JUDGMENT
V.S. Dave, J.
1. This revision petition is. directed against the judgment of learned Additional Sessions Judge No. 2, Bharatpur dated 4.9.1990, who maintained the conviction under Section 323 IPC and extended the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as, “the Act, 1958”) to the petitioners.
2. Briefly stating the facts of the case are that a report was lodged at Police Station, Bhusavar on 10.1.74 alleging that accused petitioners alongwith others gave beating to Shiv Dutt. A case under Section 307 IPC was registered and investigation commenced. During the course of investigation complaint also filed a complaint on 7.5.75 on which a report was sought for from the police station as as FIR had already been lodged and matter was investigated. The police, on 13.8.75, submitted a charge-sheet, which came up for consideration before the learned Magistrate on 5.5.76. He took cognizance of the offence under Section 147/323 IPC against as many as six accused persons including the two petitioners. During the course of trial, prosecution examined as many as five witnesses in suport of its case. Accused examined six witnesses in his defence. It is pertinent to mention here that during the course of trial, one accused Shyam Lal died hence, the proceedings were droped against him. A compromise was entered into between the complainant and accused Charan Lal and as such accused Charan lal was also acquitted in terms of compromise. Thus, the case proceeded only against four accused persons. The learned Magistrate held Jagdish, Ramnath, Kedar and Suresh guilty of offence under Section 147 and 323 IPC and gave them the benefit of Section 4 of theAct, 1958. Against this judgment, an appeal was preferred before the learned Sessions Judge, Bharatpur, which was transferred to the Court of Addl. Sessions Judge No. 2. The learned Additional Sessions Judge held that the offence is not established under Section 147 IPC. He, however, maintained the conviction of petitioners Jagdish and Suresh under Section 323 IPC only & maintained the order of granting benefit of Section 4 olf the Act, 1958. It is against this judgment that the present revision petition has been filed.
3. On behalf of the State, a point has been agitated that no appeal was maintainable because of Section 376 Cr.P.C., and, therefore, this revision too is not maintainable. The objection was that no appeal has been provided in the petty cases and the proviso also states that appeal may be brought against any of the sentence as mentioned in Clause (a) to (b) of Sub-section (1), if any, however, punishment is combined with the same but again exception has been carved out by the legislature, such sentence shall not be appealable merely on the ground that the person convicted is to furnish security to keep peace or that a direction of imprisonment in default of payment of fine is included in the sentence or that more than one sentence is passed in the case, if the total fine imposed, does not exceed the amount hereinbefore specified in respect of the case. In other words, the submission is that since the accused has been ordered to furnish security to keep peace and be of good behaviour under Section 4 of the Probation of Offenders Act, no appeal would lie under Section 376 Cr. P.C. It is submitted that right of appeal as provided under Section 11 of the Probation of Offenders Act, is also not available to the accused because Section 374 Cr.P.C. is not applicable and if no apeal was maintainable, the order of learned Additional Sessions Judge should be treated as an order in revision and second revision is not permissible.
4. Replying to the preliminary objection, Mr. Surana has submitted that appeal is against an order of conviction under Section 374 Cr.P.C. an when the exceptions have been made & in Section 376 Cr.P.C. they are in respect of the sentences which classify the cases as petty cases. His submission is that benefit of provisions of Probation of Offenders Act cannot be equated with the provisions of Section 360, Cr.P.C., and, therefore, an appeal was maintainable.
5. Mr. D.G. Chaturvedi, appearing at the instance of the Court for assisting on the point, submits that appeal was competent for various reasons. His submission is that under sub-section (3) of Section 374 Cr.P.C., a right of appeal has been given to a person in respect of whom an order has been made or sentence has been made or sentence has been passed under Section 360 Cr.P.C. by any Magistrate. Thus, when the Court has made an order and gives the benefit under the Act, 1958, the appea is provided. Appeal is also provided in cases where if the bond for keeping peace violated and sentence is passed against an accused. His submission is that the questior of passing the sentence does not arise in a case where benefit of provisions of the Act, 1958 is given. My attention is drawn towards the phrasology used in Section 4 as well as Section 360 Cr.P.C. His submissions is that under Section 4 of the Act, 1958 the words “Instead of sentencing him at once to any punishment” are of great importance in as much as it rules out the stage of even hearing the arguments on the quantum of sentence as contemplated by Section 235(2) Cr.P.C. Similarly, under the provisions of Section 360 Cr.P.C., similar words have been repeated i.e. “instead of sentencing him at once to any punishment”. Attention has been drawn towards Section 234 Cr.P.C. also. It is submitted that in view of the fact a person convicted but not sentenced and given the benefit of the Act, 1958, does not known as to what sentence can be imposed in case of breach of the condition of the bond, the Legislature has provided an appeal and thus an apeal is competent against an order granting probation.
