Patna High Court - Orders
Nepali Giri & Ors. vs State Of Bihar & Anr on 19 August, 2014
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.238 of 2014
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1. Nepali Giri Son Of Sri Jagarnath Giri
2. Uma Giri Son Of Sri Jagarnath Giri
3. Lala Giri Son Of Sri Jagarnath Giri
4. Sri Jagarnath Giri Son Of Ram Charan Giri
All are R/O- Parto Karhari, P.S.- Akbarpur, District - Nawada
.... .... Petitioners
Versus
1. The State Of Bihar
2. Dinesh Mistry Son Of Binda Mistry R/O- Village - Parto Karhari, P.S.-
Akbarpur, District - Nawada
.... .... Opposite Parties
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Appearance :
For the Petitioners : Mr. Birendra Kumar, Adv
For the State : Mr. Uma Shankar Prasad Singh, APP
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL ORDER
6 19-08-2014The present criminal revision application is directed against the judgment dated 09.07.2009 passed by learned Additional District & Sessions Judge, F.T.C.-II, Nawada in Cr. Appeal No. 51 of 1999/16 of 2009, affirming the judgment of conviction and order of sentence dated 24.08.1999 passed in Sessions Trial No. 71 of 1995/ 56 of 1996, arising out of Akbarpur P.S. Case No. 115 of 1994, whereby the petitioner Nos. 1, 3 and 4 have been convicted for the charge under Sections 324/34 of the I.P.C and sentenced to undergo Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 2/7 RI for one year each. The petitioner Nos. 1 and 3 have been further convicted for the charge under Section 323 of the I.P.C. and sentenced to undergo RI for six months each, whereas petitioner No. 2 has been convicted for the charge under Section 324 of the I.P.C and sentenced to undergo RI for two years. All the sentences were directed to run concurrently.
Learned counsel for the petitioners confines his argument to the question of sentence only. Though no such prayer has been made in the pleading.
It is submitted by learned counsel for the petitioners, that petitioner nos. 1, 3 and 4 remained in custody since 20.01.2014 till the 1st week of May, 2014, when they were granted bail by this Court vide order dated 05.05.2014, while petitioner no. 2 is in custody since 20.01.2014. The petitioners have no criminal antecedent.
Considering the fact that the occurrence took place in the background of dispute for obstructing the water channel while informant was irrigating his land, the injury was found to be simple, the case was registered in 1994, the petitioner was held guilty for the charges under Sections 323, 324/34 of the I.P.C and learned Trial Court considered the case of release of convict petitioners under Section 360 of the Cr.P.C which is not applicable in the State of Bihar after coming into force of the Probation of Offenders Act w.e.f 15.06.1959, this Court is inclined to modify the sentence in the interest of justice. Accordingly the order of sentence dated 24.08.1999, Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 3/7 passed in Sessions Trial No. 71 of 1995/56 of 1996, arising out of Akbarpur P.S. Case No. 115 of 1994, passed by learned IInd Assistant Sessions Judge, Nawada, subsequently affirmed by judgment dated 09.07.2009, passed by learned Additional District and Sessions Judge, Fast Track Court, IInd, Nawada in Cr. Appeal No. 51 of 1999/16 of 2009 is hereby modified to the extent of the period undergone under custody as indicated above.
Accordingly the Revision application is disposed off. Let the lower Court records be transmitted forthwith.
The learned Trial Court is directed to release the petitioner No. 2 and discharge the petitioner Nos. 1, 3 and 4 from the liability of bail bond if they are not wanted in any other case.
