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2013 DIGILAW 760 (RAJ)

Bal Singh v. State of Rajasthan

2013-04-16

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision has been preferred by the petitioner challenging the order dated 27.8.2008 passed by the learned Addl. Sessions Judge, Bali in appeal whereby the appeal filed by the State of Rajasthan was allowed and the judgment dated 18.3.2004 passed by the learned Judicial Magistrate, Desuri in Criminal Original Case No. 184/1984 has been set aside to the extent of the sentence awardable to the petitioner. 2. The learned trial Judge tried the petitioner for the offence under Section 4/9 of the Opium Act and after convicting him released him on probation under Section 4 of the Probation of Offenders Act. The State challenged the said order by preferring a revision in the Court of Addl. Sessions Judge, Bali. The Revisional Court at the time of final hearing of the revision, by order dated 27.8.2008, treated the revision to be an appeal and quashed the order passed by the learned Magistrate to the extent, probation was granted to the petitioner. 3. Learned counsel for the petitioner submits that the revision filed by the State was not maintainable. Thus, the learned Addl. Sessions Judge, Bali was not at all justified in interfering with the sentence awarded by the learned Judicial Magistrate, Desuri. He thus prays that the order dated 27.8.2008 deserves to be quashed. 4. Learned P.P., on the other hand, submits that the order which has been passed by the learned Addl. Sessions Judge was passed after treating the revision to be an appeal under Section 11 of the Probation of Offenders Act. She thus submits that under the said provision of law, the Appellate Court is very much entitled even to reverse the acquittal of the accused and to pass an appropriate order regarding sentence. She submits that the order passed by the learned Addl. Sessions Judge does not call for any interference by this Court. 5. The principal bone of contention of the learned counsel for the petitioner is that the learned Addl. Sessions Judge, Bali was not at all empowered to entertain the appeal because the amendment which has been brought about in Section 377(1) Cr.P.C. was made effective on 23.6.2006 and thus, the learned Addl. Sessions Judge was not empowered to treat the revision as an appeal. Heard and considered the arguments advanced at the bar. Perused the record as well as the orders impugned. Sessions Judge was not empowered to treat the revision as an appeal. Heard and considered the arguments advanced at the bar. Perused the record as well as the orders impugned. It is manifest that the argument advanced by the learned counsel for the petitioner is fallacious. No doubt the State challenged the judgment passed by the learned Magistrate by filing a revision. The learned Addl. Sessions Judge, Bali treated the revision filed by the State to be an appeal by a separate order dated 27.8.2008. The order specifically refers to the fact that the revision is being treated as an appeal under Section 11(2) of the Probation of Offenders Act.Section 11(2) is reproduced hereunder:- "(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." 7. From a bare reading of the above provision, it is evident that the court of appeal is authorised to pass an appropriate order on the question of the sentence award able to the accused. The appeal under the said provision challenging the order passed by the learned Magistrate could be filed before the Sessions Judge concerned. Therefore, the learned Addl. Sessions Judge, Bali was very much empowered to entertain the appeal against the judgment of learned Judicial Magistrate, Desuri. It may also be mentioned that the order dated 27.8.2008 whereby the revision was treated as an appeal was not challenged by the accused. Thus, in the opinion of this Court, the revision filed by the petitioner is meritless and deserves to be dismissed.8. Accordingly, the revision is dismissed. The judgment passed by the learned Addl. Sessions Judge is upheld. The petitioner shall appear before the learned Judicial Magistrate, Desuri on or before 8.7.2013. Thereafter the learned Judicial Magistrate shall provide an opportunity of hearing to the parties and shall pass appropriate order on question of sentence. The matter shall be decided by the learned Judicial Magistrate, Desuri within a period of twoRevision dismissed. *******