ASHOK KUMAR MOHARANA Vs. STATE OF ORISSA

JUDGEMENT

(1.) While revision application was heard by our learned brother Pasayat, J., a question arose as to whether the convicted accused in this case can be given benefit under section 360 of the Code of Criminal Procedure, 1973. It appears that it was contended on behalf of the State that as the Probation of Offenders Act (hereinafter referred to as the Act) has been applied in the State of Orissa, section 360 of the Code is no longer applicable in the State. In support of that contention, the decision of this Court in Brundaban Misra & another v. Kalu Misra, was cited. In that case, our learned brother K.C. Jagadeb Roy, J. after considering the effect of section 19 of the Act held that the provisions contained in section 360 of the Code are not applicable in the State of Orissa as the Act has now been brought into force throughout the State Pasayat, J. doubted correctness of that judgment and for that reason, this revision application is placed before us for deciding whether the said decision lays down the correct law. Pasayat, J. was of the view that subsection (10) of section 360 clearly indicates to the contrary. He was also of the view that the situations contemplated by sections 3 and 4 of the Act are not similar to those where provisions of section 360 are applied. In his order he has referred to the fact that in a large number of cases this Court has applied sections 360 and 361 of the Code. As an instance he has referred to the case of Saradhakar Sahu v. State ofOrissa, simultaneously observing that the point raised in this petition was not specifically considered either in that case or in the other cases.

(2.) Under the old Code of Criminal Procedure, power was conferred upon the court to release certain convicted offenders after admonition or on probation of good conduct instead of sentencing them at once to any punishment. The said provision was, however, not found sufficient and, therefore, in 1931 the Government of India prepared a draft of Probation of Offenders Bill and circulated it to the then Local Governments for their views. The Government of India could not proceed further with the Bill and, therefore, in 1934 it informed the Provincial Governments that there was no prospect of Central Legislation being undertaken at the time and there would be no objection to the provinces undertaking such legislation. A few provinces accordingly enacted their own probation laws. Several States did not have separate probation laws at all and even in States where there were probation laws they were not uniform and were not found to be adequate to meet the requirements. Considering these deficiencies and increasing emphasis on the reformation and rehabilitation of the offender as a useful and self reliant member of society without making him subject to the deleterious effects of jail lifeT and also the necessity to have a Central Law on the subject, the Parliament enacted the Probation of Offenders Act, 1958. Section 19 of the said Act provides that 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 Code referred to in that section is the Code of Criminal Procedure, 1898. The said Code has now been repealed by the Code of Criminal Procedure, 1973. Sub-sections (1), (3), (4), (5) and (6) of section 360 correspond to sub-section (1), (1-A), (2), (3) and (4) of section 562 of the old Code. Section 360 also contains provisions which correspond to old sections 562, 563 and 564 of the Code. Sub-section (10) of section 360 provides that Nothing in this section affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960, (16 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. In this context we have to consider whether section 360 of the Code which came to be enacted subsequently, i.e. after section 19 of the Act was enacted, can co-exist with section 19 or will not apply where the provisions of the Act are applied.

(3.) What is contended by the learned Advocate for the petitioner is that the new Code is a subsequent legislation covering the same field. The legislature while enacting the new Code was aware of the existence of the Act and section 19 there of. Even then it did not amend section 19. Section 360 is more exhaustive than section 562 of the old Code. Moreover, while enacting section 360, the legislature has also provided in subsection (10) that nothing in the section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (16 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. According to the learned Advocate, all these indicate that the legislature wanted both section 360 of the old Code and the relevant provisions of the Act to apply and, therefore, it will be for the court to decide benefit of which provision should be made available to the accused. In support of his submission, the learned Advocate has relied upon the decision of the Gauhati High Court in State of Assam v. Cheniram Saikia and another. In that case, it was contended on behalf of the. State of Assam that as the provisions of section 19 of the Probation of Offenders Act, 1958 were made applicable to the State of Assam, section 360 of the Criminal Procedure Code did not apply in the State. The Gauhati High Court after examining the provisions of the Act and section 360 of the new Code, observed fit would have been the intention of the legislature not to apply section 360 Cr. P.C. to the areas where the Act is in force it would have been expressly stated in the said section 360. As this has not been done by implication we can safely hold that legislature intended that both the provisions of the Act and section 360 Cr. P.C. may co-exist in the same area. That apart section 361 was newly added in the Cr. P.C., 1973 and this section, inter alia, provides that where in any case the court could have dealt with an accused person under section 360 or under provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so. Thus from reading section 361 Cr. P.C. it is absolutely clear that the intention of the legislature is that the provisions of section 360 Cr. P.C. and the Act 1l!ay coexist in the same area. It has further observed that: