20 September 2004
Supreme Court
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PRITHVI RAJ Vs KAMLESH KUMAR

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000609-000609 / 1999
Diary number: 8046 / 1999
Advocates: PUNIT DUTT TYAGI Vs


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CASE NO.: Appeal (crl.)  609 of 1999

PETITIONER: Prithvi Raj and Ors.

RESPONDENT: Kamlesh Kumar and Anr.

DATE OF JUDGMENT: 20/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

Two interesting questions both revolving round Section 11 of the  Probation of Offenders Act, 1958 (in short the ’Act’) are involved in  this appeal.  Though the questions are essentially of law, a brief  reference to the factual aspect would be necessary.

Appellants faced trial for alleged commission of offences  punishable under Sections 307, 323, 324 and 326 read with Section 149  of the Indian Penal Code, 1860 (in short the ’IPC’).  Learned Sessions  Judge, Karauli, Rajasthan, held that though accusations relating to  Sections 307, 307 read with Section 149 were not proved against the  accused persons, offence of Section 324 IPC was proved against accused- appellant Prithvi Raj while offence under Section 324 read with Section  149 IPC was proved against others.  Offence in terms of Section 323 IPC  was held to be proved against Tej Raj and offence under Section 323  read with Section 149 was proved against others. Offence under Section  148 IPC was also held to be proved. After hearing the accused persons  on the question of sentence, it was noticed that there was no  allegation of any earlier involvement in crime against any of the  accused persons, the incident was an old one, two of the accused were  students and accused Ratan was an aged person.  Taking into account all  these facts the trial court held that compelling reasons were there for  the accused persons to reform in life. Accordingly while imposing  sentence the trial court extended benefits under the Act and held that  they were to be on probation for two years to keep good behaviour and  were to execute personal security of Rs.3000/- each with similar amount  of bail bonds.  Each was ordered to pay Rs.1500/- as compensation, out  of which Rs.7500/- was directed to be paid to injured Radhey Shyam.   

An appeal purported to be under Section 11(2) of the Act was  filed before the High Court by the complainant contending that the  benefits of Section 3/4 of the Act were wrongly extended to the accused  persons. It is to be noted that an appeal was preferred by the accused  persons against the direction for payment of compensation. Same was  registered as SB Criminal Appeal No.458/98 and was dismissed.  The High  Court held that Section 5 of the Act permitted compensation to be  awarded when benefit of Section 4 of the Act was extended.

In appeal filed by the defacto complainant, apart from  questioning benefits under the Act, correctness of the conclusions  regarding nature of offence were also assailed.  The High Court was of  the view that the trial court was not justified in holding that no

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offence under Section 307 or 326 was made out.  It was held that the  accused persons were liable to be held guilty for offence punishable  under Section 326 IPC.  The matter was remitted to the trial Court to  award sentence for such offence.                                   

In support of the appeal Mr. L. Nageswara Rao, learned senior  counsel submitted that scope and ambit of sub-section (4) of the Act  has not been kept in view by the High Court.  In appeal filed in terms  of Section 11(2) of the Act, Appellate Court or the High Court, as the  case may be,  has jurisdiction to set aside the order made under  Section 3 or Section 4 and in lieu thereof pass sentence according to  law.  There was no scope for altering the nature of offence.   Additionally, it was submitted that defacto  complainant has no right  to file an appeal under sub-section (2) of Section 11. Strong reliance  was placed on the decision of the Division Bench of the Calcutta High  Court in Parmal Ghosh v. State of West Bengal and Ors. (1984 Crl. L.J.  1302).  There was no appearance for respondent no.1 (complainant).   

Learned counsel for the State supported the stand of the  appellants as regards the scope of adjudication under Section 11(4) of  the Act.

In order to appreciate the issue involved it would be proper to  quote Section 11 so far relevant.  The provisions read as:

"11. Courts competent to make order under the Act.  Appeal and revision and powers of courts in appeal  and revision.

(1)     Notwithstanding anything contained in the Code  or any other law, an order under this Act may be  made by any court empowered to try and sentence the  offender to imprisonment and also by the High Court  or any other court when the case comes before it on  appeal or in revision.

