JUDGMENT
Aftab Alam, J.
1. This writ petition, filed in public interest, brings to the notice of the Court certain practice being followed by the trial Courts in this State (Sessions Judges, Additional Sessions Judges and Judicial Magistrates) that is patently illegal, besides being highly undesirable from a social point of view. It is stated that the Trial Courts have all but stopped using the provisions of the Probation of Offenders Act, 1958; that even when the lower. Courts proceed under the provisions of the Probation of Offenders Act, in cases few and far between, they do so without calling for a report from the Probation Officer and thus act in violation of Section 4(2) of the Act, further that the Trial Courts mostly act under Section 360 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) taking it as a substitute and an alternate to the provisions of the Probation of Offenders Act (hereinafter referred to as ‘the Act’).
2. The petitioner is a retired Principal Probation Officer. He is about 75 years old and he retired from service about 15 years ago. He states that the proceedings before the trial Courts appear to have undergone a vast change since he was in service. While he was in service, in one year on an average 1000-1200 pre-sentence reports, were called for by the Courts as provided in Sub-section (2) of Section 4 of the Act. Now, the total number of reports called for from Probation Officers all over the State does not add upto 1000 though there is undeniably a large increase in the number of criminal cases. The number of supervision orders passed under Section 4(3) of the Act similarly has been greatly reduced and has come to an insignificant level. The statement made in the writ petition is fully supported by the chart annexed to the counter-affidavit filed on behalf of the State showing the numbers of pre-sentence enquiry reports called for and supervision orders made by the Courts as received by Probation Officers all over the State in the years 2004, 2005 and 2006. In 2004, the total number of orders asking for pre-sentence enquiry reports for the whole State was 1300 and the number of supervision orders was 150. In 2005, the number of orders for pre-sentence enquiry was 1262 and of supervision Orders 97. In 2006, the number of pre-sentence enquiry orders was 104 and of supervision Orders 104. Thus, there can be no doubt that the Act. in this State has almost become confined only to the Statute Book.
3. It is further stated in the writ petition that even in the very few cases where a trial Court proceeds under the Act, it mostly does so without calling for a pre-sentence report from the Probation Officer. The Court has no independent means to know the antecedents of the convicted accused. As a result, it sometimes happens that persons previously convicted of serious offences are released on probation or even simply after admonition. In the writ petition, some instances are given from the Patna City and Danapur Courts where a number of accused, convicted of relatively serious offences, were released on probation without any report from the Probation Officer.
4. It is also stated that non-application or wrong application of the Act leads to a situation where those who may not be entitled to the benefit under the Act get benefitted and those who fully deserve the protection and benefits of the Act are denied the protection.
5. In the writ petition, it is further stated that the Courts have developed the tendency to mostly proceed under Section 360 of the Code under the mistaken notion that the provisions of that section were a substitute and an alternate to the provisions of the Act.
6. The writ petition then goes on to discuss the aims and objects of the Act, its different provisions and the machinery set up under the Act (and the rules framed under it) to call for pre-sentence report and in appropriate cases to release the convicted accused on probation of good conduct and also to keep the convict, released on probation, under due supervision of the Probation Officer.
7. The statements made in the writ petition are quite correct and they present, by and large, a true picture of the way the Trial Courts in the State proceed beyond the stage of conviction in dealing with the question of sentence of the convicted accused. We are inclined to fake judicial notice of the fact that in this State the Act has become increasingly otiose and the trial Courts, specially at the level of Judicial Magistrates are becoming more and more unfamiliar with its provisions. The root cause for this appears to be the predilection of the trial Courts for Section 360 of the Code. The trial Courts seem to have taken the notion that the provisions of Section 360 of the Code can be equally used in place of the provisions of the Act. They find it simpler, easier and perhaps less cumbersome and time consuming than the provisions of the Act and a strong tendency has, therefore, grown to rely more and more on the provisions of Section 360 of the Code and, as a result, to more and more ignore the provisions of the Act. But such a notion/action is basically wrong and incorrect and it must be dispelled at the earliest. The provisions of Section 360 of the Code have no application in this State and the application of the Section to cases in this State is described by the Supreme Court as “an illegality resulting in highly undesirable consequences”.
8. In order to understand the correct legal position, it will be useful to take note of the following facts.
9. The Act was enacted on 16-5-1958 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 provided 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 different dates may be appointed for different parts of the State.
