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1986 DIGILAW 367 (MAD)

B. S. M. Ganganna v. State of Karnataka

1986-09-02

PATIL

body1986
Order: 1. Respondents-2 to 5, who are arrayed as A-1, A-2, A-3 and A-5 respectively in C.C. No. 539 of 1984, on the file of the J.M.F.C, Molakalmuru, and another Sann Govindappa (A-4) in the said case, were charged with and tried for the offences punishable under Ss. 143, 147, 324, 355, 341 read with 149, IPC and were held to be not guilty of the offences of unlawful assembly, rioting as also the offences punishable under Ss.324, 355, 341 read with 149, IPC and accordingly acquitted of the said charge. They were however held to be guilty of the offence of simple hurt punishable under S. 323, IPC and were released on admonition as provided under S. 360 of the Cr.P.C. with a direction further to furnish surety in a sum of Rs.1,000 for keeping peace for a period of one year. The State having not filed any appeal against the said order, the complainant has filed this revision questioning the legality and correctness of the order as made by the trial Magistrate. 2. Mr. Hanumantharaya, learned counsel for the petitioner, submitted that the Probation of Offenders Act, 1958 being in force in the State of Karnataka, as provided under S. 19 of the said Act, the provisions contained in S. 562 of the old Cr.P.C. had not only ceased to apply in the State of Karnataka, but the provisions of S. 360 of the new Cr.P.C. were also not applicable and, therefore, the order passed by the Magistrate releasing the accused on admonition under S. 360 being illegal and without jurisdiction was liable to be set aside. 3. Mr. Kuranga, learned State Public Prosecutor appearing for the 1st respondent State, argued supporting Mr. Hanumantharaya and submitted that reference to S. 562 of the old Code in S. 19 of the Probation of Offenders Act has to be construed as S. 360 of the new Code in view of the provisions contained in S. 8 of the General Clauses Act and, therefore, the Probation of Offenders Act, 1958, being in force in the State of Karnataka, the provisions of S. 360 cannot be made use of. 4. It appears, there is sufficient force in these contentions. 4. It appears, there is sufficient force in these contentions. The Probation of Offenders Act, 1958 ( Central Act 20 of 1958) was adapted and brought into force in the State of Mysore, now Karnataka, from 1st October, 1960, without any amendments, and Rules also came to be framed. Therefore, having regard to the provisions contained in S. 19 of the Probation of Offenders Act, there is no doubt the provisions contained in S. 562 of the old Code having ceased to apply to the State, the provisions contained in S. 360 of the new Code are also not applicable. By force of S. 8 of the General Clauses Act, the old Code having been repealed by the new Cr.P.C. the reference to the provisions of S. 562 in S. 19 of the P.O. Act has to be construed as reference to the provisions as re-enacted, with or without amendments. The provisions of S. 360 of the new Code are clearly corresponding to the provisions contained in S. 562 of the old Code and reenacted with certain amendments making it more comprehensive by incorporating in it the provisions contained in Ss. 562, 563 and 564 of the old Code and therefore by virtue of the provisions inS.19 of the P.O. Act, the provisions contained in S. 360 of the new Code are not applicable in the State of Karnataka. This also appears to be the view taken by the Punjab High Court in the case of State of Punjab v. Harbans Lal of State of Punjab v. Harbans Lal 1983 Crl.L.J.13, wherein without reference to the provisions contained in S. 8 of the General Clauses Act, it has been held that where the provisions of the Probation of Offenders Act are applicable, the employment of S. 360 is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature wanted to obviate. The comparative elevation of the provisions of the Act is further noticed in sub-sec.(10) of S. 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation of Offenders Act, 1958. Those provisions have a paramountcy of their own in the respective areas where they are applicable. 5. The comparative elevation of the provisions of the Act is further noticed in sub-sec.(10) of S. 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation of Offenders Act, 1958. Those provisions have a paramountcy of their own in the respective areas where they are applicable. 5. In the case of State of Kerala v. Chellappan George State of Kerala v. Chellappan George 1983 Crl.L.J. 1780, the Kerala High Court has, after referring to the provisions contained in S. 8 of the General Clauses Act, held that there could be no ambiguity in regard to the result of S. 19 of the Act and that is, if in any State or part of a State the Act has been brought into force, S. 562 of the Code of 1898 shall cease to apply. With the coming into force of the Act in the State, S. 19 of the Act automatically came into operation and from that moment the provisions of the Act are applicable in the State and not the provisions of S. 562 of the Code of 1898, and therefore by virtue of S. 8(1) of the General Clauses Act, it must be held that in the State where the provisions of the Act have been brought into force, the provisions of S. 360 of the new Code are wholly inapplicable. 6. It is thus clear that the provisions of S. 360 are not applicable in the State or part of the State where the provisions of the P.O. Act are in force. The Probation of Offenders Act, 1958, being in force in Karnataka, the provisions contained in S. 360 of the new Code are not applicable. Therefore, the order passed by the trial Magistrate directing to release the accused-respondents on admonition in exercise of the powers conferred under S. 360, Cr.P.C. being illegal and without jurisdiction is liable to be set aside. 7. In the result and for the reasons stated above, the revision is allowed. The order under revision passed by the Magistrate is set aside and the matter is remitted back to the Magistrate with a direction to pass appropriate order either sentencing the accused or releasing them on admonition or probation of good conduct, as the case may be, as provided under the Probation of Offenders Act, 1958. Revision allowed.