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RAKESH KAINTHLA, J. –

The petitioners have filed the present petition for quashing of the judgment dated 1.10.2024, passed by learned Additional Sessions Judge, Kinnaur at Rampur Bushehr (learned Appellate Court), vide which the appeal filed by the petitioners (appellants before the learned Appellate Court) was held to be not maintainable. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the police filed a charge-sheet before the learned Additional Chief Judicial Magistrate, Rampur Bushehr, District Shimla, H.P. (learned Trial Court) for the commission of offences punishable under Sections 147, 451, 323, 325 and 506 read with Section 149 of the Indian Penal Code (IPC) against the accused (respondents No.2 to 5). Learned Trial Court convicted the accused of the commission of offences punishable under Sections 147, 451, 323, 325, 506 read with Section 149 of IPC and ordered their release under Section 4 of the Probation of Offenders Act for three years subject to furnishing of personal and surety bonds for Rs.50,000/- for maintaining the peace and good behaviour. They were also directed to pay compensation of Rs.5,000/- each to injured Krishna and Nirmla.

3. The petitioners/appellants filed an appeal under Section 11 of the Probation of Offenders Act against the order passed by the learned Trial Court. Learned Appellate Court held that the appellants were the complainants and they could file an appeal under the proviso to Section 372 of Cr.P.C. against the judgment of conviction for a lesser offence, but not for inadequacy of the offence. There is no provision for filing an appeal against the order releasing a person on probation. Section 11(2) of the Probation of Offenders Act empowers a victim to file an appeal in a manner in which an appeal ordinarily lies from the sentence. Since no appeal lies against the sentence, therefore, the appeal was not maintainable.

4. Being aggrieved by the judgment passed by the learned Appellate Court, the petitioners have filed the present petition for setting aside the judgment.

5. I have heard Mr. Hamender Singh Chandel, learned counsel for the petitioners, Mr. Prashant Sen, learned Deputy Advocate General, for respondent No.1-State and Mr. B.S. Chauhan, learned Senior Counsel, assisted by Ms. Aditi Rana, learned counsel for respondents No. 2 to 5.

6. Mr. Hamender Singh Chandel, learned counsel for the petitioners, submitted that an appeal lies against an order passed under Sections 3 and 4 of the Probation of Offenders Act and the learned Appellate Court erred in holding otherwise. Therefore, he prayed that the present petition be allowed and the judgment passed by the learned Appellate Court be set aside.

7. Mr. Prashant Sen, learned Deputy Advocate General, for respondent No.1-State, supported the submissions of Mr. Hamender Singh Chandel, learned counsel for the petitioners and submitted that the learned Appellate Court erred in holding that the appeal was not maintainable.

8. Mr. B.S. Chauhan, learned Senior Counsel for respondents No.2 to 5, submitted that the learned Trial Court had rightly held that the appeal was not maintainable under the proviso to Section 372 of Cr.P.C. and the appeal under Section 11(4) was to be filed in a manner provided under law. Since there is no provision of appeal under the proviso to Section 372 of Cr.P.C. against inadequacy of the sentence, therefore learned Appellate Court had rightly held the appeal to be nonmaintainable. He prayed that the present appeal be dismissed.

9. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the charge sheet has been filed before the learned Trial Court and the petitioners have a right to approach the learned Trial Court for seeking their discharge. This Court should not exercise its inherent jurisdiction in the present case. Hence, he prayed that the present petition be dismissed.

10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

11. It was laid down by the Hon’ble Supreme Court in Prithvi Raj v. Kamlesh Kumar, (2004) 8 SCC 303, that a de facto complainant can prefer an appeal against the order passed by the learned Trial Court under Sections 3 and 4 of the Probation of Offenders Act. It was observed:-