6. I have given my due considerations to the rival submissions and have gone through all the relevant provisions of the relevant laws.
7. In order to appreciate the arguments advanced by learned Counsel for the non-petitioners and Mr. Chaturvedi, it is essential to go through the scheme of the Code.
8. Appeals are provided under Chapter XIX of the Code of Criminal Procedure. Section 374 Cr. P.C. reads as under:
374 Appeals from conviction:(1) Any person convicted on a trial held by a High Court in its extraordinary orginal criminal jurisdiction may appeal to the supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial may appeal to the High Court.
(3) Save as otherwise provided in Sub-section (2) any person
(a) Convicted on a trial held by a Metropolitan Magistrate or Assistant Sesions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under Section 325, or
(c) in respect of whom an order has been made, or a sentence has been passed under Section 360 by any Magistrate, May appeal to the Court of Sessions.
5. Under Section 375 Cr.P.C., no appeal is provided in certain cases when accused pleads guilty. However, the appeal is permissible to the extent of legality of sentence. Section 376 Cr.P.C. reads as under:
376. No appeal in petty cases–Notwithstanding anything contained in Section 374, there shall be no apeal by a convicted person in any of the following cases, namely
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding on thousand rupees, or of both such imprisonment and fine;
(b) where a Court of Sessions or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees;
(d) where, in a case tried summarily, a Magistrate empowered to act under Section 260 passes only a sentence of fine not exceeding two hundred rupees:
Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground
(i) that the person convicted is ordered to furnish security to keep the peace;
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount here inbefore specified in respect of the case.
6. We are concerned here with the proviso and thereafter. In my opinion, the words used by legislation, “but such sentence shall not be appealable merely on the ground (i) that the person convicted is ordered to furnish security to keep the peace” refer to an order which is granted under the provisions of the Act, 1958 or Section 360 Cr.P.C. Under sub-clause (c) of Sub section (3) of Section 374 Cr.P.C., an asppeal is provided in respect of an order made or sentence passed under Section 360 Cr. P.C. by any Magistrate. Section 360 Cr.P.C. is paramateria with provisions of Sections 4 and 6 of the Act of 1958 and according to the Section 11 of the Act, 1958, it is provided that where an order under Section 3 of Section 4 is made by bcourt trying the offender, an appeal lies to the Court to which appeals ordinarily lie from the sentence of the former Court. Thus, an appeal is provided under Section 11(2) in a case where order has been passed under Section 4 of the Act, 1958, provided the appeal is provided against the conviction as the opening words used are ” any person convicted” which mean the appeal under Section 374 Cr.P.C. is provided against the order of conviction and question of sentence has only been mentioned in Section for the purpose of exclusion of appeal in certain cases. Apparently, it appear that there may be cases where there are two accused, one of them has been given a sentence of fine, which brings the case within the ambit of exceptions mentioned in Section 376 but another accused is given the benefit of the Act of 1958, then there may be a great anomoly since a person convicted and sentenced has not right of appeal but a person convicted and given benefit of the Act of 1958 will have a right of apeal. On a careful scrutiny of various other sections, this anomoty appears to be falicious. I may first observe that the words, “but such sentence shall not be appealable merely on the ground that the person convicted by the order to furnish security to keep peace”, do not refer to furnish bonds under the Act, 1958 or Section 360 Cr.P.C. They refer to an order regarding furnishing security passed under Section 106 Cr.P.C. in respect of the offences mentioned in Sub-section (2) thereof, Hence, it has no application. When the provision regarding conclusions of trials, are mentioned either in Chapter XVIII, XIX or XX before the sentences are passed, post recording of conviction, it is essential that the case has to be considered under Section 360 Cr.P.C. The reason thereof is that a combined reading of Sections 360 and 361 Cr.P.C. makes it obligatory on the Court to consider the question of giving benefit to the accused in case he is entitled to, else to assign reasons for not giving the same. It is because when the Legislature felt that courts are not invoking the provisions of the Probation of Offenders Act with reasonable liberality, the Legislature again enacted a complete Code as enshrined in Section 360 Cr.P.C. and it made obligatory upon the court to assign special reasons in case the benefit is not given as is contemplaed by Section 361 Cr. P.C. I have already said so in a catena of cases that it is essential for the courts to assign special reasons when an accused is entitled to the benefit of Section 360 Cr. P.C. or the Act of 1958 and the benefit is not given thereof. There is no question of passing any sentence simultaneously because an order under Section 361 Cr.P.C. is condition precedent as the language used by the Legislature is clear. In this respect, it will be purposeful to reproduce Sections 232 to 235 Cr.P.C., which are as under:
