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State of Kerala Vs. Chellappan George and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ1780
AppellantState of Kerala
RespondentChellappan George and anr.
Cases ReferredBeepathumma v. Special Deputy Tahsildar
Excerpt:
.....conduct instead of sentencing them to punishment. this may indicate that the legislature has contemplated a situation where the provisions of section 360 of the code as well as the provisions of the act could co-exist. union of india air 1979 sc 798 :1979 tax lr 2064. the court held that if there is a mere reference to a provision of one statute in any other statute without incorporation, then, unless a different intention clearly appears, section 8(1) of the general clauses act would apply and the reference would be considered as a reference to the provision as would be in force from time to time in the former statute......is a provision parallel to section 562 of the code of 1898. sub-section (10) of section 360 of the code states 'nothing in this section shall affect the provisions of the probation of offenders act, 1958, or the children act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.' section 361 of the code states that where in any case the court could have dealt with an accused person under section 360 or under the provisions of the act (or some other statutes mentioned therein) but has not done so, it shall record in its judgment the special reasons for not having done so. this may indicate that the legislature has contemplated a situation where the provisions of section 360 of the code as well as the provisions of the act.....
Judgment:
ORDER

U.L. Bhat, J.

1. Respondents herein were tried by the Judicial Magistrate of the First Class, Neyyattinkara in C. C. 133 of 1981 on charge for offences under Sections 341 324 and 326 I. P. C read with Section 34 I.P.C. and convicted and each sentenced to undergo simple imprisonment for three months under Section 326 read with Section 34 I P.C. and simple imprisonment for 15 days under Section 341 I.P.C. No separate sentence has been imposed under Section 324 I.P.C. The two sentences were directed to run concurrently. In appeal the learned First Addl. Sessions Judge, Trivandrum, reduced the conviction, under Section 326 I.P.C. to one under Section 325 I.P.C. maintained the conviction on the other counts, set aside the sentences imposed and remanded the case for consideration of application of Section 360 of the Code of Criminal Procedure (for short the Code'). When the calendar was received by this Court, it was felt that the provisions of Section 360 of the Code may not be applicable in this State. The case was taken on calendar revision and notice given to the learned Public Prosecutor and the respondents. Respondents have not put in appearance. I have heard the learned Public Prosecutor.

2. P. Ws. 1 and 2 are sisters of the first respondent. The latter's wife is the second respondent. P. Ws. 1, 2 and the first respondent have a common property containing a house in portions of which P. W. 1 and the first respondent have been residing. P. W. 2 hag been residing elsewhere with her husband. It appears, P. W. 2 was claiming a share of the property from the first respondent. On the morning of 14-1-1981, P. W. 2 visited P. W. 1. P. W. 1 also was pressing the first respondent to give a share to P. W. 2 and for that reason, he bore a grudge against them. At about 8.30 a. m, the two respondents went to the hall-room in the occupation of P. W. 2. The second respondent wrongfully restrained P. W. 1. The first respondent beat P. W. 1 with an iron rod on the head and legs (causing fracture of the skull, left ear and left knee). When P. W. 2 interfered, he beat her with the iron rod on the head as well as over the knees. P. Ws. 1 and 2 were taken to the Medical College Hospital, Trivandrum and admitted there at 10.30 a. m. by Medical Officer in charge. P. W. 5 who issued wound certificates, Exts. P-l and P-2. P. W. 5 did not notice the injuries on the knees and legs since those parts of the body were covered by dress. It appears, P. Ws. 1 and 2 were unconscious and were not in a position to talk. Intimation was sent to the Medical College Police Station as seen in Ext. P4, it was received at 2 p.m. PW 9, Head Constable of Police proceeded to the hospital and finding that P. Ws. 1 and 2 were not in a position to give any information went back to the police station and on the basis of the intimation, registered a case as Crime No. 31/ TR/81 under Ext. P-6 F.I.R. for an offence under Section 324 I.P.C. against unknown person or persons. He prepared body notes, Exts, p-7 and P-8. The case was transferred to the Neyyattin-kara Police Station within whose jurisdiction the occurrence had taken place. P. W. 7, Head Constable of that station re-registered the case under Ext. P-5 F.I.R. On 16-1-81 he questioned PWs 1 and 2 and others and inspected the scene and prepared Ext. P-4, scene mahazar attested by P. W. 6 and submitted report to Court to include Sections 341, 326 and 34, I.P.C. and to incorporate the names of the two respondents as accused. The Sub-Inspector of Police, p. W. 8, completed the investigation and laid the charge.

