COMMANDANT 20 BN. ITB POLICE versus SANJAY BINJOLA

Citation: [2001] 3 S.C.R. 367 · Decided: 02-05-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

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Judgment (excerpt)

7 
COMMANDANT 20 BN. ITB POLICE 
A 
v. 
SANJAY BINJOLA 
MAY 2, 2001 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
B 
Code of Criminal Procedure, 1973. 
Section 386-Clause (e)-Appe//ate Court-Power to make amendment 
in the impugned order-Power to make incidental order that may be just and C 
proper-Scope of power-Does not include power to interfere with service 
career of the accused. 
Inda Tibetan Border Po/ice-Constable-Conviction under Section 
JO(n) of the Central Reserve Police Force Act, 1949-Ap~eal-Direction 
given by appellate court-Conviction and sentence should not affect service D 
career of the accused-Held invalid. 
Probation of Offenders Act, 1958--Sections 3 and 4 
Object of the Act discussed-Accused convicted under Section lO(n) of E 
the Central Reserve Police Force Act, 1949-Held, Entitled to benefit of 
probation. 
The respondent, a Constable.oflndo-Tibetan Border Police, was convicted 
under Section lO{n) of the Central Reserve Police Force, Act, 1949 and 
sentenced to imprisonment for a period of three months. The appellate court F 
modified the sentence but further directed that the order passed by it shall 
not adversely affect the service career of the accused. This direction given 
by the appellate court was challenged in revision before the High Court. 
Relying upon clause (e) of Section 386 of the Code of Criminal Procedure, 
1973 the High Court held that the appellate court had the power to pass the G 
impugned order. 
In appeal to this Court it was contended on behaifof the appellant that 
the appellate as well as the revisional court had no jurisdiction to direct that 
the conviction and sentence awarded to the respondent would not adversely 
affect his service career. 
367 
H 
368 
SUPREME COURT REPORTS 
[2001] 3 S.C.R. 
A 
On behalf of the respondent it was contended that even if it is conceded 
B 
that the High Court had no jurisdiction to pass the impugned order, the said 
order may be treated to have been passed under the Probation of Offenders 
Act, 1958. 
Allowing the appeal and setting aside the impugned order, the Court 
HELD : 1. The High Court committed a mistake of law by clothing the 
order of the appellate court to be an order passed in terms of Section 386 
of the Code of Criminal Procedure, 1973. After passing the order of conviction 
and sentence, the criminal court should not have issued any direction relating 
to the service career of the respondent which is governed by the Act, Rules 
C made thereunder the service rules governing his conditions of service. 
[372-C] 
2. Clause (e) of S.386 of Cr. P.C. empowers the Court to make any 
amendment or pass any consequential or incidental order that may be just 
or proper. Orders contemplated under the said clause are only such orders 
D which are permissible under the Code or any other law in force. Such a 
power does not confer a jurisdiction upon the appellate court to pass orders 
which tend to interfere with the service career of the convict. Amendment 
of the order means amendment of the main order and does not empower the 
court to pass an order which affects the rights of a party not before it. 
E Incidental or consequential orders are such orders which are permissible 
under law and likely to follow as a result of the main order. The consequential 
or incidental orders contemplated under clause (e) are orders which follow 
as a matter of course being necessary compliments to the main orders without 
which the latter would be incomplete and ineffective, such as issuance of 
directions for refund of fine realised from accused ultimately acquitted or 
F on the reversal of acquittal any direction as to punishment, fine or 
compensation payable under Section 250 of the Code and the like. 
[371-G-H; 372-A-B] 
3. Probation of Offenders Act, 1958 has been enacted in view of the 
increasing emphasis on the reformation and rehabilitation of the offenders 
G as a useful and self-reliant members of society "\vithout subjecting them to 
deleterious effects of jail life. The Act empowers the Court to release on 
probation, in all suitable cases, an offenller found guilty of having committed 
an offence not punishable with death or imprisonment for life or for the 
description mentioned in Sections 3--and 4 of the said Act. [372-F] 
H 
4. It is true that nobody can claim the benefit of Sections 3 and 4 of 
.. 
COMMANDANT 20 BN. ITB POLICE v. SANJAY BINJOLA [SETHI, J.] 
369 
the Probation of Offenders Act as a matter of right and the court ha

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