order to release on probation of good conduct or
          after admonition :-( 1) When any person not under twenty-
          one years of age is convicted of an offence punishable with
          fine only or with imprisonment for a term of seven years
D         or less, or when any person under twenty-one years of age
          or any woman is convicted of an offence not punishable
          with death or imprisonment for life, and no previous
          conviction is proved against the offender, if it appears to
          the Court before which he is convicted, regard being had
          to the age, Character or antecedents of the offender, and
E
          to the circumstances in which the offence was committed,
          that it is expedient that the offender should be released on
          probation of good conduct, the Court may, instead of
          sentencing him at once to any punishment, direct that he
          be released on his entering into a bond, with or without
F         sureties, to appear and receive sentence when called
          upon during such period (not exceeding three years) as
          the Court may direct, and in the meantime to keep the
          peace and be of good behaviour:

G         Provided that, where any first offender is convicted by a
          Magistrate of the second class not specially empowered
          by the High Court, and the Magistrate is of opinion that the
          powers conferred by this section should be exercised, he
          shall record his opinion to that effect, and submit the
H         proceedings to a Magistrate of the first class, forwarding
               ELIAMMA & ANR. v. STATE OF KARNATAKA                    139
                      [DR. ARIJIT PASAYAT, J.]

             the accused to, or taking bail for his appearance before         A
             such Magistrate, who shall dispose of the case in the
             manner provided by sub-section (2).

             (2) Where proceedings are submitted to a Magistrate of
             the first class as provided by sub-section (1), such
                                                                              8
             Magistrate may thereupon pass such sentence or make
             such order as he might have passed or made if the case
             had originally been heard by him, and, if he thinks further
         .   inquiry or additional evidence on any point to be
             necessary, he may make such inquiry or take such
             evidence himself or direct such inquiry or evidence to be
                                                                              c
;
             made or taken.

             (3) In any case in which a person is convicted of theft, theft
             in a building, dishonest misappropriation, cheating or any
             offence under the Indian Penal Code (45 of 1860),                D
             punishable with not more than two years, imprisonment or
             any offence punishable with fine only and no previous
             conviction is proved against him, the Court before which
             he is so convicted may, if it thinks fit, having regard to the
             age, character, antecedents or physical or mental                E
             condition of the offender and to the trivial nature of the
             offence or any extenuating circumstances under which the
             offence was committed, instead of sentencing him to any
             punishment, release him after due admonition.

             (4) An order under this section may be made by any
                                                                              F
    "'       Appellate Court or by the High Court or Court of Session
             when exercising its powers of revision.

             (5) When an order has been made under this section in
             respect of any offender, the High Court or Court of Session      G
             may, on appeal when there is a right of appeal to such
             Court, or when exercising its powers of revision, set aside
             such order, and in lieu, thereof pass sentence on such
             offender according to law:
                                                                              H
    140         SUPREME COURT REPORTS                 (2009] 3 S.C.R.


A         Provided that the High Court or Court of Session shall not
          under this sub-section inflict a greater punishment than
          might have been inflicted by the Court by which the
          offender was convicted.

          (6) The provisions of Sections 121, 124 and :~73 shall, so
B
          far as may be, apply in the case of sureties offered in
          pursuance of the provisions of this section.

          (7) The Court before directing the release of an offender
          under sub-section (1 ), shall be satisfied that an offender
c         or his surety (if any) has a fixed place of abode or regular
          occupation in the place for which the Court acts or in which
          the offender is likely to live during the period named for
          the observance of the conditions.

D         (8) If the Court which convicted the offender, or a Court
          which could have dealt with the offender in respect of his
          original offence, is satisfied that the offender has failed to
          observe any of the conditions of his recognisance, it may
          issue a warrant for his apprehension.
E         (9) An offender, when apprehended on any such warrant
          shall be brought forthwith before the Court issuing warrant,
          and such Court may either remand him in custody until the
          case is heard or admit him to bail with a sufficient surety
          conditioned on his appearing for sentence and Court may,
F         after hearing the case, pass sentence.

          (10) Nothing in this section shall affect the provisions of
          the Probation of Offenders Act, 1958 (20 of 1951), the
          Children Act, 1960 (60 of 1960) or any other law for the
          time being in force for the treatment, training or
G
          rehabilitation of youthful offenders."

        8. It is rightly contended by the learned counsel for the
    appellant that the effect, relevance and applicability of Section
    360 Cr.P.C. have not been considered by the courts below.
H
      ELIAMMA & ANR. v. STATE OF KARNATAKA                  141
             [DR. ARIJIT PASAYAT, J.]

    9.ln Chandreshwar Sharma v. State of Bihar [2000(9)            A
sec 245] it was observed as follows:
    "The appellant herein was convicted under Sections 379
    and 411 IPC and was sentenced to rigorous imprisonment
    for one year as 3.5 kg of non-ferrous metal was recovered      8
    from his p~ssession. On an appeal being filed, the
    conviction under Section 379 was affirmed. The appellant
    carried the matter in revision, but the revision also stood
    dismissed. All along the case of the appellant was that the
    recovery from the tiffin carrier kept on the cycle would not   C
    tantamount to recovery from the possession of the
    appellant, and this contention has been negatived and
    rightly so. When the matter was listed before this Court, a
    limited notice was issued as to why the provisions of
    Section 360 of the Criminal Procedure Code should not
    be made applicable. Pursuant to the said notice, Mr.           D
    Singh, the learned Standing Counsel for the State of Bihar
    has entered appearance. From the perusal of the judgment
   of the learned Magistrate as well as the court of appeal,
   and that of the High Court, it transpires that none of the
   forums below had considered the question of applicability       E
   of Section 360 of the Code of Criminal Procedure.
   Section 361 and Section 360 of the Code on being read
   together would indicate that in any case where the court
   could have dealt with an accused under Section 360 of the
   Code, and yet does not want to grant the benefit of the said    F
   provision then it shall record in its judgment specific
   reasons for not having done so. This has apparently not
   been done, inasmuch as the Court overlooked the
   provisions of Sections 360 and 361 of the Code of
   Criminal Procedure. As such, the mandatory duty cast on         G
   the Magistrate has not been performed. Looking to the
   facts and circumstances of the present case, we see no
   reason not to apply the provisions of Section 360 of the
   Code of Criminal Procedure. We accordingly, while
   maintaining the conviction of the appellant, .direct that he    H
    142         SUPREME COURT REPORTS                [2009] 3 S.C.R.


A         will be dealt with under Section 360, and as such, we direct
          that the appellant be released on probation of good
          conduct instead of sentencing him, and he should enter into
          a bond with one surety to appear and receive the sentence
          when called upon during the period of one year for the
B         purpose in question. The bond for a year shall be executed
          before the learned Chief Judicial Magistrate, Ranchi, within
          3 weeks from today. The appeal is disposed of
          accordingly."

       10. Therefore, while upholding the conviction, we remit the
C matter to the trial court for limited purpose for deciding whether
  the benefit under Section 360 Cr.P.C. can be extended to the
  appellants.

       11. In view of the above the appeal is allowed to the extent
D indicated.

    RP.                                       Appeal partly allowed.




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