(2)     Notwithstanding anything contained in the Code,  where an order under Section 3 or Section 4 is made  by any court trying the offender (other than a High  Court) an appeal shall lie to the Court to which  appeals ordinarily lie from the sentences of the  former court.    (3)     In any case where any person under twenty-one  years of age is found guilty of having committed an  offence and the court by which he is found guilty  declines to deal with him under Section 3 or Section  4 and passes against him any sentence of  imprisonment with or without fine from which no  appeal lies or is preferred  then, notwithstanding  anything contained in the Code or any other law, the  Court to which appeals ordinarily lie from the  sentences of the former court may, either of its own  motion or on an application made to it by the  convicted person or the probation officer, call for  and examine the record of the case and pass such  order thereon as it thinks fit. (4)     When an order has been made under Section 3 or  Section 4 in respect of an offender, the Appellate  Court or the High Court in the exercise of its power  of revision may set aside such order and in lieu  thereof pass sentence on such offender according to  law.

       Provided that the Appellate court or the High

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Court in revision shall not inflict a greater  punishment than might have been inflicted by the  court by which the offender was found guilty".

    The first question is whether defacto complainant can prefer an  appeal under sub-section (2) of Section 11.  The provision only speaks  of the forum in which such appeal is to be decoded. It does not  specifically provide as to who can prefer an appeal.  There is a  divergence in view as regards maintainability of appeal by the  complainant.  Orissa and Patna High Courts have held that it was  maintainable at the instance of the defacto complainant.  (See  Rajkishore Jena v. Raja, alias Kalasi Sahu and Ors. (AIR 1971 Orissa  193) and  Baidyanath Prasad v. Awadhesh Singh and Ors. (AIR 1964 Patna  358).  It was held by the Patna High Court that the complainant can  file revision against the order of acquittal under the Code of Criminal  Procedure, 1973 (in short the ’Code’). Consequently, it was observed  that the complainant has interest in conviction and sentence.  Orissa  High Court dismissed the revision petition filed by the complainant  holding that it had right of appeal to Sessions Court under Section  11(2) of the Act.  Calcutta High Court in Parmal Ghosh v. State of West  Bengal and Ors. (1984 Crl. L.J. 1302) has taken a different view and  held that the State has a right to be heard at the time of imposition  of sentence but not the complainant. The role of the State Government  is to ensure that the accused person is punished for the offence  committed and adequate sentence is imposed.  If the State is of the  view that the sentence is inadequate it can move the higher court as  provided in the Code.   

The language of Section 11(2) is unrestricted as to the person  who can prefer an appeal. Therefore, there is no justification for  confining the right only with the convicted person or even to the  State.  The issue can be looked at from another angle. Under the  revisional jurisdiction the High Court in an appropriate case can  direct re-trial though it cannot convert the order of acquittal to an  order of conviction.  When an application in revision is allowed by the  Court against the order of acquittal at the instance of the private  party, the High Court is obliged in law to remand the appeal.  But in  all other circumstances the High Court is competent to pass any order  that may be passed by a court of appeal.   

It is to be noted that sub-section (2) of Section 11 commences  with the expression "notwithstanding anything contained in the Code"  and provides in unqualified terms that "an appeal shall lie to the  Court".  Under the Code the appeal proceedings are concerned only with  orders of acquittal or conviction.  While the provisions in Section  11(2) of the Act deal with something distinct from the fact of  conviction or acquittal.  The appeal under Section 11(2) of the Act is  not against acquittal or conviction but the propriety of the order  passed under Section 3 or Section 4 of the Act. The intention of the  legislature apparently is to confer such a right both on the  prosecution and the accused.  The interest of the complainant is not  totally lost sight of by the legislature.  It is statutorily provided  that revision application can be filed by the complainant against an  order of acquittal.  That being so, the complainant can prefer an  appeal under Section 11(2) of the Act questioning propriety of the  order passed under Section 3 or 4 of the Act.  The view expressed by  the Patna and the Orissa High Courts is the correct view and that of  the Calcutta High Court is not correct.  The said view is nullified.   

That brings us to the pivotal issue as to the scope and limit of  interference in an appeal under Section 11(2) of the Act. Section 11(4)  makes the position clear that only the propriety of the order passed  under Section 3 or 4 in respect of offenders can be dealt with by the  Appellate Court or High Court as the case may be. The Appellate Court

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or the High Court exercising revisional power may set aside such order,  meaning passed either under Section 3 or Section 4 and in lieu thereof  pass sentence on such offender.  Obviously, the sentence can be imposed  only in respect of the offence relating to which the order under  Section 3 or Section 4 of the Act has been passed.  There is no scope  of altering nature of offence and for directing that the accused shall  be convicted for another offence. The High Court was, therefore, not  justified in directing that the conviction of the appellants shall be  under Section 326 IPC.  We find that the trial court had given adequate  reasons for passing the order under Section 4 of the Act. That being  so, the High Court was not justified to interfere with the benefit  extended by the trial court under the Act.   

The judgment of the High Court is set aside and that of the trial  court is restored.

The appeal is allowed.