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2019 DIGILAW 839 (HP)

Ram Rattan @ Rabbal v. State of H. P.

2019-07-02

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur J. 1. In present case, on a complaint of petitioner, respondent No. 2 was convicted by learned Additional Chief Judicial Magistrate and sentenced to undergo simple imprisonment for different terms under Sections 341, 323 and 325 IPC. 2. Assailing the judgment passed by the trial Court, complainant/petitioner had filed an appeal in the Sessions Court for enhancement of sentence, whereas respondent No. 2 had assailed the conviction and sentence imposed upon him by filing a separate appeal. Both the appeals have been partly allowed by learned Sessions Judge by a common judgment dated 18.7.2018 and instead of substantial sentence, respondent has been released on probation by extending the benefit of Section 4 of the Probation of Offenders Act, 1958 (herein after referred to as the "Act" in short) and has been directed to pay compensation to injured/complainant amounting to Rs. 25,000/-. This judgment is under challenge in present Revision Petition. 3. On registration of Criminal Revision, after condonation of delay in filing the same, respondents had raised the question of maintainability of composite Revision Petition, assailing the impugned common judgment passed by learned Sessions Judge in two appeals on two grounds i.e. (a) that composite petition/appeal against a common judgment passed in two appeals, is not maintainable and for agitating the cause of each appeal, a separate Revision Petition or Appeal as the case may be, is required to be preferred and (b) that there is a complete scheme provided under the Act to assail the extension of benefits thereof by filing an appeal, therefore, Revision Petition under Section 397 Cr.P.C. is not maintainable against the extension of benefit of the Act. 4. So far as ground (a) is concerned, it lost its relevance, when on 14.3.2019, it was stated at bar on behalf of complainant/petitioner that present Revision Petition is limited to challenge to extension of benefit of the Act to respondent No. 2 and no other issue shall be urged. 5. Now only issue remains to be adjudicated is that as to whether against the extension of benefit of the Act by the First Appellate Court, a Revision under Section 397 Cr.P.C. shall be maintainable or not. 6. 5. Now only issue remains to be adjudicated is that as to whether against the extension of benefit of the Act by the First Appellate Court, a Revision under Section 397 Cr.P.C. shall be maintainable or not. 6. Section 11 of the Act provides complete scheme with respect to power of the Court to extend the benefit of the Act to accused, filing Appeal and Revision and powers of Court in such Appeal and Revision. Section 11(1) of the Act empowers trial Court, Appellate Court and Revisional Court to extend the benefit of the Act to an accused in a trial, appeal or in revision. Remedy of Appeal and Revision is provided in Sections 11(2) and 11(3) whereas Section 11(4) explains the power of the Appellate Court as well as the Revisional Court. 7. Section 11(2) of the Act provides the remedy to a person aggrieved by an order passed under Sections 3 or 4 of the Act by any Court, other than High Court, trying the offender. As per this sub section notwithstanding anything contained in the Cr.P.C. an appeal against such order passed under the Act shall lie to the Court to which appeal ordinarily lie from the sentence of the former Court. 8. Section 11(3) of the Act deals with situation when a Court declines to deal with an accused under Sections 3 and 4 of the Act, who is under 21 years of age and has been found guilty for commission of offence, and passes any sentence of imprisonment with or without fine and from which no appeal lies or is preferred. In such a situation this Section empowers the Appellate Court, the Court to which appeals ordinarily lie from sentence passed, i.e. the Sessions Court or the High Court, as the case may be, to exercise its revisional jurisdiction, either on its own motion or on an application made to it by the convicted person or the Probation Officer in the cases covered by this sub section, to call for and examine the record of the case and pass such order thereon as it thinks fit. 9. 9. Section 11(4) of the Act deals with the power of the Appellate Court as well as of the Revisional Court by providing therein that the Appellate Court or the High Court in exercise of its power of revision may set aside the order extending the benefit of the Act under Section 3 or Section 4 of the Act and to pass sentence on such offender, in lieu thereof, according to law. 10. In case order under Sections 3 or 4 of the Act is made by the Magistrate, normally the Appellate Court would be the Sessions Court and if such order is made in Sessions Trial, the Appellate Court would be High Court. In case such order is made by the Sessions Court in appeal for the first time, where Magistrate has not extended this benefit during trial or has acquitted the accused, the appellate Court under Section 11(2) of the Act would be High Court. In case such order, passed by Magistrate, is assailed in Sessions Court in appeal preferred under Section 11(2) of the Act, then against the order passed by Sessions Court in appeal, in case of dismissal of appeal Revision would lie in the High Court as there is no provision of second appeal by the same person except as provided under Section 393 Cr.P.C., and in case of acceptance of appeal, opposite party would be entitled for appeal. After passing of order under Section 3 or Section 4 of the Act by the Magistrate, Revision would be maintainable only if case is covered under Section 11(3) of the Act, otherwise the only available remedy is filing of appeal under Section 11(2) of the Act in the Appellate Court. The same principle will be applicable in case of passing of such order by Sessions Court. The "Appellate Court or the High Court in exercise of its power of revision" referred in Section 11(4) of the Act is to be read in this context. 