JUDGMENT
D.S. Tewatia, J.
1. This appeal preferred at the instance of State (Union Territory), Chandigarh, in the first instance, came up for motion hearing before me for dealing with the objection raised by the Registry to the entertainability of this appeal as also 27 such other appeals, as according to the office, the appeals lay to the Court of Session. I referred the office objection to be decided by a larger Bench, in view of the importance of the law point, that arose for consideration and that is how this appeal is before us.
2. Whether an appeal to the High Court by the State Government against an order passed by the trial Magistrate under Section 4, Probation of Offenders Act, 1958 (hereinafter referred to as the ‘Act’), is competent, is the legal question of some significance that falls for revolving in this appeal.
3. The facts relevant to the proposition aforementioned are not in dispute and can be stated thus. Respondents were held guilty under Section 120B/408/478, Penal Code, and were convicted accordingly by the Additional Chief Judicial Magistrate, Chandigarh, vide order dated 14th May. 1981. The learned Magistrate released them on probation of good conduct under Section 4(1) of the Act on their furnishing bonds in the sum of Rs. 2000/-with one surety in the like amount with a direction to appear and receive sentence when called upon during the period of one year and in the meantime to keep peace and be of good behaviour. The respondents were put under the supervision of Probation Officers, Chandigarh/Amritsar, during that one year in terms of Section 4(3) of the Act They were also directed to enter into a bond in the sum of Rs. 2000/- with one surety in the like amount to observe the conditions specified in the supervision order.
4. The appellant State (Union Territory, Chandigarh), has challenged this order through the present appeal.
5. The relevant provision providing for appeal and revision and the powers of such Courts is that of Section 11 and the portions relevant thereto, are in the following terms:
Section 11.
Courts competent to make order under the Act, appeal and revision and powers of Courts in appeal and revision:
(1) …
(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
(3)…
(4) When an order has been made under Section 3 or Section 4 in respect of, an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offenders 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.
6. On a plain reading of Sub-section (2) of Section 11, it would emerge that an appeal against an order passed by any Court trying the offender under Section 3 or Section 4, the appeal shall He to that Court, to which appeal ordinarily lies from the sentence of the former Court, For locating the forum of appeal, Sub-section (2) aforementioned beckons us to the Criminal P. C (hereinafter referred to as the ‘Code’), notwithstanding the use of the non obstante clause in the beginning of the said sub-section because it is the Code which provides the forum for trial of various offences and for preference of appeals against convictions and sentences to the forums indicated therein.
7. It deserves highlighting that in the present case we are concerned with the filing of appeal by the State. It also does not admit of any doubt that the state as also the convict could both avail the right of appeal provided by Sub-section (2) of Section 11 of the Act as rightly held by a Division Bench of Gujarat High Court in State of Gujarat v. Purani Jagatpawandas Guru Bhakti Jiwandas. (1981) 22 Guj X.R 895.
8. A search for the relevant provisions of the Code takes us to Sections 374 and 377.
9. Section 374 of the Code, which is in the following terms provides for appeals primarily at the instance of the convicts from convictions.
Appeals from Convictions.
(1) Any person convicted on a trial held by a High Court on its extraordinary original 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 Sessions 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 Session.
10. Section 377 provides for an appeal by the State Government against sentence and is in the following terms:
Appeal by the State Government against sentence.
(1) Save as otherwise provided in Sub-section (2), the state Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present am appeal to the High Court against the sentence on the ground of its inadequacy,
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Public Establishment, constituted under the Delhi Special police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to, the High Court against the sentence on the ground of its inadequacy,
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence…except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
11. Apart from the above two sections, there is no other section in the Code providing for an appeal either against the sentence or against conviction from the orders of the Courts subordinate to the High Court.
12. Before proceeding to determine as to which of the two provisions of the Code could give us the clue to the forum of appeal envisaged in Sub-section (2} of Section 11 of the Act, the significance of the use of the word “ordinarily” occurring in Sub-section (2) of Section 11 of the Act, deserves highlighting. The expression ‘ordinarily’ in my opinion has been used in contradistinction to the expression ‘specially’.
13. Provision of Clause {a) of Sub-section (3) of Section 374 of the Code confers on any person right of appeal to the Court of Session, if convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge, or Magistrate of the First Class or the Second Class. Clause (b) of Sub-section (3) also provides as a special case that when a person is sentenced under Section 325 of the Cde, then he can challenge the sentence by way of appeal in the Court, of Session, Clause (cl of Sub-section (3 V provides for an appeal against an order made or a sentence passed under Section 360 of the Code by any Magistrate, to the court of Session.
14. Clauses (b) and (c) of Sub-section (3) of Section 374 to the extent they provide for an appeal against sentence fall in the category of special provisions providing for an appeal against the sentence, because appeal from sentence in terms of Cls (b) and (c)of Sub-section (3) of Section 374 of the Code is not always competent in view of the provisions of Clause (b). (c) and (d) of Section 376 of the Code which are in the following terms :
376 No appeal in petty cases.
Notwithstanding anything contained in Section 374, there shall be no appeal by a convicted person in any of the following cases, namely:
(b) Where a Court of Session 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: or
(d) where, in a case trial summarily, a Magistrate empowered to act under Section 260 passes only a sentence of fine not exceeding two hundred rupees.
15. From the construction that I have put on the provisions of Sub-section (3) of Section 374 of the Code, it is clear that the said provision ordinarily envisages an appeal against conviction at the instance of the convicted persons to the Court of Session and not against the sentence, though a convict, while challenging his conviction can also urge the Court to reduce the sentence or pass some other order in lieu thereof.