Before parting with the order, this Court is tempted to say few sentences about the application of the provisions of Section 360 of the Code of Criminal Procedure (herein after referred as the Code), since the learned trial Court has considered, but refused to release of the petitioners under the provisions of Section 360 of the Code, which has no application in the State of Bihar. The trial courts in the State proceed beyond the stage of conviction in dealing with the question of sentence of the convicted accused by applying the provisions of Section 360 of the Code. The root cause of this appears to be the predilection of the Trial Courts for Section Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 4/7 360 of the Code. The application of Section 360 of the Code seems to be based on the notion that the provisions of Section 360 of the Code can be equally used in place of provisions of Probation of Offenders Act. The Trial Courts find it is simplier, easier, less cumbersome and time consuming, in applying the provisions of Section 360 of the Code than the provisions of the Probation of Offenders Act. Section 19 of the Probation of Offenders Act made the provisions of Section 562 of the Code of Criminal Procedure 1898 inapplicable. Section 19 of the Act reads as follow:-
"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 Probation of Offenders Act was enacted on 16.05.1958 but it did not come into force in all the States of the Country all at once. Sub-section 3 of Section 1 of the Act provides as follows:-
"It shall come into force in a State on such date as the state government may, by notification in the official gazette, appoint, and differentiates dates may, be appointed for different parts of the State"
In Bihar, Probation of Offenders Act, 1958 came into force w.e.f. 15.06.1958 vide notification published in Bihar Gazette of 06.06.1959 when Code of Criminal Procedure, 1898 was in force and in Section 562, it had the provisions very Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 5/7 similar to those contained in Section 360 of the present code. Sub-Section 10 of the Section 360 of the Code makes it clear that the provisions of Section 360 of the Code would have no effect on the provisions of the Act.
Sub section 10 of Section 360 of the Code reads as follows:-
"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."
The applicability of Section 19 of the Act which talks about Section 562 of the old Code, as the said Act is of 1958, is applicable to Section 360 of the new Code as has been held in the case of State through S.P., New Delhi versus Ratan Lal Arora reported in 2004(2) Crimes 455, Paragraph No. 9 of which reads as follows:-
"The parliament has enacted the Probation Act and Section 1(3) thereof stipulated that it shall come into force in a State on such date as the State Government may by notification in the official gazette appoint. By a notification in the Gazette of India 23/12/1961 this Act was made to apply and enforceable in the whole State of Delhi w.e.f. 29.12.1960. Section 19 of this Act leave (sic lays) down that, subject to the provisions of Section 18, Section 562 of the Criminal Procedure Code, 1898(hereinafter referred to as "Old Code") shall cease to Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 6/7 apply to the States or parts in which the Probation Act is brought into force. Old Code came to be repealed and replaced by the Code and Section 360 of the Code is the corresponding provision to Section 562 in the old Code. In Bishnu Deo Shaw versus State of West Bengal (AIR 1979 SC 964), this Court ruled that Section 360 of the Code re-enacts in substance Section 562 of the Old Code. That apart, Section 18 of the Probation Act stipulates that nothing in the said Act shall affect the provisions of Section 31 of the Reformatory Schools Act, 1897 or sub-section (2) of Section 5 of the Old Act. This Court in the decisions reported in Isher Das Vs. The State of Punjab (AIR 1972 SC 1295) and Som Nath Puri Vs. State of Rajasthan (AIR 1972 SC 1490) has held, specifically adverting to Section 18 that the said provision renders the Probation Act inapplicable to an offence under sub-section (2) of Section 5 of the Old Act, by expressly excluding it's operation. Section 13 of the re-enacted Act is the corresponding provision to Section 5(2) of the old Act".
This Court in the case of Upendra Nath Chaudhary versus High Court of Judicature at Patna and Anr, 2007(2) PLJR 554 considered the issue and concluded that provisions of Section 360 of the Code has no application in the State of Bihar and issue of release of convict on probation of good conduct must "therefore" be dealt with under the provisions of the Act. Para 18 reads as follow:-
" In light of the decisions of the Supreme Patna High Court CR. REV. No.238 of 2014 (6) dt.19-08-2014 7/7 Court, the inescapable conclusions are as follows:-
(1) The provisions of Section 360 of the Code have no application to this State and the issue of release of the convict on probation of good conduct must, therefore, be dealt with under the provisions of the Act.
(2) Under Section 4(2) of the Act, though the Court is not bound to follow the report, it is mandatory to call for and consider the report and it is a condition precedent for the release of the convict on probation of good conduct".
The Division Bench directed all the trial Courts to strictly follow the decision of the Apex Court in the trial proceedings and the order was circulated to all the Sessions Judges and the Magistrates in their respective divisions. The order was also directed to be transmitted to the Director, Judicial Training Academy for holding special classes of Judicial Officers for making them conversant with the provisions of the Act and the Rules framed thereunder but after several years of such direction still the provisions of Section 360 of the Code are being applied.
(Dinesh Kumar Singh, J) Shageer/-
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