I have read the response of Miss VrindaBhardwaj to Justice Ramkumar's Article on the applicability of Section 360Cr.P.C., published in the live law.
While I have no quarrel about the principles of interpretation highlighted by the author, I am sorry to say that the author has not correctly applied the relevant principles to the issue involved.
The question of harmonious construction will arise only for the purpose of harmonising to apparently conflicting provisions both of which are in force. Here, by the force of Section 19 of the Probation of Offenders Act, 1958 ("P.O. Act"), Section 360 Cr.P.C. will cease to apply in those States or parts thereof where the P.O. Act has been brought into force. So, once the P.O. Act has been brought into force in any State or part thereof, Section 360 Cr.P.C. will cease to apply in that State or part thereof. The author also has fairly conceded that by the operation of Section 8(1) of the General Clauses Act, 1897, the words "Section 562 of the Code" occurring in Section 19 of the P.O. Act have to be read as "Section 360 Cr.P.C.". When once Section 360 Cr.P.C. has ceased to apply in a State or part thereof, there can be no question of harmonising Section 360 Cr.P.C. and the provisions of the P.O. Act.
Justice Ramkumar in his Article has extracted a passage from Gulzar v. State of M.P. (2007) 1 SCC 619 (arising from the very same State of Madhya Pradesh) which reads as follows :-
"The intention to retain the provisions of S. 360 of the Code and the provisions of the P.O. Act as applicable at the same time in a given area cannot be gathered from the provisions of S.360 or any other provision of the Code. Therefore, by virtue of S.8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of S.360 of the Code are wholly inapplicable."
Justice Ramkumar has also quoted three other rulings of the Supreme Court where the very same observation occurs. Hence, if a two Judge Bench of the Supreme Court was of the view that both Section 360 Cr.P.C. as well the provisions of the P.O. Act will simultaneously operate in a particular area, then the matter ought to have been referred to a larger Bench since such a view would be contrary to the consistent view already taken by the Supreme Court in at least four earlier rulings.
The author appears to have been carried away by the wording of sub-section (10) of Section 360 Cr.P.C. which reads as follows:-
"(10) Nothing in this Section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders".
First of all, the issue which is germane for consideration is as to whether in a given case a particular accused person is either to be released on probation of good conduct or to be released after admonition. It has nothing to do with the treatment, training or rehabilitation of youthful offenders provided under the children Act Secondly, it is not as if with the enactment of the P.O. Act, Section 360 Cr.P.C. will automatically cease to apply in the entire country to which it extends by virtue of Section 1(2) of the P.O. Act. As per Section 1(3) of the P.O. Act, the said Act will come into force in a State or part thereof only on such date as the State Government may by notification in the Official Gazette specify. Hence, merely because sub-section (10) of Section 360 Cr.P.C. mentions about the P.O. Act, it does not mean that Section 360 Cr.P.C. will have continued application to an area where the State Government has, by notification extended the provisions of the P.O. Act the effect of which is to bring about a cessation of the applicability of Section 360 Cr.P.C. to such area. In this context it is pertinent to note that Children Act, 1960 referred to in sub-section (10) of Section 360 Cr.P.C. is also not in existence. But instead, it has been first replaced by the children Act of 1986 then by the Juvenile Justice (Care and Protection of Children) Act, 2000 and subsequently by the Juvenile Justice (Care and Protection of Children) Act, 2015. Nobody has any dispute that the P.O. Act has been brought into force in the State of Madhya Pradesh. Thereupon, Section 360 Cr.P.C. has ceased to operate in that State which explains the earlier rulings of the Supreme Court referred to above.
I am, therefore, of the considered view that the Article of Miss Vrinda Bhardwaj does not reflect the true legal position. On the contrary, the said Article seems to be the product of incomplete research.
R. Natarajan is the Former Director of Kerala Judicial Academy.
Views are personal only.