10. In Bihar, it was made applicable, to the whole of the State, w.e.f. 15-6-1959 vide notification published in the Bihar Gazette of 6-6-1959. At that time, the Code of Criminal Procedure, 1898 was in force and in Section 562, it had provisions very similar to those contained in Section 360 of the Code presently in force. Section 19 of the Act made the provisions of Section 562 of the Code of Criminal Procedure, 1898 inapplicable to areas where the Act had come into force. Section 19 of the Act is as follows:
19. 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.
11. There can be, therefore, no doubt that w.e.f. 15-6-1959, the provisions of Section 562 of the 1898 Code ceased to apply in this State.
12. In 1974, the Code of Criminal Procedure was recast and was freshly enacted as the Code of Criminal Procedure, 1973. It contains Section 360 that was framed by consolidating the provisions of Section 562(1), 380, 562(1)A, 562(2), 562(3), 562(4) 563(1), 563(2), 564(1) & 564(2) of the old Code. Sub-section 10 of Section 360 of the Code made it clear that the provisions of that Section would have no effect on the provisions of the Act. Section 360(10) is as follows:
10. 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.
13. But Section 360 in its new form gave rise to a little doubt. Section 360 of the new Code was not simply a reproduction of Section 562 of the earlier Code. It incorporated Section 380 as well as Sections 562(1)A. 563 and 564 (with some minor changes) of the earlier Code. A question, therefore, arose whether Section 19 of the Act would apply equally to Section 360 of the new Code. The controversy was set at rest at an early stage and their appears to be a judicial consensus on the issue. Practically, all the High Courts took the view that Section 360 of the new Code shall have no application in States/areas of a State where the Act had come into force. Some of the decisions of the different High Courts, on the point, are as follows:
(i) Gurbachan Singh v. State of Punjab 1980 Cri LJ 417 (D.B. Punjab & Haryana High Court);
(ii) Pushkar Raj v. The State of Punjab 1981 Cri LJ 1910 (S.J. Punjab & Haryana High Court);
(iii) State of Punjab v. Harbans Lal 1983 Cri LJ 13 (S.J.M.M. Punchhi, J. as his Lordship then was, Punjab & Haryana High Court);
(iv) Mustafa Sheikh v. Lalchand Sheikh 1985 Cri LJ 1183 (D.B. Calcutta High Court);
(v) M. Somashekhar v. S.A. Subbaraju 1989 Cri LJ 1686 (S.J. Karnataka High Court);
(vi) State of Himachal Pradesh v. Lal Singh 1990 Cri LJ 723 (F.B. Himachal Pradesh High Court);
(vii) In this Court earlier a learned single Judge noted the Full Bench decision of Patna High Court in Sunil Kahar v. State of Bihar 1992 (2) BLJ 75 : 1992 Cri LJ 3647.
14. A question may arise here why was Section 360 retained at all in the Code in view of the provisions of the Act, specially Section 19 of the Act. The answer is obvious. Till 1973-74 when the new Code was framed and it came into force there were certain pockets still left in the Country e.g. some parts of West Bengal where the Act had not come into force. In those areas, in the absence of Section 360 of the Code, the Courts would have been left with no means to release a convict, in appropriate cases, on probation of good conduct etc. But apparently Section 360 of the Code was intended to have a limited application in those areas where the Act was not applicable. The position was quite different in Bihar and in most other parts of the Country where the Act had already come into force and had rendered Section 562 of the 1898 Code inapplicable.
15. In any event, the issue is now conclusively settled beyond any further debate or discussion by decisions of the Supreme Court. In State through S.P., New Delhi v. Ratan Lal Arora 2004 AIR SCW 2480 : 2004 Cri LJ 2105, the Supreme Court examined the provisions of the Act and Section 360 of the Code in paragraph 9 as follows:
9. 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 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 v. State of West Bengal , 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 v. The State of Punjab and Som Nath Puri v. State of Rajasthan 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 its operation. Section 13 of the re-enacted Act is the corresponding provision to Section 5(2) of the old Act.
The Supreme Court then came to the following finding in paragraph 11 of the decision.
11. …Consequently, the references to Section 562 of old Code in Section 19 of the Probation Act and to Section 5(2) of the old Act in Section 18 of the Probation Act, respectively have to be inevitably read as references to their corresponding provisions in the newly enacted Code and the Act. Consequently, for the conviction under Section 13(2) of the1 Act the principles enunciated under the Probation Act cannot be extended at all in view of the mandate contained in Section 18 of the said Act. So far as Section 360 of the Code is concerned, on and from the date of extension and enforcement of the provisions of the Probation Act to Delhi powers under Section 562 of the old Code and after its repeal and replacement powers under Section 360 of the Code, cannot be invoked or applied at all, as has been done in the case on hand. The view taken to the contra is not legally sustainable and cannot have our approval.
