THE STATE Vs. BIREN NAIK

JUDGEMENT

(1.) IN Sessions Trial No. 3/17 -K of 1976 disposed of on 16th August, 1976 the learned Assistant Sessions Judge of Keonjhar while convicting the accused -opposite party under Section 307. Indian Penal Code released him on probation under Section 4(1) of the Probation of Offenders Act instead of sentencing him to any punishment. Under the provisions of Section 4 of the Probation of Offenders Act a person found guilty of an offence punishable with death or imprisonment for life cannot avail of the benefit of probation. Section 307, Indian Penal Code provides "imprisonment for life" as one of the alternative punishments if hurt is caused to any person. According to the findings of the learned Assistant Sessions Judge the opposite party caused six gun -shot injuries on P.W. 2 Kanhu Juanga including one grievous injury on his chest.

(2.) THIS criminal revision has been started by the Court suo motu. The opposite party was noticed to show cause why he may not be released from the bond and sentenced to imprisonment. Despite service of notice the opposite party did not enter appearance. He, however, sent a letter addressed to the Additional Assistant Registrar of this Court stating that the grounds on which he was released on probation have been clearly mentioned by the trial Judge in his judgment and that he has got nothing to add. He has also requested this Court to engage an Advocate at the expense of the State Government to defend him in this proceeding. The Appointment of State Defence Counsel in Sessions Case Rules, 1974 framed by this Court in exercise of the powers under Sub -section (2) of Section 304 of the Code of Criminal Procedure, 1973 applies only to sessions trials. It has no application to appeal or revision against a conviction. Therefore no State Defence Counsel could be engaged for the opposite party.

(3.) THE words "death or imprisonment for life" occurring in Section 4(1) of the Probation of Offenders Act should be read disjunctively so as to mean offence punishable with death or punishable with imprisonment for life. In the case of King Emperor v. Nga San Htwa and Ors. : : : A.I.R.1927 Rangoon 205 (F.E.), a Fun Bench of the Rangoon High Court overruled its previous decision in Mohammed Eusoof and Anr. v. King Emperor, A.I.R. 1926 Ran 51, wherein the conjunctive interpretation had been accepted and held that the phrase "death or transportation for life" must be read disjunctively as if It ran "punishable with death or punishable with transportation for life." An offence for which death can be inflicted and an offence for which imprisonment for life can be inflicted are both offences "punishable with death or imprisonment for life" regardless of whether another punishment can or cannot be inflicted either in addition or in substitution. I am fortified in this view by a number of authorities, for instance, Public Prosecutor, Madras v. Pingali Mallikarjana Kota Papeswara Rao : A.I.R 1946 Mad. 173, Emperor v. Bakhsha : A.I.R. 1934 Lah 131, Emperor v. Bahawali : A.I.R. 1928 Lah 920, Emperor v. Mt. Janki and Anr., A.I.R 1932 Nag 130, State v. Sheo Shankar : : : A.I.R. 1956 All. 326 and Sarkar v. Jalamsingh : : : A.I.R. 1950 Raj. 28.