1. The State has filed this appeal under Section 377 Cr.P.C.
2. The few facts giving rise to this appeal may be narrated briefly as follows : Two accused persons out of whom A-2 is the only person concerned in this appeal as by an order passed by this Court on 16-1-1981 the appeal against A-1 was dismissed for non-prosecution. were tried by the Judicial Magistrate, First Class, Basavakalyan. in C.C. No. 10/3/76 for having committed offences punishable under Sections 457 and 380 r/w 34 of IPC. The learned Magistrate found them guilty of having committed the said offences and convicted them. In regard to the question of sentence to be passed on them. he observed as follows :
'...... However, there is no evidence before the Court that there are previous convictions to the accused; that they have committed offences in question for the first time. It is also clear from the records that accused-1 in this case has remained in custody for a period of about more than two months and A-2 has remained in custody for a period of about two months and in my opinion this punishment already undergone by accused is sufficient to teach a lesson to them not to repeat the offence in future. Further, keeping in view the ages of the accused and their antecedents I am of the opinion that this is a fit case where the accused may be given benefit of the provisions of S. 4 of the P.O. Act thereby allowing them to reform themselves instead of sentencing them to jail. Therefore. in the light of the above I proceed to pass the following order :
The accused are convicted under Section 248(2) Cr.P.C. for the offence under Sections 380 and 457 IPC and instead of being sentenced they are ordered to be released on entering into a bond of Rs. 1000 (rupees one thousand) for a period of one year each, to keep peace and be of good behaviour, failing which shall receive sentence from the court whenever called upon.'
The State being of opinion that sentence has been passed on the two accused and the sentence passed is and requires to be enhanced has preferred this appeal under Section 377 Cr.P.C.
3. Sri Mohanreddy H. Sawkar, appearing on behalf of A-2 who is the only respondent as already narrated, through the Legal Aid Society, has raised a preliminary objection that the appeal is not maintainable. The learned State Public Prosecutor appearing for the State contended that the powers exercisable by this Court under S. 377 Cr.P.C. which provides a right of appeal to the State are wide enough to interfere with the order in question and impose just and adequate sentence on the respondent.
4. Now the short question is whether an appeal under Section 377 Cr.P.C. as against such an order - excerpted above lies in view of the provisions of the Probation of Offenders Act, 1958. (hereinafter referred to as the Act), taking into consideration Section 377 of the Cr.P.C. 1973 (hereinafter referred to as the new Code). In the course of this judgment we would be referring to the Cr.P.C. 1898 also as the old Code.
5. Perusal of the provisions of the Act can leave no doubt in anyone's mind that they apply only after conviction of a particular person in regard to certain offences as enumerated in Sections 3, 4 and 6 of the Act. Section 6 of the Act particularly deals with an accused aged under 21 years and convicted. But it also says that for the purpose of applying Section 6 of the Act the Court has to follow the procedure prescribed therein i.e., under Sub-section (2) of Section 6 of the Act. Section 11 of the Act reads as follows :-
'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 Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.' What is the scope of Section 11 of the Act has been settled by the Supreme Court in Rattan Lal v. State of Punjab : 1965CriLJ360 . Anyhow, we are not, in view of the facts and circumstances of this case, much concerned about this principle laid down by the Supreme Court. We are concerned with the scope and operation of sub-sections (2) and (4) and the proviso to Sub-section (4) of Section 11 of the Act Plain reading of Sub-section (2) of Section 13 of the Act makes it crystal clear that as against an order passed under Section 3 or Section 4 of the Act by a Court, excluding a High Court, there is an appeal to the Courts to which appeals ordinarily lie from sentence of the former Court. Sub-section (2) of Section 11 of the Act commences with a non obstante clause namely, 'Notwithstanding anything contained in the Code.' The Code referred to therein when the provision we enacted was the old Code. In view of the old Code having been repealed by the New Code by virtue of Section 484 of the New Code, it has got to be understood as reference made to the new Code. If not, it would amount to laying down that for the purpose of the Act the Old Code is still in force, which evidently cannot be so.
