State Of Uttarakhand vs Som

Alok Kumar Verma, J

Present Government Appeal has been filed under Section 377 of the Code of Criminal Procedure, 1973 on the ground of inadequate sentence dated 08.05.2008, passed by learned Additional Sessions Judge/ Ist Fast Track Court, Haridwar in Sessions Trial No. 71 of 2004, “State vs. Som and Another”, whereby, benefit of probation under Section 4 of the Probation of Offenders Act, 1958 (for short, “Act, 1958”) for a period of two years has been granted.

Respondent-accused- Som was convicted for the offence punishable under Section 323 of the Indian Penal Code, 1860 (for short, “IPC”), under Section 325 IPC and Section 427 IPC.

Heard Mr. S.S. Adhikari, learned Deputy Advocate General along with Mrs. Shivangi Gangwar, learned Brief Holder for the appellant and Mr. Nagesh Aggarwal, learned counsel for the respondent.

Mr. S.S. Adhikari, learned Deputy Advocate General, submitted that the present appeal has been filed against the order of inadequate sentence. He further submitted that the Trial Court has committed error by not taking into consideration that Section 323 IPC provides imprisonment for a term which may extend to one year, or with fine, or with both; Section 325 IPC provides imprisonment of either description for a term which may extend to seven years with fine; and Section 427 IPC provides imprisonment of either description for a term which may extend to two years, or with fine, or with both.

On the other hand, learned counsel appearing for the respondent has supported the impugned sentence and contended that appeal should be filed under sub-section (2) of Section 11 of the Act, 1958, therefore, the present Government Appeal, filed under Section 377 of the Code of Criminal Procedure, 1973, is not maintainable. In support of his submission, he relied upon a judgment of Hon’ble High Court of Rajasthan, in “State of Rajasthan vs. Hari Ram, 2017 0 Supreme (Raj) 1924”.

Section 11 of the Act, 1958 is 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 the 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.”

By passing impugned judgment, learned Trial Court has observed that the accused is an old person and there is no adverse report against him, therefore, it would be appropriate to grant benefit of probation under Section 4 of the Act, 1958.

Present matter is pending since the year 2002. Incident took place on 29.06.2002 and First Information Report (Ext. Ka. 8) was registered on 30.06.2002. Charge was framed on 27.04.2004 for the offence under Section 323/34 IPC, Section 308/34 IPC, Section 336/34 IPC, Section 427 IPC, Section 504 IPC and Section 506 IPC. Statements of the respondent-accused under Section 313 of the Code of Criminal Procedure, 1973, was recorded on 18.03.2008 and at that time, he was 62 years old. Respondent-accused has been acquitted of the charge under Section 308/34 IPC, Section 336/34 IPC, Section 504 IPC and Section 506 IPC.

Learned counsel for the respondent has argued that the present Appeal is not maintainable under Section 377 IPC, and, he has relied upon the said judgment in the case of State of Rajasthan (Supra).

Apart from this, present matter is pending since 2002, and, at that time, the respondent-accused was 56 years old. Respondent-accused has no criminal history and there is nothing on record to indicate that the respondent had earlier been involved in any unacceptable activity. This is a fit case to grant benefit of probation. Therefore, I am of the view that order to grant benefit of probation suffers from no infirmity and accordingly the same is upheld.

As a result, present Government Appeal is liable to be dismissed. The Government Appeal is dismissed accordingly.