16. Section 377 of the Code on the other hand does ordinarily provide for an appeal to the High Court at the instance of the State Government against inadequacy of the sentence imposed by the trial Court.
17. To put it differently it means that ordinarily an appeal at the instance of the State against the sentence awarded by the trial Court lay to the High Court, on the ground of inadequacy thereof,
18. The learned Counsel for the respondents, however, on the strength of Division Bench judgment of Karnataka High Court in The State of Karnataka v. Chandrappa 1981 Cri LJ 1349. urged that the provisions of Section 374 of the Code would alone help determining the forum to which the appeal in terms of Section 11(2) of the Act would lie. and in this regard drew pointed attention to the following observations of Nesargi, J. who prepared the opinion for the Bench (Para 6).
The expression ‘an appeal shall lie to the Courts to which appeals ordinarily lie from the sentences of the former court’ in Sub-section (2) of Section 11 of the Act clearly means that a reference should be made to Section 374 of the new Code to find out to which Court appeals ordinarily lie against sentences passed by a Judicial Magistrate, First Class, because the order in question has been passed by a Judicial Magistrate, First Class, Basavakalyan. To provide further clarification, we can with advantage refer to the settled law on the question while dealing with Section 520 of the old Code vis-a-vis Section 517 of the old Code. Same would be the position when Sub-section (2) of Section 458 of the new Code is looked into vis-a-vis an order made by the Judicial Magistrate ‘First Class, under Section 452 of the new Code. Therefore, the appeal contemplated under Sub-section (2) of Section 11 of the Act as against the order passed under Section 3 or Section 4 of the Act by a Judicial Magistrate, First Class, has to lie to the concerned Sessions Court. In this case, the Sessions Court is Bidar. As Sub-section (2) of Section 11 of the Act refers to only orders passed under the provisions of the Act and not to the conviction, it cannot apply to an appeal against a conviction or sentence. If a convicted accused intends to prefer an appeal against the sentence imposed on him he has to fall back on the provisions of Section 374 of the new Code. We may in this connection, with advantage, refer to Baidyanath Prasad v Awadhesh Singh , Rai Kishore v. Kalasi Sahu AIR 1971 Ori 193, State v. Jagdish and Shivcharan v. State . The very same principle has been laid down in the aforementioned decisions, and we respectfully agree with their Lordships.
19. A perusal of the above observations of Nesargi, J. would show that the learned Judge had tried to treat the provisions of Section 520 of the old Code and Section 458 of the new Code vis-a-vis an order made by the Judicial Magistrate 1st Class, under Section 517 of the old Code and under Section 452 of the new Code respectively as pari materia with the provision of Section 11(2).
20. Section 520 of the old Code and Section 458 of the new Code therefore deserve noticing. These are in the following terms:
520. Any Court of appeal, confirmation, reference or revision may direct any order under Section 517, Section 518 or Section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders- that may be just.
458. (1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found- is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the “State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed.
(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate.
21. Even a cursory look at the provisions of Section 520 of the old Code and Section 458 of the new Code would show that these provisions are not pari materia with the provisions of subsec. (2) of Section 11 of the Act.
22. In Section 520 of the old Code, the expression “Court subordinate thereto” used therein would guide the search for the forum of appeal, confirmation, reference or revision by determining as to whether the Court which passed the order under Sections 517, 518 or 519 was . a Court subordinate thereto,
23. In the case of Sub-section (2) of. Section 458 of the Code the forum of appeal is to be located by looking for a Court to which appeal ordinarily lie from convictions recorded by the Magistrate. But a hunt for locating the forum of appeal in terms of Sub-section i(2) of Section 11 is to be directed by the fact as to whether the forum that we are choosing is one to which the appeal ordinarily lie from sentences passed by. the trial Court and not to the Court to which either it is subordinate as envisaged in Section 520 of the old Code or to which ordinarily appeal from convictions recorded by such trial Magistrate lay. as envisaged in Section 458 of the new Code.
24. An identical question cropped up before a Division Bench of the Gujarat High Court also in State of Gujarat v. Purani Jagatpawandas Guru Bhakti Jiwandas. (1981) 22 Guj LR 895. With respect I entirely concur with the following observations of Ahmadi. J. who delivered the opinion for the Bench:
It seems clear to us. therefore, that an appeal under Sub-section (2) of Section 11 will lie to the Court to which an appeal ordinarily lies from the ‘sentence’ awarded by the Court trying the offender, in the present case, the Chief Judicial Magistrate. Nadiad, We have already pointed out earlier that the right of appeal conferred by Sub-section (2) of Section 11 of the Act is not limited to the accused but enures to the State also. Now, after the introduction of Section 377(1) in the Code, ordinarily an appeal by the State against the Order of sentence -imposed by the Chief Judicial Magistrate would lie to this Court, Under Section 11(2) of the Act. for the limited purpose of determining the forum to which an appeal lies, the order passed by the trial Court under Section 3 or Section 4 of the Act must be construed as an order of sentence. Against an order of sentence, so far as the State is concerned, an appeal ordinarily lies under the newly inserted Section 377(1) of the Code to this Court and to no other Court, Therefore, reading Sub-section (21 of Section 11 of the Act. with Section 377(1) of the : Code in the context of an appeal by the State, we are of the view that such an appeal would lie to the High Court. The contrary view expressed in the ‘two decisions cited earlier does not lay down the correct law.
25. For the. reasons aforementioned, our answer to the question posed in the beginning of the judgment is in the affirmative and we hold that the appeal in this case at the instance of the State Government of Chandigarh U. T. against the order under Section 4 of the Act passed by the trial Magistrate lay only to this Court.
26. In view of the above opinion, the registry is directed to entertain this appeal along with other such appeals.
