STATE OF U P Vs. SALEZAR

JUDGEMENT

(1.) THIS appeal by the State is directed against the order dated 29 -4 -1977 passed by Sri L.P. Misra, V Addl. Sessions Judge, Lucknow. The facts giving rise to the instant appeal in brief are these : The respondent Salezar an employee of Loco -Workshop Charbagh. Northern Railway, Lucknow, was caught red -handed on 24 -9 -1969 at about 4.40 p.m. at the gate No.4 of the Loco Workshop concealing 33 pieces of brass metal which were railway property. The weight of the brass metal was about 2 kilograms. A recovery memo was prepared before the witnesses and the accused -respondent Salezar was challaned under Section 3 of the Railway Property, (Unlawful Possession) Act. The trial Court after examining the witnesses and considering the evidence on record and the surrounding circumstances convicted the respondent and sentenced him to one year's R.I., vide order dated 23 -9 -1976. The present respondent Salezar impugned that order before the Sessions Judge, Lucknow by filing Criminal Appeal No.102 of 1976 which came up for hearing before the learned V Addl. Sessions Judge, Lucknow who after hearing the appellant and the respondent concurred with the trial Court both on the question of conviction and sentence. It appears from the impugned judgment of the learned V Addl. Sessions Judge that a request was made be fore him to reduce the period of sentence from one year's R.I. to the period already undergone by the accused who had been in jail in connection with that case for one month and ten days or so. The appellate Court below declined to do so observing that it was not a fit case for reduction of sentence. It, however, gave benefit of Section 4 of the Probation of Offenders Act, 1958, hence while dismissing the appeal the appellate Court below ordered that instead of serving out the sentence given by the learned Magistrate the accused shall be released on his entering into a bond of Rs. 1000/ - with two sureties in the like amount to appear and receive sentence within a period of one year from 'today' when called upon and during the period he will keep peace and be of good behaviour. The accused was permitted to file the personal bond as well as the surety bonds within a week from the order. It was also made clear that if the bonds were not submitted the accused will be taken into custody. Against this decision the State has filed the instant appeal under Section 377 of the Code of Criminal Procedure alleging that the appellate Court below has not assigned any good or valid reason for the release of the respondent under the provisions of the Probation of Offenders Act, 1958 and also pleading as ground that the reduction of sentence by the appellate Court below is against the provisions of the Railway Property (Unlawful Possession) Act.

(2.) THE learned counsel for the State submitted at the outset that the provisions of the Probation of Offenders Act, 1958 would not be applicable to a case covered by the Railway Property. (Unlawful Possession) Act and that at any rate there was no such adequate circumstances much less reason to extend the benefit of that Act to the respondent. In ground No.5 it has been stated that in any case the modified order of sentence by the lower appellate Court is inadequate and is liable to be set aside.

(3.) IN the result, the appeal is dismissed. Kamleshwar Nath, J. (Concurring) - While concurring with the views of my brother Mr. Justice T.S. Misra, I would like to add as follows: Section 377 (1) Cr.P.C., applies only to those appeals to the High Court which are filed against the sentence passed "in any case of conviction on a trial held by any Court other than a High Court". Conviction on a trial held by a Court is different from conviction by an appellate Court. In contrast to this provision in Section 377 (1) Cr.P.C., regarding appeal for enhancement of sentence, are the provisions of Section 378 (1) Cr.P.C. where provision has been made for appeal from "an original or appellate order of acquittal passed by any Court other than a high Court." On a comparative examination of these two statutory provisions, it would appear that Section 377 (i) Cr.P.C., does not contemplate an appeal against conviction and order passed by an appellate Court as contradistinguished from that in a trial.