232. Acquittal- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
233. Entering upon defence- (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in suport thereof.
(2) If the accused puts in any written statement the Judge shall file It with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such, process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of lustlce.
234. Agruments-When the examination of the witnesses (If any) for the defence is complete, the presecutor shall sum up his case and the accused or his pleader shall be entitled to reply:
Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permlssionof the Judge, make, his submissions with regard to such point of law.
235. Judgment of acquittal or conviction- (i) After hearing arguments and points of law (if any) the Judge shall give a judgment In the case.
(2) If the accused Is convicted, the Judge shall, unless he proceeds In accordance with the provisions ofSectlon 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
7. A perusal of the aforesaid shows that there are four stages in a case tried ‘ by Court of Sessions after the prosecution evidence is over. The first stage is that before the accused is asked to produce the defence witnesses, it is the dutyof the Court to hear the prosecution and the defence and if there is no evidence to the effect that accused committed the offence an order of acuittal would be recorded. It is only thereafter under Section 233, Cr. P.C. when accused iks not acuitted under Section 232 Cr.P.C., he shall be asked to lead the defence and adduce the evidence in support thereof.
Referring to Willies Slaney v. State of Madhya Pradesh , Section 232 Cr.P.C. was interpreted by Punjab & Haryana High Court in Prem v. The State of Haryana 1975 Cr.L.J. 1420 where the Court held that till the stage of Section 232 is over, the accused is not even obliged to disclose the names of the defence witnesses. In that case a blankate order of production of witnesses in defence evicence was ordered which was held to be illegal.
8. After these two stages, comes the stage of argument. After the arguments are heard under Section 234, the Judge has to consider as to whether the case is one whidh could be dealt with under the provisions of Section 360 Cr.P.C. and in case he is of the opinion that it is not a fit case then alone he shall hear the accused on the question of sentence and then pass sentence on him according to law. It has been held time and again by their Lordships of the Supreme Court that Section 235(2) Cr. P.C. is a mile-stone in criminal law which gives a valuable right to accused to lead evfen evidence about the quantum of sentence or an order to be passed under Section 235(2) Cr. P.C. The words, “Unless he proceeds in accordance with the provisions of Section 360” makes it quite clear that hearing the accused on the question of sentence is a stage subsequent to the court’s coming to the conclusion apply. Similar is the position in case which are tried by a Magistrate in warrant cases. The words used are Section 248(2) Cr. P.C. are almost identical. Section 248(2) reads as under:
248. Acquittal or conviction
(2) Where, in any case under this Chapter the Magistrate finds the accused guilty, but do not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence pass sentence upon him according to law.
9. The words, “does not proceed in accordance with the provisions of Section 325 or Section 360”, are identical to the words used in Section 235(2) Cr. P.C. The word, “unless” used in Section 235 Cr.P.C. has the same import as the word, “but” in Section 248(2) Cr.P.C. Same is the case in cases of trial of summons cases by Magistrate. There too under Sub-section (2) of Section 255 Cr.P.C. when the Magistrate does not proceed in accordance with the provisions of Section 325 or Section 360 Cr.P.C. he can pass the sentence in accordance with law. The word “where” used in Sub-section (2) of Section 255 has again the same import as the words “unless” and “but”.