16. The same view was reiterated in Channi v. State of U.P. (2006) 2 SCC (Cri) 466 : 2006 Cri LJ 4068, vide paragraphs 6, 7 and 8 of the decision which are as follows:
6. Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, that gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that the applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in Sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.
7. 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 Probation 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 Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same lime 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, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.
8. Enforcement of the Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the Code in that area.
17. In yet another decision, in Gulzar v. State of M.P. (2007) 1 SCC 619. The Supreme Court reiterated the same view in paragraphs 11, 12 & 13.
18. In MCD v. State at Delhi 2005 SCC (Cri) 1322 : 2005 Cri LJ 3077, the Supreme Court further held that though the Court may not be bound by it, calling for a report under Sub-section (2) of Section 4 was mandatory and the consideration of the report of the Probation Officer was a condition precedent to the release of the accused. Paragraphs 22, 23 and 24 of the decision are as follows:
22. We have already reproduced Section 4 of the POB Act. It applied to all kinds of offenders whether under or above 21 years of age. This Section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. The only limitation imposed by Section 6 is that in the first instance an offender under twenty-one years of age, will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the Court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can only be released on probation of good conduct under this section when the Court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The section itself is clear that before applying the section, the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot be released in view of Section 4 of the POB Act. The Court is bound to call for a report as per Section 4 of the POB Act but the High Court has failed to do so although the Court is not bound by the report of the probation officer but it must call for such a report before the case comes to its conclusion. The word “shall” in Sub-section (2) of Section 4 is mandatory and the consideration of the report of the probation officer is a condition precedent to the release of the accused as reported in the case of State v. Naguesh G. Shet Govenkar 1970 Cri LJ 465 and a release without such a report would, therefore, be illegal.
23. In the case of Ram Singh v. State of Haryana 1972 SCC (Cri) 162, a Bench of two Judges of this Court in para 16 of the Judgment observed as under (SCC p. 918):
16. Counsel for the appellants invoked the application of the Probation of Offenders Act. Sections 4 and 6 of the Act indicate the procedure requiring the Court to call for a report from the probation officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act.
24. In the case of R. Mahalingam v. G. Padmavathi 1979 Cri LJ (NOC) 20 (Mad), the Court observed as under Cri LJ (NOC) pp. 8-9:
If any report is filed by the probation officer, the Court is bound to consider it. Obtaining such a report of the probation officer is mandatory since Sub-section (1) of Section 4 says that the Court shall consider the report of the probation officer. The words ‘if any’ do not mean that the Court need not call for a report from the probation officer. The words ‘if any’ would only cover a case where notwithstanding such requisition, the probation officer for one reason or the other has not submitted a report.
Before deciding to act under Section 4(1), it is mandatory on the part of the Court to call for a report from the probation officer and if such a report is received, it is mandatory on the part of the Court to consider the report. But if for one reason or the other such a report is not forthcoming, the Court has to decide the matter on other materials available to it.
In the instant case, the Magistrate passed order releasing the accused on probation without taking info consideration their character. Held, the requirement of Section 4(1) was not fulfilled and therefore the case remanded.
19. In light of the. decisions of the Supreme 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.
20. All the Trial Courts are accordingly directed to strictly follow the aforementioned decisions of the Supreme Court in the trial proceedings.
21. Let copies of this order be sent to all the Sessions Judge to be circulated among the trial Judges/Magistrates in their respective Divisions.
22. Let a copy of this order be also sent to the Director, Judicial Training Academy who should hold special classes for the trial Courts specially the Judicial Magistrates to make them fully conversant with the provisions of the Act and the Rules framed thereunder.
23. The Court records its appreciation for the service done by the writ petitioner to the Administration of Criminal Justice in this State. The Director, Judicial Training Academy will be well advised to consider to request the writ petitioner to come to the Academy as a guest Lecturer and to give lecture to the trial Judges/Magistrates on the provisions of the Probation of Offenders Act, 1958 and the Rules framed thereunder.
24. This writ petition stands disposed of with the aforesaid observations and directions.
Rekha Kumari, J.
25. I agree.