Section 360 To Be Co-jointly Read With PO Act [A Response To Justice Ramkumar's Article]

Section 360 To Be Co-jointly Read With PO Act [A Response To Justice Ramkumar

Interpretation is the art of finding out the true sense of enactment by giving the words of the enactment their natural and ordinary meaning. According to Gray, interpretation is the process by which a judge constructs from the words of a statute book, a meaning which he either believes to be that of the legislature or which, he proposes to attribute to it.[1] Accordingly, every legal text requires interpretation as the clarity in any legal text doesn't preclude the need for interpretation for such clarity is itself a result of interpretation. I am unable to agree with the Hon'ble Judge V. Ramkumar[2] that Section 360 of Code of Criminal Procedure has no application to admit aconvict to probation where the Probation of Offenders Act, 1958 is applicable.

Corresponding provisions: Section 564 (2) CrPC, 1898 and Section 360 (10) CrPC, 1973

The author has relied upon Section 562 of Code of Criminal Procedure, 1898 ('Old Code'). Section 360 of the Code of Criminal Procedure, 1973 ('New Code') is the new avatar of erstwhile Section 562. Sections 561, 562, 563 and 564 of the Old Code have been incorporated in Section 360 of the New Code. But the corresponding provision of sub Section (10) of Section 360 is contained in sub Section (2) of Section 564 of the Old Code. The Code of Criminal Procedure, 1973 is a central statute enacted after The Probation of Offenders Act, 1958 ('POA') came into force. Both the provisions are reproduced in juxtaposition:

"360.

(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.

564.

(2) Nothing in this section or in sections 562 and 563 shall affect the provisions of section 31 of the Reformatory Schools Act, 1897"

The basis of the article[3] is that Section 19 of the Probation of Offenders Act, 1958 mandates that the provisions of Section 18 and 562 of Old Code (corresponding to Section 16, 17 and Section 360 of the New Code respectively) shall cease to apply to the statutes to which the said Act is applicable. However, this view is incorrect.

Code of Criminal Procedure, 1973: Subsequent central enactment with specific mention of POA

Section 360 of the New Code cannot be said to be not applicable merely because of the Old Code is said to be inapplicable by virtue of Section 19 of the Probation of Offenders Act. Though Section 360 has to be read in lieu of Section 562 in terms of Section 8 of the General Clauses Act, however, the New Code is a subsequent central enactment by the Parliament as also subsequent to the Probation of Offenders Act. Section 360(10) of the New Code makes specific reference to the Probation of Offenders Act whereas the old the corresponding provision made no such reference. Therefore, the legislature was aware of the earlier Probation of Offenders Act when New Code was enacted. Consequently, the New Code will not cease to apply firstly by virtue of it being a later statute and there being a specific reference to the Probation of Offenders Act.

Section 19 of the Probation of Offenders Act: Interpretation of 'cease of apply'

Section 19 of the Probation of Offenders Act is to the effect that the provisions of the Old Code will cease to apply. First, the later Central Statute has made such provision not to make Section 562 applicable. The cease to apply will mean an enactment which was in force at the time of enactment of Probation of Offenders Act, but will not apply to the later central Statute. Once the Code of Criminal Procedure, 1973 provides that nothing in the Code will affect the Probation of Offenders Act, the offender is entitled to benefit of both the Central Statutes. It cannot be said that the later statute (Section 360 of the New Code) is either meaningless or surplusage or otiose. No word of statute can be ignored is the well-settled rule of interpretation.

Principle of Harmonies Construction: Section 19 POA v. Section 360 (10) CrPC, 1973

The principle of harmonious construction is a thumb rule of interpretation which establishes that every enactment should be read as a whole and interpreted as per its legislative intent. Interpretation has to be done in such a manner that conflict between two statutes or its provisions is avoided. Thus, a construction which makes one portion of the enactment a dead letter should be avoided since harmonization is not equivalent to destruction.

