SHIVCHARAN LAL Vs. STATE

JUDGEMENT

(1.) BRIEFLY stated the facts which give rise to this revisional application are that Shiv charan was cutting leaves of a Neem tree belonging to Shri Ham and the latter objected to it. Shiv Charan felt offended, went to his house and came with other accused Hargyan, Mullah and Panchya. Shiv Charan caught hold of Shri Ram's father Vishram in his arms and Hargyan struck a Farsa blow on him. The right knee of Vishram registered a cut wound measuring 1 3/4" x 1" x 1/2" and the bone below it was fractured and a piece of the hone had to he extracted from his knee. The accused denied their guilt but the learned Magistrate found only hargyan and Shiv Charan guilty under Section 326 read with Section 34, I. P. C. He acquitted the other accused. He awarded to Hargyan one year rigorous imprisonment and a fine of Rs. 200/, but extended the benefit to Shiv Charan under the Probation of Offenders Act and ordered him to execute a bond in the sum of Rs. 1000/- for one year to keep peace and to be of good behaviour. On appeal by Hargyan and Shiv Charan the learned Additional Sessions Judge closely examined the evidence led in the case and came to the conclusion that they were rightly convicted and their appeal was dismissed. Rut in the appeal by the State against Shiv Charan for his having been given the benefit of Section 6 of the probation of Offenders Act the learned judge found that the Magistrate was in error and he set aside that part of the order and substituted it for one year's rigorous imprisonment and to pay a fine of Rs. 200/- and in default to undergo an additional sentence of one month's rigorous imprisonment. Dissatisfied Shiv charan has come up before me. Nothing need be said about Hargyan because his application was rejected in limine.

(2.) MR. Chatterjee, the learned counsel for Shiv Charan argued that no appeal is provided for in Section 11 against the judgment of the Magistrate when he acted under Section 6 an independent provision under the Probation of Offenders Act and, therefore, the appeal of the State against Shiv Charan was not competent. He further submitted that the forum of appeal under Section 11 has to be determined by the provisions of Code of Criminal Procedure and in the entire Code no appeal by the State lies against a conviction to a Sessions Judge and, therefore, the action of the learned Additional Sessions Judge, Gangapur City was without jurisdiction. On merits also he submitted that where three persons caught hold of Vishram, Shiv Charan alone should not have been convicted.

(3.) MR. Singhvi, the learned counsel for State, argued that Section 6 is not an independent provision hut is merely an extension of Sections 3 and 4 of the Act. The order passed under Section 6 was in essence one under Section 4 and an appeal was competent. He further submitted that it is only for determining the forum for appeal under Section 11 (2) that the Code of Criminal Procedure had to be consulted and because against the judgment of the Magistrate an appeal lay before the Court of the Sessions Judge, such an appeal was properly submitted.