3. Respondents denied their guilt. Prosecction examined 10 witnesses and marked Exts. P-l to P-8. The defence examined one witness, The stand taken by the respondents before the trial court was that P. W. 4, his sons, P. Ws. 1 and 2 and their husbands came to the house and attempted to throw the household articles of the respondents out of the house and were obstructed by,the second respondent. Hearing her cries, first respondent came there. He was also assaulted and injured. This version was attempted to be supported by D. W. 1. The trial court however accepted the prosecution case as true and rejected the defence case.

4. On going through the evidence in the case, I do not think the two courts below have committed any error in accepting the prosecution case as true. That P. Ws. 1 and 2 had sustained injuries is clear from the evidence of the doctor, P. W. 9 and the wound certificates, Exts. P-l and P-2. They have stated in what manner they sustained injuries. Their version is supported by their uncle, examined as P. W. 4. He had gone to the house to see P. W. 1. The other eye-witnesses examined are PWs 3 and 10. They turned hostile and stated that they had not seen the occurrence. D. W. 1 is obviously a person interested in the first respondent. His evidence does not inspire any confidence. The two courts below were -right in acting on the evidence of P. Ws. 1, 2 and 4 corroborated by the medical evidence and circumstances of the case. The conviction under Sections 325, 341 and 324 I.P.C. read with Section 34 I.P.C. cannot be interfered with.

5. The learned Magistrate did not consider the application of provisions of the Probation of Offenders Act, 1958 (for short 'the Act') or the provisions of Section 360 of the Code, obviously because he convicted the respondents under Section 326 I.P.C. read with Section 34 I.P.C. But since this conviction was reduced to one under Section 325 I.P.C by the learned Sessions Judge, the question of application of the provisions of the Act or Section 360 of the Code naturally arose before him. The learned Sessions Judge instead of considering the matter himself, chose to send back the case for fresh consideration.

6. It could be that the provisions of Section 360 of the Code co-exist with the provisions of the Act, in which case either provision could be invoked by a criminal court or it could be that the provisions of the Act must be deemed to be superseded by Section 360 of the Code or vice versa. It is necessary to know what exactly is the legal position.

7. The Code of Criminal Procedure, 1898 (for short 'the Code of 1898') contained a provision in Section 562 conferring power on courts to release certain convicted offenders on probation of good conduct instead of sentencing them to punishment. This section underwent some changes under Act 18 of 1923. Act 37 of 1923 inserted Sub-section (1A) in Section 562 conferring power on criminal courts, in appropriate cases mentioned therein, to release convicted offenders on admonition. The Code of 1898 came into force on 1-7-1898 and extended to the whole of India except part B States. This provision was amended by Act l of 1951 to say that the Code extends to the whole of India except the State of Jammu and Kashmir The Act came into force on 16-5-1958 and extended to the whole of India except the State of Jammu and Kashmir. Sub-section (3) of Section 1 of the Act provided that the Act shall come into force in a State on such date as the State Government may, by notification in the official gazette, appoint and different dates may be appointed for different parts of the State. There is no dispute that the Kerala State Government issued such a notification in 1958. The result is that in view of the notification in 1958 the provisions of the Act came into force in Kerala State.

8. The Act is intended to cover the whole area of reformation of offenders. The Act is intended to provide for the release of offenders on probation or on due admonition or for matters connected therewith. Naturally, the Act contained several provisions which did not find a place in the Code of 1898. The scope of the Act is certainly wider than the provisions of the Code of 1898. Section 562 of the Code of 1898 and the provisions of the Act could not co-exist. Thus Section 19 of the Act provided that 'Subject to the provisions of Section 18, Section 562 of the Code (that is the Code of 1898) shall cease to apply to the States or parts thereof in which this Act is brought into force.' It is unnecessary for the purpose of this case to consider the impact of the provisions of Section 18 of the Act. This discussion is confined to matters not covered by Section 18 of the Act and therefore that provision can be ignored for the present purpose. There could be no ambiguity in regard to the result of Section 19 of the Act and that is, if in any State or part of a State the Act has been brought into force, Section 562 of the Code of 1898 shall cease to apply. With the coming into force of the Act in the State of Kerala, Section 19 of the Act automatically came into operation and from that moment the provisions of the Act are applicable in Kerala State and not the provisions of Section 562 of the Code of 1898. This conclusion appears to be free from any controversy.