11. Section 11(2) of the Act provides that appeal shall lie against the order made by any Court trying the offender. The "Appellate Court or the High Court in exercise of its power of revision" referred in Section 11(4) of the Act is to be read in this context. 11. Section 11(2) of the Act provides that appeal shall lie against the order made by any Court trying the offender. Considering pronouncements of the Apex Court in Kashmira Singh vs. State of Punjab, (1977) 4 SCC 291 , Babu Singh and Others vs. State of U.P. (1978) 1 SCC 579 , Shailendra Kumar vs. State of Delhi, (2004) 4 SCC 178 and Smt. Akhtari Bi vs. State of M.P. (2001) AIR SC 1528, it is clear that on filing appeal which is a statutory right, the trial Court's verdict does not attain finality during pendency of the appeal, trial is deemed to be continuing. Therefore, the words used in Section 11(2) of the Act "any Court trying the offender" shall include the Appellate Court, dealing with the appeal preferred against the judgment of conviction or acquittal passed by the trial Court as the said Court is also "a Court trying the offender" and therefore, in case where the benefit of Probation of Offenders Act is extended by the Appellate Court to an convict in an appeal preferred by him, the appeal thereto, on behalf of State or convict shall lie to the High Court which is next Court in hierocracy to which the appeal, against the sentence imposed in a judgment passed in a trial conducted by that Court, ordinarily lies. 12. In present case benefit of Probation of Offenders Act has been extended by learned Sessions Judge and appeal from the sentence of the said Court ordinary lies to the High Court. Therefore, as per provisions of Section 11(2) of the Act, where benefit of Sections 3 and/or 4 of the Act has been extended by learned Sessions Judge for the first time in appeal preferred by convict, an appeal by State or complainant shall be maintainable against extension of such benefit by learned Sessions Judge. 13. Section 401 (4) of the Cr.P.C. provides that where under Cr.P.C. an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 13. Section 401 (4) of the Cr.P.C. provides that where under Cr.P.C. an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Probation of Offenders Act is a Special Act and where the specific provisions are available under the Special Act, then the provisions of Cr.P.C. are not to be followed, but the provisions of the Special Act are to be followed. However, no corresponding provision to Section 401 Cr.P.C. is there in the Probation of Offenders Act, therefore, for procedural purpose, principles contained in provisions of Section 401 shall be applicable to the proceedings under the Probation of Offenders Act. Therefore, for provisions of Section 401(4) Cr.P.C. in case where the appeal is provided and maintainable under Section 11(2) of the Act, the revision shall not be entertained at the instance of party, who could have preferred appeal. Therefore, present Revision Petition is not maintainable against the extension of benefit under Sections 3 and/or 4 of the Probation of Offenders Act by learned Sessions Judge for the first time in appeal. 14. At this stage, provision of Section 401 (5) of Cr.P.C. is also relevant, which provides that where an appeal lies, but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 15. In present case, learned counsel for the petitioner has preferred the Revision Petition by considering that any Court trying the offender means only the trial Court not the Appellate Court and as the benefit of the Act was extended by the Appellate Court, he had interpreted Section 11(4) of the Act a Section entitling the petitioner to prefer a Revision Petition against the impugned judgment. In view of discussion made herein above, his belief has been found to be erroneous, but not malafide. In view of discussion made herein above, his belief has been found to be erroneous, but not malafide. For Revision Petition being preferred under the bonafide wrong belief and also for the ground raised in the appeal, it would be in the interest of justice to treat the present Revision Petition as a petition of appeal and to deal with it accordingly. 16. Accordingly, Registry is directed to close the Revision Petition filed by the petitioner and convert and register it into an appeal preferred under Section 11(2) of the Probation of Offenders Act and thereafter, list it for admission after carrying out necessary correction in record. 17. Petitioner is directed to file amended memo of parties with appropriate cause title of appeal reflecting the relevant provisions of law. 18. List after three weeks.