Criminal Appeal (SJ) No.393 of 1998 Against the judgment and order of conviction and sentence dated 22. 09. 1998, passed by Shri Ramjee Pandey, 3rd Additional Sessions Judge, Bhabhua, in Sessions Trial No. 372/161 of 1990/98. 1. Buddhu Bind @ Budhi Nath Prasad, son of Late Mahabir Bind. 2. Sita Ram Bind. 3. Raghu Bind. Both sons of Ram Maini Bind. All residents of village- Silauta, Police Station-Chand, District- Kaimur (Bhabhua). 4. Nanhak Bind, son of Jagrup Bind. Resident of- Goi, Police Station- Chand, District- Kaimur (Bhabhua). .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. R. C. Sinha, Advocate. Mr. Ram Bachan Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 324/34 I.P.C. and sentenced to undergo rigorous imprisonment for two years and further convicted for offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Other appellants have been convicted for offence under Section 324/34 I.P.C. and sentenced to undergo 2 imprisonment for one year each. 3. Learned counsel for the appellants however contends that, though, appellants have been convicted under Section 324 I.P.C. and 27 of the Arms Act, but benefit under Section 360 Cr.P.C. has not been provided in view of the fact that conviction was recorded under Section 27 of the Arms Act. 4. However, learned counsel for the appellants contends that occurrence took place in the year 1989 and there is allegation that bricks was falling in the house of the informant and female inmates of the house were used to abuse and Buddhu Bind tested and then Buddhu took it otherwise and threatened to teach a lesson and it is alleged that when the informant lit torch then saw then protested and thereafter fired causing injury in his leg. Hence contended that there was no motive on the alleged firing. However, the trial court did not extended benefit under Section 360 Cr.P.C. and 3 and 4 of Probation of Offenders Act in view of the fact that there is conviction under Section 27 of the Arms Act and further in view of fact that there was injury by fire arm. 5. However, question for consideration whether 3 benefit under Section 4 of Probation of Offenders Act be given to convicts when offence under Section 27 of the Arms Act or maximum sentence under Arms Act is seven years and minimum sentence is three years. Section 360 Cr.P.C. and 4 of Probation of Offenders Act can apply to its when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of offence and the character of the offenders, it is expedient to release him of probation of good conduct, then notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment at once direct that he be released on his entering into a bond with or without sureties and receive sentence when called up during such period, not exceeding three years as the court may direct and to keep peace and be of good behaviour. However, Section of 4 of Probation of Offenders Act with an obstinate clause and hence this provision shall override with other provision whereas Section 27 of the Arms Act. 6. It is true that both Arms Act and Probation of 4 Offenders Act are special legislation and holds the field but the question arises which shall prevail. However, applying the principle of doctrine of pith and substance the question of consideration is which shall dominate the other in fact and circumstance of the case However, 27 of the Arms Act mentioned that minimum punishment under Section 27 of the Arms Act is three years. However, there is no non-obstinate clause. Whereas Section 4 of Probation of Offenders Act provides with a non-obstinate clause and hence it shall prevail over if it is satisfied the condition of Section 4 is satisfied i.e. the condition is that person is not committed for offence punishable with death or imprisonment for life as well as taken into consideration the nature of offence and the character of the offenders, it is expedient to release him of probation of good conduct. 7. However having regard to the fact if there is competition between penal and remedial provision, the remedial provision is required to be liberally construed and if there is any reasonable doubt or ambiguity, the doubt and ambiguity should be resolved in favour of the person for whose benefit the remedial statute has been enacted. Hence once the Probation of Offenders Act is applicable 5 the benefit can be extended and merely because three years minimum sentence has been provided in Arms Act it cannot be said that it will override the provision of Offenders Act. 8. However, taking into consideration the fact that occurrence is of the year 1989, both persons are neighbour and occurrence took place on petty matter and further the age of appellant no. 1 as 55 years in the year 1998, now he must be even 65 years. Hence it is expedient in the interest of justice, extended the benefit of Probation of Offenders Act. Hence I extend the benefit of Probation of Offenders and the appellants are orders to be released on furnishing bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each for keeping peace and good behaviour and shall face sentence as and when call by the lower court. 9. With this modification of sentence this appeal is dismissed. Patna High Court The 19th September, 2011. NAFR/m.p. (Gopal Prasad, J.)