STATE OF HIMACHAL PRADESH Vs. DARSHAN SINGH

JUDGEMENT

(1.) The State has filed the above appeal under Section 377 of the Code of Criminal Procedure for enhancement of sentence against the judgment of the learned Additional Sessions Judge, Sirmour District at Nahan in Criminal Appeal No. 12-N/b of 90 dated 29-5-1993, wherein while affirming the conviction and sentence imposed upon the respondent herein the appellant before the learned Additional Sessions Judge, was ordered to be released on probation under Section 4 of the Probation of Offenders Act, 1958 with a direction to enter into a bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of learned Judicial Magistrate, 1st Class, Paonta Sahib within 30 days from the date of judgment and to keep peace and be of good behaviour for a period of two years and to appear and receive sentence when called upon during such period. The respondent along with four other accused were tried for offences under Sections 147, 148, 149, 323, 324, 326 and 506. I.P.C. and by a judgment dated 8-6-1990 the Judicial Magistrate 1st Class, Court No.2, Paonta Sahib, District Sirmour convicted the respondent herein under Sections 323, 324 and 326, I.P.C. and sentenced him to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs. 1,000/- under Section 326, I.P.C. and in default of payment of such fine to undergo simple imprisonment for two months. He was also imposed with a penalty of Rs. 500/- under Section 323, I.P.C. and in default simple imprisonment for one month and under Section 324, I.P.C. to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/- and in default simple imprisonment for one month. The sentences imposed were ordered to run concurrently.

(2.) As noticed earlier, the State filed the above appeal under Section 377 of the Code of Criminal Procedure seeking for enhancement of the sentence. Heard Mr. M.L. Chauhan, learned Deputy Advocate General. We have gone through the provisions of the Probation of Offenders Act, 1958, particularly Sections 4 and 11 as also Section 377 of the Code of Criminal Procedure. Sub-section (1) of Section 377 of the Code of Criminal Procedure lays down that save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground on its inadequacy. Sub-section (2) of the said provision, which has been excepted from the purview of sub-section (1) has no relevance to the case. The appeal in this case for enhancement of sentence on the ground that sentence was inadequate is not against a conviction on trial by Court other than the High Court but against the judgment of the first appellate Court and on the language of the very provision viz. 5. 377, Cr. P.C. itself no appeal could be maintained in this Court against the judgment of the appellate Judge on the ground of any inadequacy of sentence seeking and particularly for its enhancement.

(3.) Section 4 of the Probation of Offenders Act. 1958 empowers Courts to release certain offenders on probation of good conduct. In this case as noticed earlier, though the learned trial Judge has chosen to convict and impose the sentence, the learned first appellate Judge while confirming the conviction as also the sentence imposed thought fit to extend the benefit of Section 4 to the respondent and passed an order granting such benefits subject to the conditions imposed there in, as noticed supra. Section 11 of the said Act provides for Courts before which appeal or revisions can be preferred against order made under the Act and such appeals or revisions could be only against the benefits granted under the Act. Sub-section (1) of section 11 lays down that notwithstanding anything contained in the Code or any other law, an order under the said 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. Consequently the learned first appellate judge would be well within his powers to pass an order extending the benefit of Section 4 in this case. Sub-section (2) of Section 11 provides that notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offenderT other than a High Court, an appeal shall lie to the Court to which appeals ordinarily lie from the sentence of the former Court. As pointed out while dealing with the applicability or otherwise of Section 377 of the Code of Criminal Procedure to the case in hand the present appeal is not one filed against the order passed by a Court trying the offender but is one filed against the order passed by the first appellate Judge. Sub-section (4) of Section 11 becomes also relevant to be noticed, which provides that when an order is 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 or revision may set aside such order and in lieu thereof pass sentence on such offender according to law. Whatever may be the rights open to the State to file a revision against the order of the learned first appellate Judge in this case in terms of the provisions contained in the Probation of OffendersT Act, 1958 also there is no scope for filing an appeal in this Court against the order of the learned first appellate Judge passing an order under Section 4 of the Act giving the benefit under the said provision to the respondent. We find that a Division Bench of the Allahabad High Court has taken a similar view in State of U.P. v. Balezar and the principles laid down by the said Division Bench as to the manner in which the provisions of the Code as well as the Act require to be construed has our concurrence.