9. The Code of 1898 has been repealed by the Code of 1973. The Code came into force on 1-4-1974. It extends to the whole of India except the State of Jammu and Kashmir. Obviously, with effect from 1-4-1974 the provisions of the Code govern the criminal procedure and not the provisions of thp Code of 1898. Section 360 of the Code is a provision similar to Section 562 of the Code of 1898. Of course, there are some differences between the two provisions. But broadly speaking, it can be said that Section 360 of the Code is a provision parallel to Section 562 of the Code of 1898. Sub-section (10) of Section 360 of the Code states 'Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.' Section 361 of the Code states that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Act (or some other statutes mentioned therein) but has not done so, it shall record in its judgment the special reasons for not having done so. This may indicate that the Legislature has contemplated a situation where the provisions of Section 360 of the Code as well as the provisions of the Act could co-exist. They could certainly co-exist but not in the same area.

10. The question which arises for consideration is in what manner Section 19 of the Act is to be construed in the light of the repeal of the Code of 1898 by the Code. The answer to this question is found in Section 8(1) of the General Clauses Act, 1897. This provision states that where the General Clauses Act or any Central Act or regulation made after the commencement of the General Clauses Act, repeals and re-enacts with or without modification any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. The Code of 1898 has been repealed and has been re-enacted in the Code (of 1973) with certain modifications. The modifications are brought about in Section 562 of the Code of 1898 and also other provisions with which we are not concerned. Section 19 of the Act makes reference to Section 562 of the Code of 1898. When there is a repeal and re-enactment with or without modification of any provision, the reference in the 'Act to Section 562 of the Code of 1898 must be construed as a reference to Section 360 of the Code, unless a different intention appears. This seems to be the clear result of applying Section 8(1) of the General Clauses Act, to the present controversy.

11. I am not able to find anything in ;he provisions of the Act or the Code to indicate that an intention contrary to what is laid down in Section 8(1) of the General Clauses Act was ever in the contemplation of the Legislature. This could only be so since the co-existence of Section 360 of the Code and the provision of the Act in any given area in a State or any part of the country would lead to anomalous results. That is because of the difference in the provisions of the two statutes. It is unnecessary for me to refer in detail to these differences, suffice to mention the differences in two important matters. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death, or imprisonment for life. The scope of Section 4 of the Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for probation officers in assisting the courts in relation to supervision and other matters while the Act does make such a provision. While Section 12 of the Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Act shall not suffer disqualification, if any, attached to conviction of an offence under such law, the Code does not contain any parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore by virtue of Section 8(1) of the General Clauses Act, I have to hold that in the State of Kerala where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.

12. The Supreme Court had occasion to consider Section 8(1) of the General Clauses Act in Mahindra & Mahindra Ltd. v. Union of India AIR 1979 SC 798 : 1979 Tax LR 2064. The Court held that if there is a mere reference to a provision of one statute in any other statute without incorporation, then, unless a different intention clearly appears, Section 8(1) of the General Clauses Act would apply and the reference would be considered as a reference to the provision as would be in force from time to time in the former statute. This decision has been followed by this Court in Beepathumma v. Special Deputy Tahsildar 1982 Ker LT 130 : 1982 Tax LR NOC 165. These decisions fortify the view taken by me that on the repeal of the Code of 1898 and the re-enactment of the Code, reference in Section 19 of the Act to Section 562 of the Code of 1898 must be construed as reference to Section 360 of the Code. That being so, by the operation of Section 19 of the Act, in so far as the State of Kerala is concerned (since the provisions of the Act have been brought into force in the entire State in 1958) the provisions of Section 360 of the Code must be deemed to have been rendered inapplicable. Only the provisions of the Act can be applied in this State.

13. In this view the direction given by the learned Sessions Judge to the learned Magistrate to consider the applicability of the provisions of Section 360 of the Code cannot stand. The case started in 1981. I do not think it was appropriate on the part of the learned Sessions Judge to send back the case to the Magistrate for consideration of the question. In view of the facts of the case and its pendency for a long time, the learned Sessions Judge could himself have considered the question of the application of the provisions of the Probation of offenders Act. Undoubtedly, he has the power to call for the report of the Probation Officer if he deems it necessary.

In the result, the Judgment in Crl. Appeal No. 61 of 1982 is set aside in part to the extent it directs remand of the case and directs the Magistrate to consider the applicability of Section 360 of the Code. The Sessions Court will take back the case on file and consider whether the provisions of the Probation Act are to be invoked in the case and if so/ and if not, dispose of the Crl. Appeal in accordance with law. The criminal reference is thus answered.


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