S.S. Sandhawalia, J.
1. Whether the prosecuting State can move an appeal to the Court of Session against the judgment of the trial Magistrate passed under Sections 3 and 4 of Probation of Offenders Act is the primary question which falls for determination in this criminal revision.
2. Raghbir Singh respondent was brought to trial on a charge under Section 9 of the Opium Act before the Judicial Magistrate. 1st Class, at Charkhi Dadri. Though in the first instance, the respondent had pleaded not guilty to the charge, however, during the course of the recording of the evidence of P. W. 1 he voluntarily offered to make a confession which was recorded. Basing itself on the plea of guilt, the trial Court recorded a conviction but for reasons recorded in the judgment accorded the benefit of Sections 3 and 4 of the Probation of Offenders Act to the respondent. Consequently he was directed to be released on furnishing a personal bond in the sum of Rs. 1500/- for a period of one year from the date of the order and further was directed to remain under the supervision of the District Panchayat Officer. Narnaul, for a period of one year.
3. The State did not file any appeal against the order above-said but moved the Court of Sessions by wav of revision for getting the order above-said set aside. The matter came up before the Additional Sessions Judge and for the reasons recorded, he has made the recommendation that the punishment awarded to the respondent should be enhanced to six month's rigorous imprisonment.
4. The reasons given by the learned Additional Sessions Judge are not without considerable merit. However an objection to the competency of these revision proceedings has been mainly Dressed on behalf of the respondent by Mr. V. G. Dogra. It is argued that under Section 11(2) of the Probation of Offenders Act. the State, if it felt aggrieved by the order of the trial Magistrate was entitled to file an appeal for challenging the same. Nevertheless it did not avail of this statutory remedy and moved the Court of Session by wav of revision. It was hence contended that by virtue of the provisions of Section 439(5) no revision was competent at the instance of a party who was entitled to file an appeal. Reliance on behalf of the respondent was placed on Kanhai Singh v. Bhaskar Singh AIR 1964 Manipur 20 and Arakhita Behera v. Bhikari Behera ILR 1968 Cut 223.
5. On behalf of the State Mr. Mittal has only faintly contended that the State was not entitled to file an appeal and hence the revision proceedings alone were competent. The relevant provision of the Probation of Offenders Act is in the following terms:
11 (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) x x x x x(4) x x x x xx x x x x
The language of Sub-clause (2) quoted above appears to be in unqualified terms. In the absence of any specific restriction. what particularly deserves notice is the non obstinate clause excluding the provisions of the Criminal Procedure Code in the context of the right of appeal granted by this section. It makes no limitation whatsoever by which it could be suggested that such a right was limited to the accused person alone and would not be available to the prosecutor. I deem it unnecessary to elaborate the matter further on principle as it appears to me to be fully covered by the decision of the Division Bench in Baidyanath Prasad v. Awadhesh Singh : AIR1964Pat358 . The Bench after a detailed examination of the rival contentions went even further and held that apart from the prosecuting State even the complainant would be entitled to prefer an appeal in these circumstances. It has been Laid down in the following terms:
In any view of the matter since the language of Sub-section (2) of Section 11 is comprehensive, flexible and unrestricted as to the person who can prefer an appeal there is no justification for confining a right of appeal only to the convicted person or even to the State when the State is conducting the prosecution but it must be taken that the privilege of filing an appeal on the narrow question of propriety of an action under Section 3 or 4 of the Act is conferred upon the complainant as well.
An identical view has also been expressed in Kanhai Singh's case AIR 1964 Manipur 20. I am hence in respectful agreement with the views lucidly expressed by the Division Bench of the Patna High Court. It follows, therefore, that in the present case the petitioning State of Haryana had a statutory legal remedy by wav of appeal against the order of the trial Magistrate. It did not avail of that remedy and in such a situation the bar of Section 439 (5) of the Code of Criminal Procedure will be attracted as has been Laid down in ILR 1968 Cut 223. An argument was sought to be raised on behalf of the State that in the present case now the recommendation has been made by the Additional Sessions Judge and this would exclude the attraction of the principle under Section 439 (b). An answer to this contention is well provided in the order of Chief Justice R. L. Narasimham in The State v. K Lachman Murthv : AIR1958Ori204 where repelling such a contention he Laid down as follows:
The Question ultimately turns on this; who is the person who has set the provision of the Code in motion for the purpose of interfering with the order of acquittal? If that person happens to be one of the parties to the judgment. it is immaterial whether that party moved the High Court direct, or through the Sessions Judge or the District Magistrate as the case may be
It is undisputed that the revisional jurisdiction under Section 439. Criminal Procedure Code, is discretionary. The petitioning State which had a statutorv right and remedy by wav of appeal had not exercised the same. On general principles and also on the specific provisions of Section 439 (5) a party who has a right of appeal cannot be allowed to have resort to revision proceedings. I am hence disinclined to interfere at the instance of the State in the present case and would consequently decline the reference.