N. G. CHAUDURI, J. ( 1 ) SIX accused respondents herein faced a session's trial on charges under Ss. 148, 302/149, 302/34 and 323/34 I. P. C. The allegations made against them were that while Parimal Ghosh, Krishna Ghosh, Biren Pramanick, Gopinath Ghosh and Nitya Ghosh after watching their cultivation on a piece of Char land were taking rest in a boat anchored in river Bhaghirathi close to village Malinipara, P S. Beldanga, Districst-Murshidabad, the respondents formed themselves into an unlawful assembly with the common object of making murderous assault on the aforesaid persons, equipped themselves with deadly weapons locally known as Pattangi, Jabha etc and attacked the above named persons in the boat aforesaid soon after midnight between 24th and 25th April, 1980 Nitya Ghosh and Gopinath Ghosh succumbed to their injuries within a few hours of receiving them. After considering the evidence adduced, the learned Additional Sessions Judge 4the Court, Murshidabad, by his judgment dated 24. 8. 81 found the accused respondents guilty of the offences under Ss. 148 and 304 (Part II) read with S. 149 I. P. C. for killing Nitya Ghosh and again under S. 304 (Part II) read with S 1498 I. P. C. For killing Gopinath Ghosh. He, however, acquitted them of the charges under 302/149, 302/34 IPC and 323/34 IPC. The learned Judge fixed the next day, that is, 25. 8. 81 for hearing the accused in the matter of sentence as required under S. 235 (2) of the Cr. P (c) (hereinafter to be referred to as the Code ). By his order dated 25-8-81 the learned Judge released the accused respondent Krishna Ghosh on probation under S. 360 of the Code and proposed to release other accused on probation under S. 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act) subject to receipt of Probation Officer's report regarding them. ( 2 ) PARIMAL Ghosh the informant and P. W. 1 has filed Criminal Appeal No 352 of 1981 under S. 11 (2) of the Act challenging the propriety of the orders of the learned Additional Sessions judge. He has also filed two Revision applications under S. 397 read with S. 401 of the Code numbered as Criminal Revision Petitions 2177 and 2178 of 1981 questioning the propriety of the findings of the learned Additional Sessions Judge and the orders passed by him. He has also filed two Revision applications under S. 397 read with S. 401 of the Code numbered as Criminal Revision Petitions 2177 and 2178 of 1981 questioning the propriety of the findings of the learned Additional Sessions Judge and the orders passed by him. The appeal and the revsisional applications are taken up for analogous hearing as common questions of law and fact were canvassed. ( 3 ) THE first question which confronts us is whether or not a revision application lies when an order has been passed under S. 360 of the Code and S. 4 of the Act. The second question confronting us is if a revisional application does not lie, them who will file the appeal? More precisely, has the informant (de facto complainant) and right of an appeal under S. 11 of the Act? ( 4 ) BEFORE we proceed to answer the questions posed we should give an indication as to the line of arguments advanced by Mr. Bagcvhi, the learned advocate for the appellant / Petitioner. He reads out to us the judgment assailed and portions of evidence to contend that the time, place and circumstances and portions of evidence to contend that the time, place and circumstances of the occurrence clearly established planned and willful murders to attract S. 302 I. P. C. His further argument is that the accused respondents should properly have been convicted of offences under S. 302 read with S. 149 I. P. C. Mr. Bagchi contends that in any event the learned judge was wrong in finding the accused guilty of offences under S. 304 (Part II) read with S. 149-I P C. When he himself observed "from the nature of the instrument used by them and the vital parts of the bodily of Nitya Ghosh where they drove the instrument, it could be inferred that them had the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. " Mr. Bagchi argues that taking a view most favorable to the accused respondents they could not escape conviction for offences under S. 304 (Part 1) read with S 149 I P. C. Mr. " Mr. Bagchi argues that taking a view most favorable to the accused respondents they could not escape conviction for offences under S. 304 (Part 1) read with S 149 I P. C. Mr. Baghi proceeds on to argue that if the accused respondents were guilty of offences under S. 304 (Part I)I P C. They would be punishable with imprisonment for life; and in the event of such conviction the offenders could not be dealt with under S. 360 of the Code or S. 4 of the Act. Mr. Baghi's contention is that in the facts and circumstances of the present case particularly of two murders, the learned judge was totally wrong in resorting to the above noted provisions of the Code and Act. ( 5 ) WE are required to analyse the provisions of the Code and the Act on the subject under consideration as they are closely interwoven. It is common knowledge that appeal is a creature of statute. Appeals under the Code are no exception. In facts S. 372 of the Code provides "no appeal shall lie from any judgment or order of a