“7. The first question is whether a de facto complainant can prefer an appeal under sub-section (2) of Section 11. The provision only speaks of the forum in which such an appeal is to be made. It does not specifically provide as to who can prefer an appeal. There is a divergence in view as regards the maintainability of the appeal by the complainant. The Orissa and Patna High Courts have held that it was maintainable at the instance of the de facto complainant. (See Rajkishore Jena v. Raja [AIR 1971 Ori 193] and Baidyanath Prasad v. Awadhesh Singh [AIR 1964 Pat 358: (1964) 2 Cri LJ 176].) It was held by the Patna High Court that the complainant can file revision against the order of acquittal under the Code of Criminal Procedure, 1973 (in short “the Code”). Consequently, it was observed that the complainant has an interest in the conviction and sentence. The Orissa High Court dismissed the revision petition filed by the complainant, holding that it had the right of appeal to the Sessions Court under Section 11(2) of the Act. The Calcutta High Court in Parmal Ghosh v. State of High Court of H.P. W.B. [1984 Cri LJ 1302 : (1984) 1 CHN 329 (Cal)] has taken a different view and held that the State has a right to be heard at the time of imposition of sentence, but not the complainant. The role of the State Government is to ensure that the accused person is punished for the offence committed and an adequate sentence is imposed. If the State is of the view that the sentence is inadequate, it can move the higher court as provided in the Code.

8. The language of Section 11(2) is unrestricted as to the person who can prefer an appeal. Therefore, there is no justification for confining the right only to the convicted person or even to the State. The issue can be looked at from another angle. Under the revisional jurisdiction, the High Court, in an appropriate case, can direct a retrial, though it cannot convert the order of acquittal to an order of conviction. When an application in revision is allowed by the court against the order of acquittal at the instance of the private party, the High Court is obliged in law to remand the appeal. But in all other circumstances, the High Court is competent to pass any order that may be passed by a court of appeal.

9. It is to be noted that sub-section (2) of Section 11 commences with the expression “notwithstanding anything contained in the Code” and provides in unqualified terms that “an appeal shall lie to the court”. Under the Code, the appeal proceedings are concerned only with orders of acquittal or conviction. While the provisions in Section 11(2) of the Act deal with something distinct from the fact of conviction or acquittal. The appeal under Section 11(2) of the Act is not against acquittal or conviction but the propriety of the order passed under Section 3 or Section 4 of the Act. The intention of the legislature apparently is to confer such a right both on the prosecution and the accused. The interest of the complainant is not totally lost sight of by the legislature. It is statutorily provided that a revision application can be filed by the complainant against an order of acquittal. That being so, the complainant can prefer an appeal under Section 11(2) of the Act questioning the propriety of the order passed under Section 3 or 4 of the Act. The view expressed by the Patna and the Orissa High Courts is the correct view, and that of the Calcutta High Court is not correct. The said view is nullified.

10. That brings us to the pivotal issue as to the scope and limit of interference in an appeal under Section 11(2) of the Act. Section 11(4) makes the position clear that only the propriety of the order passed under Section 3 or 4 in respect of offenders can be dealt with by the appellate court or the High Court, as the case may be. The appellate court or the High Court exercising revisional power may set aside such an order, meaning passed either under Section 3 or Section 4 and in lieu thereof pass sentence on such offender. Obviously, the sentence can be imposed only in respect of the offence relating to which the order under Section 3 or Section 4 of the Act has been passed. There is no scope for altering the nature of the offence and for directing that the accused shall be convicted for another offence. The High Court was, therefore, not justified in directing that the conviction of the appellants shall be under Section 326 IPC. We find that the trial court had given adequate reasons for passing the order under Section 4 of the Act. That being so, the High Court was not justified in interfering with the benefit extended by the trial court under the Act.

12. Unfortunately, this judgment was not brought to the notice of the learned Appellate Court and the learned Appellate Court held that the appeal is not maintainable.

13. Learned Appellate Court held that the appeal has to be filed in a manner provided by the law, and since the proviso to Section 372 of Cr.P.C. did not enable the complainant to file an appeal against the inadequacy of the sentence, therefore, the appeal does not lie under Section 11 of the Probation of Offenders Act. Mr. B.S. Chauhan, learned Senior Counsel, also adopted the reasoning of the learned Appellate Court. This reasoning cannot be accepted. Section 11 (2) contains a non obstante clause and will prevail over the provisions of the CrPC. Therefore, it is impermissible to import the provisions of appeal contained in the CrPC to the Probation of Offenders Act.

14. Learned Appellate Court had dismissed the appeal on the ground of maintainability alone. Therefore, the matter is remanded to the learned Appellate Court with the direction to rehear the matter on merits.

15. The parties, through their respective counsel are directed to appear before the learned Appellate Court on 16th September, 2025.

16. The present petition stands disposed of, and so are the pending miscellaneous applications, if any.

Order accordingly.

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