HP HC | S. 361 CrPC mandates court to record special reasons for not dealing with the accused under provisions of Probation of Offenders Act

Himachal Pradesh High Court

Himachal Pradesh High Court: Anoop Chitkara, J. upheld the decision of the first appellate court in the present case where the court on its own motion took cognizance of the complaint concerning the release of the respondent under Section 4 of the Probation of Offenders Act, 1958 after his conviction under Section 332 of the Penal Code, 1860.

The complainant, a police constable, was on traffic duty when the respondent had beaten him up for not permitting the respondent to take his vehicle on the wrong side of the road.  The complainant was beaten by respondent firstly at open place and thereafter gave beatings to him in the premises of Thana while persons accompanying him were requesting the complainant to effect a compromise with the convict. 

The trial court convicted the accused-respondent under Section 332 IPC. The respondent appealed against the decision in the Sessions Court which upheld the conviction but expressed disagreement on sentencing on the grounds of non-consideration of Section 361 CrPC and remanded the matter back to the trial court to call for the report of the Probation Officer, and consider the plea of the convict for the benefit of Section 4 of the Probation of the Offenders Act. The trial court after considering the report of the probation officer by an order granted probation that stands challenged before this Court. 

The Court relied upon the decision delivered by this court in the case of State of Himachal Pradesh v. Lat Singh, 1989 SCC OnLine HP 71 and observed that Section 360 of CrPC is not applicable in the State since Probation of Offenders Act is applicable here. Section 361 of CrPC, however, applies with full force requiring courts to record special reasons for not applying the provisions of the Act to a case where the court could have dealt with the accused under the said provisions. 

The court even answered the question with respect to the power of the Sessions Court to remand the case for considering the provisions of the Probation of Offenders Act. The answer to it lies in Section 386(b)(iii) CrPC which defines the powers of the Appellate Court and states that in an appeal from a conviction the Appellate Court may, with or without altering the findings, alter the nature or extent of sentence, but not so as to enhance the same.

In view of the facts of the case and the law discussed above, the Court upheld the decision of the first appellate court of remanding the matter to the trial court as well as the decision of the trial court granting a benefit to the accused under Section 4 of the Act. The High Court thereby dropped and closed the proceedings initiated in this case. [Court on its own motion v. Raghubir Singh, 2019 SCC OnLine HP 2233, decided on 23-10-2019]

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