10. Thus, it may be in any Court, may be a ourt tring the cases as summons cases or as warrant cases or as session cases, the Legislature has placed a binding duty on the Court first to apply mind as to whether (a) the case of the accused is covered by either Section 360 Cr.P.C. or Sections 3, 4 or 6 of the Act,1958; (b) if the aforesaid provisions are applicable, whether the accused is entitled to the benefit thereof; and (c) in case he is not entitle to the benefit, the reasons are assigned as contemplated under Section 361 Cr.P.C. It is only thereafter the accused has to be heard on the question of sentence and the Court can record the sentence. This is further clear when the provisions of Section 360(9) Cr.P.C. are read, which is in respect of producing an offender before the Court in cases he violates, the bond executed under orders passed in the earlier Sub-sections of Section 360 Cr.P.C. When such an offender is brought before the Court, the Court has to hear the accused on the question of sentence and then pass the sentence. Sub-section (9) of Section 360 Cr.P.C. reads as under:
360 (9). An offender, when apprehended on any such Warrant, shall be brought forthwith before the Court Issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
11. The words, “when apprehenced…such court may, after hearing the case, pass sentence” land on the intention of the Legislature in mentioning the words in Chapters 18, 19 and 20, as aforesaid.
12. Similarly under Section 9 of the Act, 1958, procedure has been laid down in cases where the offender fails to obsedrve the conditions of the bond, Section 9 is reproduced as under:
9(1). if the Court which passes, an order under Section 4 In respect of an offender or any Court which could gave dealth with the offender In respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds, entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, Issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.”(2) The Court before which an offender Is so brought or appears may either remand him to custody until the case Is concluded or it may grant him bail, with or without surety, appear on the date which it may fix for hearing.
(3) if the Court, after hearing the case, si satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may fortwith:
(a) sentence him or the original offence, or
(b) where the failure is for the first time, then without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under Clause (b) of Sub-section (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence.
From a composit reading of all the Sub-sections, it is clear that when the accused is apprehended and brought before the Court for violation of the condition of the bond, he has to be heard and sentence is passed for the original offence. Thus, passing of the sentence in alternate to the order passed under the Act, 1958 or Section 360 Cr. P.C. is not contemplated by either of the statutes and if that is not so then the conviction is there but it is a sort of suspended order regarding sentence till the period for which the bonds are obtained for keeping peace and be of good behaviour. Once there is a breach of the conditions of the bonds, the case revives and the Court is entitled to pass sentences. Therefore, the case as such is not concluded prior to completion of the period mentioned in the bonds and that be so a sword of democlus lies a on the neck of accused till he successfully completes the conditions of the bond and, therefore, it cannot be said as to whether he would be sentenced for a lesser period so as to bring it within the defination of petty cases or a longer sentence, therefore, at that stage, it cannot be said whether provisions of Section 376 Cr.P.C. have at all any application to the case and it is therefore, in my opinion an appeal is maintainable under Section 374 Cr. P.C. it being an appeal against an order of conviction and, therefore, the appeal in this case was also maintainable and consequently this revision.
13. Now, coming to the merits of the case, the submission of the learned Counsel is that there is a fundamental question of limitation involved in this case in as much as cognizance has been taken for offence under Section 323 Cr.P.C. after two years and four months and neither any court has condoned the delay nor any reason has been assigned thereof. It is submitted that petitioner is a Government servant and the complainant is a retired Sub-Inspector of Police, who has taken undue advantage of his influence and has implicated the accused in the instant case. His submission is at as many as six persons were prosecuted for offence under Sections 147 and 323 IPC and he had been putting pressure for compromising the cases and some accused have been acuitted in terms of compromise and the others by the appellate Court. Bopth the petitioners, however, have been held guilty of substantive offence under Section 323 IPC despite the fact that Section 147 IPC was also made applicable and the accused have been acquitted thereof. The police after thorough investigation had given a final report in the case, which was not accepted and cognizance taken, as mentioned above, after two years and four months of the date of commission of the offence, which was patently illegal under Section 468 Cr.P.C. provides for bar to taking cognizance after lapse of the period of limitation. Section 323 IPC being punishable with maximum imprisonment for a period of one year, the limitation provided is only one year, which would run according to Section 469 Cr.P.C. from the date of the offence. The date of the offence in the instant case was 10.1.74. The criminal complaint was filed on 7.5.75 which itself was beyond the period of limitation. The police gave final report on 13.8.75, which too was beyond the period of limitation and the cognizance had been taken on 5.5.76, which date is hopelessly barred by period of limitation. Provisions have been made in the Code of Criminal Procedure under Section 470 for exclusion of time in certain cases and under Section 473 for extension of period of limitation in certain cases but the circumstances mentioned therein have neither been brought on record nor for such reasons the delay has been condoned in this case. Therefore, the very foundation of the case is based on lack of jurisdiction for want of limitation and consequently, the conviction cannot be sustained.
14. The result is that the revision is allowed. Judgments of the courts below are set aside. Accused Jagdish and Suresh are acquitted.