Provisions Relating To Probation In CrPC (S.360) Not Excluded By Probation Of Offenders Act: SC [Read Order]

The bench comprising Justice Sanjay Kishan Kaul and Justice Hemant Gupta observed thus while allowing an appeal [Lakhanlal vs. State of MP] against a Madhya Pradesh High Court order that dismissed an application filed under Section 360 CrPC on the ground that it has no application as the matter as such is governed by Section 3 and 4 of the Probation of Offenders Act, 1958. In this case, the accused was convicted for the offences under Section 325 read with Section 34 of IPC, and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000.

Section 360 CrPC deals with release of a convict on probation of good conduct or after admonition. According to this provision, if any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less; and secondly, when any person under twenty- one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, is entitled to the benefit of probation. Both categories of offenders have to further satisfy that he is not a previous convict; satisfaction of the Court having regard to the age, character or antecedents of the offender and to the circumstances in which the offence was committed.

Similar provisions are there in Probation of Offenders Act dealing with the power of court to release certain offenders on probation of good conduct and after admonition. Taking note of these provisions, the bench said:

"Sub-Section (10) of Section 360 of the Code specifically contemplates that the provisions of the 1958 Act or Children Act 1960 or any other law for the time being in force for the treatment, training or rehabilitation of the youth of the offenders are not affected by the Code. Therefore, the provisions of the Code are not excluded by the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act, are applicable in respect of the offenders before the Court."

Section 360(10) Not Considered in Sanjay Duttt Judgment 

It also noted that a two Judge Supreme Court Bench judgment in Sanjay Dutt v. The State of Maharashtra held that the coexistence of such provisions [Section 360 of the Code and Sections 3 and 4 of 1958 Act] would lead to enormous results. But the bench observed:

"We find that the attention of the Court was not drawn to sub Section (10) of Section 360 which provides that Section 360 will not affect the provisions of 1958 Act or other similar laws for the time being in force for the treatment, training or rehabilitation of youthful offenders. Still further, Section 4 of the 1958 Act has a non obstante clause, giving overriding effect over any other provisions of law.. The conjoint reading of the provisions of both the statutes, we find that the provisions of Section 360 of the Code are in addition to the provisions of the 1958 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."

The court also observed that the distinction between the provisions in CrPC and the Act is that under the latter, the Court is required to seek report from the Probationary Officer before allowing an offender the benefit of probation apart from satisfying other conditions, whereas there is no such limitation while exercising the powers under the former.

Read Order