Has Section 360 Cr.P.C. Any Application In A State Where The Probation Of Offenders Act, 1958 Has Been Brought Into Force?

Has Section 360 Cr.P.C. Any Application In A State Where The Probation Of Offenders Act, 1958 Has Been Brought Into Force?

According to a recent verdict of the Supreme Court of India in Lakhanlal @ Lakhan Singh v. State ofMadhya Pradesh (Criminal Appeal No. 1306 of 2013) rendered on 04-04-2019, the provisions of the Cr.P.C. are not excluded by the provisions of the Probation of Offenders Act, 1958 (the "P.O. Act" for short) and Section 360 Cr.P.C. is in addition to the provisions of the P.O. Act.

The appellant in the case before the Supreme Court was one of the eight accused persons who were convicted by the Trial Court for an offence punishable under Section 325 read with Section 34 IPC. In the appeal preferred before the High Court of Madhya Pradesh at Jabalpur, the appellant claimed the benefit of probation under Section 360 Cr.P.C. The High Court held that Section 360 Cr.P.C. will not be applicable since the matter was governed by Sections 3 and 4 of the P.O. Act and that Sections 3 and 4 of the P.O. Act will not apply to an offender who is aged 21 years or below for which provision has been made only in Section 360 Cr.P.C. Feeling aggrieved by the view taken by the High Court the appellant assailed before the Supreme Court, the aforesaid decision of the High Court. Disagreeing with the High Court, the Supreme Court held that both Section 360 Cr.P.C. and the P.O. Act are applicable in respect of offenders before the Court. The reasons given by the Apex Court in support of the above verdict are the following :-

  1. The finding of the High Court that Section 360 Cr.P.C. shall not have any application, has been recorded by misreading the bare provisions of the Cr.P.C. particularly sub-section (10) of Section 360 Cr.P.C. which specifically contemplates that the provisions of the P.O. Act or the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, are not affected by the Cr.P.C.
    (vide para 12)
  2. The provisions of the Cr.P.C. are not excluded by the P.O. Act. (vide para 12)
  3. Both Section 360 Cr.P.C. as well as the provisions of the P.O. Act are applicable in respect of the offenders before the Court.
    (vide para 12)
  4. The observations in para 81 of Sanjay Dutt v. State of Maharashtra (2013) 13 SCC 1 = AIR 2013 SC 2687 to the effect that Section 360 Cr.P.C. and Sections 3,4 and 12 of the P.O. Act with significant differences could not be intended to co-exist at the same time in the same area and that such co-existence would lead to anomalous results, were made without noticing sub-section (10) of Section 360 Cr.P.C.
    (vide paras 14 and 15)
  5. On a conjoint reading of Section 360 Cr.P.C. and the P.O. Act, it is found that the provisions of Section 360 Cr.P.C. are in addition to the provisions of the P.O. Act and other statutes dealing with youthful offenders. (vide para 16)

Accordingly, the Supreme Court applied Section 360 Cr.P.C. to the appellant before it.

I am afraid that I find myself unable to agree with the above reasoning. More than sub-section (10) of Section 360 Cr.P.C., the attention of the Court should have been drawn to Section 19 of the P.O. Act which reads as follows :-

"19. Section 562 of the Code not to apply in certain areas

Subject to the provisions of Section 18, Section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought into force"

The word "Code" in the P.O. Act is defined under Section 2(a) to mean the Code of Criminal Procedure, 1898 which is the old Code. But by virtue of Section 8(1) of the General Clauses Act, 1897, it has to be understood as the Code of Criminal Procedure, 1973 as per which it will be Section 360 of the present Code in the place of old Section 562. (vide Gurbachan Singh v. State of Punjab, - 1980 Cri.L.J. 417 (Punj and Har); Mustafa Sheikh v. Lalchand Sheikh and Others 1985 Cri.L.J 1183 (Calcutta); Pushkar Raj v. State of Punjab – 1981 Cri.L.J. 1910 (Punj and Har). Thus, the effect of Section 19 of the P.O. Act is that once the P.O. Act is brought into force in any State or part thereof, Section 360 Cr.P.C. will have no application in that State or part thereof and it will be the P.O. Act which will have application to that State or part thereof. This aspect of the matter had been noted and applied by the High Court of Kerala speaking through Justice U.L. Bhat in para 11 of State of Kerala v. Chellappan George 1983 KLT 811.

4. Even without reference to Section 19 of the P.O. Act, the Apex Court had already considered the question as to whether simultaneous application of Section 360 Cr.P.C. and the provisions of the P.O. Act could be had or not. In Gulzar v. State of M.P. (2007) 1 SCC 619 arising from the very same State of Madhya Pradesh, the Supreme Court observed in paragraph 10 as follows :-

"Where the provisions of the Probation of Offenders Act (for short the "P.O. Act") are applicable , the employment of Section 360 Cr.P.C. is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. Act and the Code of Criminal Procedure, wanted to obviate. The provisions of the P.O. Act have a paramountcy of their own in the respective areas where they are applicable."

After noticing the dissimilarities in Section 360 Cr.P.C. and the provisions of the P.O. Act the following pithy observation was made in paragraph 11 :-

"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 results. 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".

The above observation was reiterated by the Supreme Court in para 6 of Daljit Singh v. State of Punjab (2006) 6 SCC 159; in para 6 of Ramesh Das v. Raghu Nath (2008) 4 SCC 588 = AIR 2008 SC 1298 and in para 6 of Chhanni v. State of U.P. (2006) 5 SCC 396. Such being the position, the observation made in para 15 of the recent the verdict of the Supreme Court that the attention of the Bench of the Supreme Court which decided Sanjay Dutt was not drawn to sub-section (10) of Section 360 Cr.P.C., was uncalled for. The earlier two Judges Bench in Sanjay Dutt's case was, in my view, fully justified in observing that if Section 360 Cr.P.C. and the provisions of the P.O. Act were allowed to co-exist, it would lead to anomalous consequences.

5. I am, therefore, of the humble opinion that the aforementioned verdict in Lakhanlal does not lay down the law correctly and it requires reconsideration at the hands of a larger Bench of the Supreme Court.

Two statutes with such significant differences could not be intended to coexist at the same time in the same area. Such coexistence would lead to anomalous results. 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 V. Ramkumar is a Former Judge at High Court of Kerala.

Views are personal only.