Criminal Court, except as provided for by this Code, or by any other law for the time being in force". Section 374 (3) (c) of the code provides for an appeal from an order passed by a magistrate under S. 360 of the Code. While S. 11 of the Act provides for appeals against ordr4rs passed under Ss. 3 and 4 of the Act. Analysing the provisions of the Code, we find that a person convicted may appeal to different courts depending on the Court by which he has been convicted as provided in S. 374 of the Code. A perusal of S. 374 of the Code in isolation from other provisions may convey the impression the appeal will lie in all cases of conviction irrespective of sentence. But this impression wears off when we encounter a non-obstinate clause at the outset of S. 376 providing "notwithstanding anything contained in S. 374, there shall be no appeal by a convicted person in any of the following cases namely???. . ". ( 6 ) READING together S 374 with S. 376 clause (b) we reach the conclusion that a person convicted of an offence by a Court of Session and sentenced to more that three months imprisonment is entitled to file an appeal. . ". ( 6 ) READING together S 374 with S. 376 clause (b) we reach the conclusion that a person convicted of an offence by a Court of Session and sentenced to more that three months imprisonment is entitled to file an appeal. As regarded an appeal against an order of acquittal the right vests exclusively in the State as indicated by S. 378 of the Code subject to the reservation of limited rights in favour of the complainant under sub-s (4) when the case was instituted on complaint. Thus we find that subject to some restrictions on sentence a convict is always entitled to appeal against the order of conviction, whereas against an order of acquittal the State has a right of appeal subject to limited reservations made for complainants on whose complaint the case was instituted. It will be noted, when an order is passed under S. 360 of the Code the court passes the order consequent to conviction, but instead of the sentencing the convict passes an order as contemplated in the section. The right of appeal conferred under S. 376 is not available to such a convict dealt with under the section, as he has not been sentenced. For him special provision for appeal has been made in S. 374 (3) (c) of the Code. Almost similar provision has been made in S. 11 (2) of the Act, namely: -"courts competent to make order under the Act, appeal and revision and powers of Courts in appeals 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 S. 3 or S. 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. (2) Notwithstanding anything contained in the code, where an order under S. 3 or S. 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 S. 3 or S. 4 and passes against him any sentence of imprisonment with or without often from which no appeal lies or is preferred, them, notwithstanding anything contained in the Code or any other law, the Court to which appeals ordinarily lie from the sentence 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 Ss. 3 or 4 in respect of an offender, the Appellate Court or 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. " ( 7 ) FROM a perusal of sub-s. (1) Of S. 11 it is seen that order under S. 3 or 4 of the Act may be passed by (1) the trial court, (2) the Appellate Court, and (3) also by any court in revision. Obviously occasion for exercise of such power by the appellate court or the court of revision will sire only when the person convicted comes up before it. But for express provisions of S. 11 (1) of the Act and specific powers conferred, the appellate court or revision court could not exercise those powers, resorting simply to S. 386 and S. 401 of the Code. In short S. 386. of the Code does not enable any appellate court to exercise any power under the Act and his deficiency has been made good by S. 11 (1) of the Act. In short S. 386. of the Code does not enable any appellate court to exercise any power under the Act and his deficiency has been made good by S. 11 (1) of the Act. ( 8 ) SUB-SECTION (2) starts with a non-obstinate clause namely, "notwithstanding anything contained in the Code. " The implication of this clause is that although appeals against such orders have not been provided for in the Code even them because of the provisions of the sub-section an appeal shall lie; the court of appeal, however will be determined with reference to S. 374 of the Code. In the present case the order appealed against has been passed by an Additional Sessions judge. The conclusion is, therefore, inescapable that under S. 374 (2) of the Code read with S. 11 (2) of the Act an appeal shall lie to the High Court. Sub-section (4) of S. 11 indicates that the appellate Court or the High Court in exercise of powers of revision may set aside any order passed under Ss. 3 and 4 of the Act and in lieu thereof pass sentence on such offenders according to law. ( 9 ) NOW the question is whether a revisional application lies in the present case against the orders of the Additional Sessions Judge Relying on the decision in the case of Aurobindo Mohan Sinha v Prohlad Chandrasamanta reported in Calcutta page 437 Mr. Dilip Dutt, the learned