Section 360 (10) CrPC, 1973: Gives benefit and widens scope of Probation of Offenders Act

The applicability of the Probation of Offenders Act and Section 360 of the New Code is similar only in respect of an offender who is not under 21 years of age and convicted of an offence punishable with fine only or with imprisonment for a term 7 years or less. A similar benefit is applicable to a person who is under 21 years of age or to a woman even if convicted of an offence punishable with death or imprisonment for life. Whereas, the provisions of Probation of Offenders Act are wider in as much as under Section 4 of the Act, any person found guilty of committing an offence and punishable with death or imprisonment for life can be granted the benefit of probation and can be released on entering a bond for a period not exceeding 3 years.

The distinction for release under the Old Code is that an offender can be released without report from the Probationary Officer and such benefit is not available if an offender is sentenced for an offence where the maximum sentence imposable is more than seven years except in the case of an offender being less than 21 years or a woman. Second distinction is that release of an offender under the Probation of Offenders Act in terms of Section 12 of the Act, the disqualification on account of conviction is removed. However, both statutes do not provide for release on probation to an offender convicted of an offence where minimum sentence is provided by statute such as Prevention of Corruption Act.

Judicial Interpretation: Co-joint reading of the two provisions

In the light of said principle, the judgments referred to by Hon'ble Judge V. Ramkumar in his article are not applicable. Gurbachan Singh[4] is a case of conviction under the Prevention of Corruption Act. In Chhanni case[5], the appellant was convicted for an offence under Section 304 Part II. The accused convicted for an offence under Section 304 Part II is not entitled to the benefit of probation under Section 360 of the Code as for a person more than 21 years of age can be considered for probation if the offence is punishable for a period less than 7 years. In Daljit Singh case[6], the conviction was for an offence under Section 307 again which is punishable of a sentence more than 7 years. Therefore, the said judgments would have no application to release under Section 360 of the Code. Therefore, Section 360 of the new Code will have no application to such convicts. Therefore, the benefit of Section 360 of the new Code has rightly not been applied in Chhanni as also Daljit Singh.

In Mustafa Sheikh[7], a revision was filed by the de facto complainant where the accused was convicted for an offence under Section 324 IPC. In Pushkar Raj[8], the conviction was under Section 9 of the Opium Act. In my view both the judgments are not correct reading of Section 360 of the New Code based on the reasoning given above. Sub Section (10) of Section 360 of New Code is materially different from Sub Section (2) of Section 564 as reproduced above. Sub Section (10) subsequently states that the provisions of Probation of Offenders Act are not affected by the New Code.

Conclusion

Therefore, my view is that Probation of Offenders Act is more beneficial and covers larger numbers of convicts. The release of a convict under the Probation of Offenders Act also removes the disqualification attached on account of conviction whereas; Section 360 of the Code is applicable only in respect of offences where the conviction is not more than 7 years, apart from the persons less than 21 years or a woman. It does not have any similar beneficial provision of removing the disqualification as contained in the Probation of Offenders Act. Therefore, the judgment in Lakhan Singh's[9] case is the correct interpretation of law. To conclude with increased awareness about alternatives to imprisonment and benefits associated with reformative theory, our nation needs progressive interpretation of laws to facilitate reformation and rehabilitation of convicts. Mahatma Gandhi rightly said- 'Hate the sin and not the sinner.'

Vrinda Bhardwaj is Judicial Clerk cum Research Assistant in the Supreme Court

[Views expressed in this article are personal to the author and not in the capacity of a law clerk]


[1] Gray Nature and Sources of Law, 176(2nd Ed.).

[2] Refer to article titled - "Has Section 360 Cr.P.C. Any Application In A State Where The Probation Of Offenders Act, 1958 Has Been Brought Into Force?" dated 30 April 2019

[3] Ibid.

[4] Gurbachan Singh v. State of Punjab, 1980 Cri. L.J. 417 (Punj and Har)

[5] Chhanni V. State of Uttar Pradesh, (2006) 5 SCC 396

[6] Daljit Singh v. State of Punjab, (2006) 6 SCC 159

[7] Mustafa Sheikh v. Lalchand Sheikh and others, 1985 Cri. L.J. 1183 (Calcutta)

[8] Pushkar Raj v. State of Punjab, 1981 Cri. L.J. 1910 (Punj and Har)

[9] Lakhan Singh V. State of Madhya Pradesh (Criminal Appeal No.1306 of 2013) rendered on 04.04.19