State of M.P. vs Daizybai

R.L. Jhanwar, J.—The Respondent was prosecuted for committing offence punishable under Sections 452 and 323 of the IPC. While convicting the Respondent under Sections 452 and 323 of the IPC, Judicial Magistrate First Class, Dantewada, exercising powers u/s 3 of the Probation of Offenders Act, 1958 (hereinafter referred to as ''the Act''), released the Respondent after due admonition. Being aggrieved, the State/Appellant has preferred this Criminal Appeal u/s 377(1) of the Code of Criminal Procedure.

I have heard learned Counsel for both the parties and have perused the record.

Learned Counsel for the Respondent referring to Section 11 of the Act and the judgment passed by the Apex Court in the matter of State of Uttar Pradesh Vs. Nand Kishore Misra, , vehemently contended that the appeal filed by the State is not maintainable because no such appeal is competent before the High Court under Sections 374(3) and 377(1) Code of Criminal Procedure and Section 11(2) of the Act.

Section 374(3) Code of Criminal Procedure reads as under:

374.(3) Save as otherwise provided in Sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class or

(b) sentenced u/s 325, or

(c) in respect of whom an order has been made or a sentence has been passed u/s 360 by any Magistrate,

may appeal to the Court of Session.

Section 377(1) Code of Criminal Procedure reads as under:

377.(1) 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 against the sentence on the ground of its inadequacy-

(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

Section 11(2) of the Probation of Offenders Act, 1958 reads as under:

11.(2) Notwithstanding anything contained in the Code, where an order u/s 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.

On reading above provisions together, it is clear that only on the ground of inadequacy of sentence State may prefer appeal before the High Court and if instead of sentence, convict has been released on probation, the appeal shall lie to the Court to which the appeal ordinarily lie from the sentence of trial Court. When Magistrate, instead of sentencing the convict, released him on probation, the appeal shall lie to the Court of Sessions, where ordinarily appeals lie from the sentences awarded by the Magistrates, in accordance with Section 374(3) Code of Criminal Procedure.

In the matter of State of Uttar Pradesh, Appellant v. Nana1 Kishore Misra, Respondent, the Apex Court has observed as below:

Where the convict was released on probation u/s 4 of the Probation Act, by the Magistrate, the appeal against release would lie to the Sessions Court in view of the provisions of Section 11(2) of the said Act and appeal to the High Court u/s 377(1) of the Code of Criminal Procedure would not be competent.

In the result, the appeal filed by the State is not competent. The appeal is liable to be dismissed and it is accordingly dismissed.