Chandreshwar Sharma Vs. State of Bihar
EmailAppeal: Criminal Appeal No. 13 of 2000
(Arising out of SLP (CRL) No. 2955 of 1999)
Petitioner: Chandreshwar Sharma
Respondent: State of Bihar
Apeal: Criminal Appeal No. 13 of 2000
(Arising out of SLP (CRL) No. 2955 of 1999)
Judges: G.B. PATTANAIK & U.C. BANERJEE, JJ.
Date of Judgment: Jan 07, 2000
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Sections 360 – 361 with Indian Penal Code, 1860 – Section 379 – Probation – Conviction under Section 379 IPC – Affirmed upto High Court – None of the forums below considering the applicability of provisions. Held that accused be given benefit of provisions of Section 360. Directed to furnish bond as no reason to deny. (Para 3)
Criminal Procedure Code, 1973
Sections 360 – 361 with Indian Penal Code, 1860 – Section 379 – Probation – Conviction under Section 379 IPC – Affirmed upto High Court – None of the forums below considering the applicability of provisions. Held that accused be given benefit of provisions of Section 360. Directed to furnish bond as no reason to deny. (Para 3)
JUDGEMENT:
ORDER
1. Appearance memo filed by Mr. B.B. Singh on behalf of the State of Bihar be accepted as appearance in this case.
2. Leave granted.
3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered ap-pearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had consid-ered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appell-ant be released on probation of good conduct instead of sentenc-ing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magis-trate, Ranchi, within 3 weeks from today. The appeal is dis-posed of accordingly.
1. Appearance memo filed by Mr. B.B. Singh on behalf of the State of Bihar be accepted as appearance in this case.
2. Leave granted.
3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered ap-pearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had consid-ered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appell-ant be released on probation of good conduct instead of sentenc-ing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magis-trate, Ranchi, within 3 weeks from today. The appeal is dis-posed of accordingly.