6. The expression 'an appeal shall lie to the Courts to which appeals ordinarily lie from the sentences of the former court' in Sub-section (2) of Section 11 of the Act clearly means that a reference should be made to Section 374 of the New Code to find out to which Court appeals ordinarily lie against sentences passed by a Judicial Magistrate. First Class, because the order in Question has been passed by the Judicial Magistrate, First Class. Basavakalyan. To provide further clarification, we can with advantage refer to the settled law on the question while dealing with Section 520 of the old Code vis-a-vis Section 517 of the old Code. Same would be the position when sub-section (2) of Section 458 of the new Code is looked into vis-a-vis an order made by the Judicial Magistrate First Class, under Section 452 of the new Code. Therefore, the appeal contemplated under sub-section (2) of Section 11 of the Act as against the order passed under S. 3 or S. 4 of the Act by a judicial Magistrate, First Class, has to lie to the concerned Sessions Court. In this case. The Sessions Court is Bidar. As Sub-section (2) of Section 11 of the Act refers to only orders passed under the provisions of the Act and not to the conviction, it cannot apply to an appeal against a conviction or sentence. If a convicted accused intends to prefer an appeal against the sentence imposed on him he has to fall back on the provisions of Section 374 of the new Code. We may in this connection, with advantage, refer to Baidyanath Prasad v. Awadhesh Singh : AIR1964Pat358 , Rajkishore v. Kalasi Sahu (AIR 1971 Ori 193), State v. Jagdish and Shivcharan v. State . The very same principle has been laid down in the aforementioned decision, and we respectfully agree with their Lordships.
7. Now it has to be seen whether that portion of the order in question which pertains to the Magistrate having observed regarding the detention of the accused persons for a particular period and further expressed to the effect that such punishment already undergone by them is sufficient to teach a lesson to them not to repeat the offence in future amounts to imposing of sentence on them. We have no hesitation in holding that the Magistrate has not by expressing himself in the aforementioned manner imposed any sentence on anyone of the accused particularly on the present respondent. He has expressed so to justify himself in applying the provisions of Section 4 of the Act. If he had meant to impose sentence equal to the period of detention undergone he could not have in law further proceeded to apply the provisions of Section 4 of the Act and release the accused on probation of good conduct with the conditions already narrated above. Therefore it is crystal clear that the Magistrate has not imposed any sentence after convicting the respondent and the other person but has passed an order under Section 4 of the Act. When that it so, Sub-section (2) of Section 11 of the Act squarely applies to the facts and circumstances of this case. The powers of the appellate court are also laid down in the very Section of the Act. That part of it is found in Sub-section (4). Hence, we hold that Section 11 of the Act is by itself exhaustive in nature and excludes the operation of the provisions of the New Code pertaining to preferring of appeals by persons who are convicted and sentenced for having committed offences falling within the purview of the different provisions of the Act.
8. The next question that arises is whether the State has a right of appeal under Section 11(2) of the Act in regard to the orders passed under Section 3 or Section 4 of the Act Re-reading of sub-section (2) of Section 11 of the Act shows that there is no restriction on anyone preferring an appeal. In fact it has been held in Raj Kishore v. Kalasi Sahu (AIR 1971 Ori 193) that even a private complainant in State persecutions can appeal under Section 11 of the Act but only against the propriety of the order under S. 3 and/or Section 4 of the Act and not against substantive conviction or acquittal Therefore, the State has a right of appeal as against an order passed under Section 3 or Section 4 of the Act and contend that such an order ought not to have been passed regard being had to the facts and circumstances of the case or the procedure followed by the concerned Magistrate and that the Magistrate ought to have proceeded to sentence the concerned convicted accused. That is exactly what is envisaged in sub-section (4) of Section 11 of the Act. The proviso to the said sub-section clarifies to a further extent the powers of the appellate court or revisional court by laying down that the sentence that it can impose in such an appeal under Section 11(2) of the Act after allowing the appeal would be limited to the sentence that could have been imposed by the Magistrate who had tried the concerned accused person or persons and convicted him or them.
9. In view of what we have reasoned in the preceding paragraphs, we conclude that this appeal is not maintainable.
10. In view of the fact that this Court had admitted this appeal without raising a question in regard to the maintainability, it is clear that the prima facie view of this court was that the appeal was competent and maintainable. Therefore, we direct that the appeal be returned to the appellant for presentation to proper court in case the appellant chooses to do so. It is with these observations that we reject this appeal.
11. Order accordingly.