advocate for the accused respondent, contends that in view of clear provision for appeal under S. 11 of the Act, revision applications under the Coder are misconceived. No one will dispute the correctness of the above proposition which is founded on S. 401 (4) of the Code laying down that where an appeal lies no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. We have thus no difficulty in reaching the conclusion that an order having been passed by an Additional Sessions Judge and an appeal having been provided by S. 11 (2) of the Act; the said appeal is ordinarily entertainable by the High Court. But the snag lies here in the fact hat no order under S. 4 has actually been passed by the learned Additional Sessions Judge, while S. 11 (2) of the Act; he said appeal is ordinarily entertainingly by the High Court. But the snag lies here in the fact hat no order under S. 4 has actually been passed by the learned Additional Sessions Judge, while S. 11 (2) of the Act; he said appeal is ordinarily entertainingly by the High Court. But the snag lies here in the fact that no order under S. 4 have actually been passed by the learned Additional Sessions Judge, while S. 11 (2) of the Act contemplate appeal against an order actually passed. The other difficulty is that an order passed by the Additional sessions Judge under S. 360 of the Code, has not been made appealable by S. 374 (3) (c) of the Code which is restricted to appeals in respect of orders of a Magistrate only. ( 10 ) WE now proceed to consider if s de facto complainant has a right of appeal under the Act, Mr. Baghi contends that a complainant can file an appeal under the Act and in support of his contention he relies on the on the decision in Baidyanath Prasad v. Awadhesh Singh and ors repotted in AIR 1964 Patna 358. In the said case a complainant filed an appeal in the court of Sessions judge, against an order passed by a Magistrate a under S. 3 of the Act. The Additional Sessions Judge hearing the appeal dismissed the appeal dismissed the appeal on the found that the complainant had no Locus Standi to file the appeal. The High Court, however, held "in any view of the a matter, since the language of sub-s (2) of S. 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 he extort 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 S. 3 or 4 of the Act is conferred upon the complainant as well". The Patna High Court arrived at the above conclusion by recalling that a complainant can file a petition in revision against a rider of acquittal and therefore had great interest in conviction and sentence. Mr. The Patna High Court arrived at the above conclusion by recalling that a complainant can file a petition in revision against a rider of acquittal and therefore had great interest in conviction and sentence. Mr. Bagchi points out that for similar reasons the Orissa High Court in the single Judge decision in Rajkishore Jana v. Raja alias Kalasi Sahoo reported in AIR 1971 Orissa 193 held that even a private complainant in cases of State prosecution can appeal to session's court under S 11 of the Act. Orissa High Court, however, dismissed the revision applicacation filed by the complainant as he had a right of appeal under S. 11 (2) of the Act against the impugned order passed by a Magistrate. We will simply note that the Orissa High Court's observations with regard to competence of a complainant to file an appeal under S. 11 (2) of the Act were made in a decision on a revisional application not in an appeal filed by the de facto complainant. Mr. Bagchi next relies upon the decision of the Darnatake High Court in State of Karnataka v. Chandrappa, reported in 1981 Cr. L. J. 1949. Relying on certain observations made in this case Mr. Bagchi contends that a private complainant can file an appeal under S. 11 (2) of the Act with respect, we are unable to accept the above contention, because, the High Court construed the order impugned before it as an order imposing sentence an the appeal as one filed under S. 377 of the Code for enhancement of sentence. It did not therefore, fall for decision of the Karnataka High Court if a complainant as DISTINGUISHED from the State could file an appeal under S. 11 (2) of the Act. ( 11 ) SO far we-have got only the Patna High Court decision cited as authority for the proposition that even private complainants can file appeal under S. 11 (2) of the Code. ( 12 ) WITH great respected we are unable to endorse the reasons given by the Patna High Court in support of its conclusion, when a complainant files a revision application he cannot expect complete reversal of the judgment in the shape of conversion of an order of acquittal into one of conviction. The scope of revision and appeal being thus different, drawing of an analogy between the two seems to us to be inappropriate. The scope of revision and appeal being thus different, drawing of an analogy between the two seems to us to be inappropriate. We have other reasons to differ also. The Code has given the complainant right to apply in revision and in a small category of cases right of appeal against an order of acquittal, but he has not been given any right to air his grievances in the matter of sentence. In the matter of