CHHANNI V. STATE OF U.P., (2006) 5 SCC 396 203

CITATION	5 SCC 396 203
DATE OF JUDGEMENT	July 6th , 2006
COURT	The Supreme Court of India
PETITIONER	Chhanni
RESPONDENT	The State of Uttar Pradesh
BENCH	Arijit Pasayat, Lokeshwar Singh Panta

INTRODUCTION

The appellant challenges the validity of the order rendered by an experienced single judge of the Allahabad High Court, Lucknow Bench, Lucknow, which dismissed three appeals and denied a motion to modify the verdict. 

 Appellant Chhanni was found guilty of charges covered by the Indian Penal Code, 1860 (commonly known as the “IPC”), namely Sections 304 Part II, 323/149, and 147. He received a punishment of five five-year prison terms for the first offense, six months for the second, a fine of Rs. 250/-for the third, and one year for the fourth. The State’s appeal against Mohan Lal and three others’ acquittal and their appeal for sentencing enhancements were both rejected by the High Court. The appellant’s appeal was partly allowed.

FACTS

The appellant requested an alteration of the judgment and decision by filing an application with the High Court. He was found guilty under Section 323 IPC and given a prison term of one year, however, his conviction under Section 304 Part II IPC and the punishment imposed thereunder were overturned. His conviction for inflicting simple harm on Raja Ram under Section 323 read with Section 149 IPC was changed to one under Section 323 IPC, but the sentence for that conviction remained in place. His conviction was overturned for Section 147 of the IPC.

 His request was to be placed under Section 4 of the Probation of Offenders Act, 1958 (also known as the “Probation Act”) or, if that was not possible, under Section 360 of the Code of Criminal Procedure, 1973 for release on probation. The plea that was pushed into service was not raised in front of the High Court at the Criminal Appeal hearing. The High Court observed, that there was no provision allowing the revision of an order. Consequently, the petition was turned down.

ISSUE

1. Is there a provision for modification of the judgment?
2. Whether the appellant’s appeal for modification in the judgment be allowed? 

RULE

1. Sec 360 of CrPc: Anybody who transports a person outside of India without that person’s consent or the consent of a legally appointed representative is considered to have abducted that person from India. Section 360 of the Code applies only to individuals who are not younger than 21 and who have been found guilty of a crime that carries a fine or a sentence of seven years or less in jail. It also applies to any woman or person under 21 who has been found guilty of a crime that carries no death penalty or life in prison.

2. Sec 4 of Probation Act: It is applicable to anybody found guilty of a crime that carries neither a life sentence nor the death penalty. If the court determines that it is more convenient to release a person on probation for good behavior, then, regardless of any other laws currently in effect, the court may, rather than immediately sentencing him to any punishment, order that he be released upon entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not to exceed three years, as the court may direct, and in the interim to maintain peace and behave well.

APPELLANT’S ARGUMENT

The appellant’s learned counsel contended that the appellant’s counsel was absent when the case was summoned before the High Court. However, taking into account that the appeal had been pending for over ten years, the High Court heard the State’s knowledgeable counsel and issued a ruling that was requested to be modified. Due to legitimate issues, the appellant’s attorney was unable to attend.

RESPONDENTS ARGUMENT

Despite notice, the State of Uttar Pradesh does not make an appearance.

ANALYSIS

In cases when the Probation Act’s requirements apply, Section 360 of the Code should not be used. The legislation intended to prevent such an application since it would be unlawful and have very unpleasant effects. This is why the Probation Act and the Code were created. However, the lawmakers wisely required the Court to apply one of the other helpful provisions, such as Section 360 of the Code or the Probation Act’s requirements, under Section 361 of the Code.

If the court determines that it is more convenient to release a person on probation for good behavior, then, regardless of any other laws currently in effect, the court may, rather than immediately sentencing him to any punishment, order that he be released upon entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not to exceed three years, as the court may direct, and in the interim to maintain peace and behave well.

The provisions of Sections 360 and 361 of the Code are not applicable in some areas where the Probation Act is being enforced.

JUDGEMENT

The High Court’s conclusion that the judgment cannot be changed is supported by evidence. However, in light of the unique circumstances, we order the High Court to take into account the appellant’s application under the Probation Act or Section 360 of the Code, as applicable, and issue the necessary ruling within three months of receiving this order. We clarify that we have not made any judgments about the merits. The appeal has been allowed.

CONCLUSION

In its wisdom, the legislators required the Court to apply one of the other helpful provisions, such as Section 360 of the Code or the Probation Act’s requirements, under Section 361 of the Code. The Court may only deny their application by giving particular justifications.

The appeal was allowed and the leave was granted,