sentence unlike S. 234, S. 235 (2) of the Code require the court to hear the accused only although the trial might have originated in a petition of complaint. Denial of the right of hearing to the complainant in the matter of sentence has its obvious justification. If the Complainant had been given a right of hearing on sentence he would be praying for imposition of the maximum sentence motivated by a feeling of revenge and retribution. So the matter has been left to the discretion of the Court, considering the age, circumstances, nature of offence, the prospect of reform and rehabilitation of the accused, the court is expected to impose a proper sentence within the limits s of law and in the larger background of social security. If the accused feels aggrieved with the conviction or sentence, he may file an appeal under S. 374 or 375 of the Code and in the appeal invite the Court to exercise powers under S. 11 (2) of the Act. If the sentence is REFERRED TO inadequate, the State may file an appeal under S. 377 of the Code. If no sentence has been imposed and the accused has been dealt with under the provisions of the Act, in the broader interests of the society, the State in our opinion is competent to file an appeal. The significant fact is that the Code has omitted to give the complainant any say in the matter of sentence. We thus reach the conclusion that against an order passed under Ss. 3 and 4 of the Act, the complainant has no right of appeal. Appeal No. 352 of 1981 under S. 11 (2) of the Act now under our consideration having been filed by the complainant is in our opinion incompetent and the memo is liable to be rejected. We thus reach the conclusion that against an order passed under Ss. 3 and 4 of the Act, the complainant has no right of appeal. Appeal No. 352 of 1981 under S. 11 (2) of the Act now under our consideration having been filed by the complainant is in our opinion incompetent and the memo is liable to be rejected. ( 13 ) THE de facto complainant's appeal being rejected we take up for consideration his applications under S. 401 Cr. P. C not with a view to consider the order of the Additional sessions Judge passed on 25. 7. 81 which could have been a subject matter of appeal if it did not suffer from deficiencies already noted. We take up for consideration the order dated 24. 8. 81 convicting the respondents under S. 304 (Part II) read with S. 149 I. P. C to examine its legality and propriety. We have earlier summarized the arguments of Mr. Bagchi to the effect that the conviction should have been for graver offences with heavier punishment under S. 302 read with 149 I. P. C. or under S. 304 Part I read with 149 I. P. C. From a consideration of the materials on record which we called for and examined, we had that Mr. Bagchi's arguments have substance. The learned Judge does not appear a to heaved given sufficient attention to the member of persons making the attack at that hour of night in the boat on the deceased with the instruments used and the fatal consequences following to determine if causing of death was preplanned an if the manner of attack was indicative of a keen desire to execute the plan, apart from the parts of the body whereon the injuries were effected. We are thus satisfied that there has been a miscarriage of justice in this case necessitating a retrial. ( 14 ) ALLOWING the revisional application on contest we set aside both the orders dated 24-8-81 and 25-8-81 passed by the learned. Additional Sessions Judge and directs that the respondents be tried afresh on the charges already framed a the evidence already of record. ( 15 ) THE learned Judge holding the retrial will consider carefully whether the evidence adduced justifies conviction of the accused under S. 304 (part II) read with S. 149 I P C. or they should be convicted for graver offences. ( 15 ) THE learned Judge holding the retrial will consider carefully whether the evidence adduced justifies conviction of the accused under S. 304 (part II) read with S. 149 I P C. or they should be convicted for graver offences. He will not, in any way be influenced by observations of ours on this point. If he arrives at the conclusion that the accused are liable to be convicted under S. 304 (Part II) read with S. 149 and are entitled to the benefit of provisions of the Act he will hear the accused in the matter of sentence under S 235 (2) of the Code afresh and will prepare separate notes in respect of each accused on the point of age, character, antecedents, physical or mental condition of the offender and the extenuating circumstances under which the offence was committed apart from their marital status and domestic obligations. After taking into consideration the above points the learned Judge will decide if the accused will be punished with sentence or will to dealt with under the provisions of the Act or under S. 360 of the Code. In this connection the learned Judge will bear in mind the provisions of S. 360 (10) of the Code and S 19 of the Act and decide if there is any scope for dealing with the accused under the provisions of the Code. Jitendra Nath Chaudhuri, J. I agree appeal not maintainable, impugned orders set aside, retrial ordered and direction given in revision.