Sub-section (2) of section 11 commences with the words "notwithstanding anything contained in the Code...." and provides in unqualified terms that "an appeal shall lie to the court. . . .". Under the Code of Criminal Procedure, the appeal provisions are concerned only with orders of substantive acquittal or conviction, while the appeal provisions in Section 11(2) of the Act deal with something distinct from the fact of conviction or acquittal. On a proper construction of this provision, it appears reasonable to hold that the appeal envisaged under Section 11(2) of the Act not being against substantive acquittal or conviction, but against the propriety of the order passed under Section 3 or Section 4 of the Act, the intention of the Legislature is to confer such a right both on the prosecution and the accused.1
2. The prosecution case, in brief, is that on 14-2-67 at about 4.00 p.m., while Kulamoni (P. W. 2) was returning from the house of one Lokenath Patnaik after delivery of certain vegetables, he was waylaid by the accused persons who assaulted him with lathis causing as many as 7 injuries including one on the head of the left fibula with mild degree of displacement of upper fragment. On a report lodged at the P. S. police investigated and ultimately put the accused on trial for offences under Sections 323, and 325/149 Indian Penal Code.
The defence version is that P. W. 2 along with two others obstructed accused .Bula from taking their cattle to the kine house and there was mutual assault between him and Bula, during which, P. W. 2 fell down and sustained the injuries. The other accused deny their presence at the place of occurrence. The learned Magistrate who tried the case rejected the defence version, accepted the prosecution case, found the accused guilty of offences under Sections 323, and 325/149, Indian Penal Code and convicted them, as stated above.
3. The present revision has been filed by Rajkishore, who lodged the F. I. R. questioning the propriety of the order passed by the learned Magistrate in resorting to the provisions of Section 4 of the Probation of Offenders Act and releasing the accused on their furnishing bonds instead of awarding appropriate sentences for the offences for which they were convicted.
4. Learned counsel For opposite parties contends that this revision is incompetent in view of the right of appeal provided under Section 11 of the Probation of Offenders Act and this being a State prosecution, the complainant has no locus standi to question the order of the learned Magistrate.
5. The two points that arise for consideration are: (1) Whether in view of the provisions contained in Section 11 of the Probation of Offenders Act, the revision is maintainable and (2) whether on merits, the learned Magistrate was justified in resorting to the provisions of Section 4 of the Probation of Offenders Act.
6. Point No. 1. It is contended by learned counsel for petitioner that the revision is not barred, because firstly, this being a State prosecution, the complainant could not have filed an appeal under Sec. 11 of the Probation of Offenders Act, secondly, the bar under Sub-section (5) of Section 439, Criminal Procedure Code is limited only to persons who could have appealed but have not and thirdly, it leaves untouched the jurisdiction of the High Court to exercise its re-visional power suo motu, either on report under Section 138, Criminal Procedure Code, on information received from third parties or which otherwise comes to the knowledge of the Court.
On the other hand, it is argued by learned counsel for opposite parties that even in State Prosecutions the private complainant is entitled to prefer an appeal under Section 11 of the Probation of Offenders Act and having not done so, this revision is incompetent. It is further contended by him that Sub-section (5) of Section 439, Criminal Procedure Code completely debars entertainment of revision in cases where an appeal lies and has not been filed.
7. The point that arises is whether against an order passed under Section 4 of the Probation of Offenders Act in a State prosecution the right to prefer an appeal contained in Section 11 of that Act is available only to the accused or the prosecution as well, and in any case whether a private complainant also can prefer an appeal.
8. Section 11 of the Probation of Offenders Act, so far it is relevant, stands thus:--
"11 (1). Notwithstanding anything contained in the Code or any other law, art order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision.
(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." It is contended on behalf of the petitioner that the intention of the Legislature in enacting Sub-section (2) of Section 11 was only to remove any doubt regarding the right of appeal conferred on a convicted person, in spite of the indulgence extended to him under Section 3 or Section 4 of the Probation of Offenders Act as the stigma of a conviction would still remain. This being the sole object, it should be held that subsection (2) is not enacted to enable an appeal by the prosecution and much less by a complainant who has no locus standi in a criminal proceeding which is initiated at the instance of the State. There being thus no right of appeal for the prosecution against an order under Section 4 of the Act, the revision is not competent.
9. Sub-section (2) of section 11 commences with the words "notwithstanding anything contained in the Code...." and provides in unqualified terms that "an appeal shall lie to the court. . . .". Under the Code of Criminal Procedure, the appeal provisions are concerned only with orders of substantive acquittal or conviction, while the appeal provisions in Section 11(2) of the Act deal with something distinct from the fact of conviction or acquittal. On a proper construction of this provision, it appears reasonable to hold that the appeal envisaged under Section 11(2) of the Act not being against substantive acquittal or conviction, but against the propriety of the order passed under Section 3 or Section 4 of the Act, the intention of the Legislature is to confer such a right both on the prosecution and the accused.
If the Legislature intended that this right of appeal is to be confined to the accused only and not to the prosecution, subsection (2) of Section 11 would be imperceptibly linked up with the Code of Criminal Procedure which is not in consonance with the words "notwithstanding anything contained in the Code.." occurring at the commencement of the section. Of, course, the scope of such an appeal by the prosecution is circumscribed to the limits of judging the propriety of the order of correctional treatment passed by the court. Therefore, in my view, the right of appeal conferred under Section 11(2) of the Act is available not only to the accused, but to the prosecution as well.
10. It is urged by learned counsel for petitioner that in State prosecutions, though the private prosecutor or the complainant is not entitled to prefer an appeal against an order of acquittal, it is well settled that in terms of Sec. 439, Criminal P. Code a revision filed by him is maintainable. On that analogy, therefore, even if it be held that the prosecution can prefer an appeal under section 11(2), the private prosecutor whose status is nothing more than that of a witness in such proceeding is not competent to prefer an appeal. Therefore, a revision filed by him invoking the Jurisdiction of the Court under Section 439, Criminal Procedure Code is maintainable.
11. It is no doubt true that in State prosecutions, the role of the complainant is that of a witness when the trial starts. At the same time, it will not be correct to say that the complainant is not a person, interested in the outcome of the case. Therefore, his interest is necessarily higher than that of an ordinary witness examined to testify to certain aspects of the prosecution case. This higher interest of the complainant is taken; into consideration as the basis for entertaining a revision application filed by the complainant against an order of acquittal. Apart from it, the language of Sub-section (2) of Section 11 seems to be comprehensive, flexible and unrestricted as to the person who can prefer an appeal. This being so, there may be no justification for confining the right of appeal conferred under Section 11(2) only to the accused on the one hand and the State on the other in State prosecutions, but it must be construed that the privilege of filing an appeal conferred Under Section 11(2) within the circumscribed limits of the question of propriety of the action taken under Section 3 or Section 4 is available to a private prosecutor as well. In any view of the matter, in my opinion, the petitioner in this case who was the complainant being entitled to prefer an appeal under Section 11(2) and not having done so, the revision is not maintainable. It is further urged on behalf of the petitioner that even if it be held that the petitioner's application for revision is not maintainable, there is no bar to the Court suo motu assuming jurisdiction under Section 439, Criminal Procedure Code when the facts have come to its knowledge. Even so, suo motu revisional jurisdiction is to be exercised sparingly and in exceptional cases. I do not find any exceptional circumstance which would justify exercise of such revisional jurisdiction suo motu.
12. In the result, the revision fails and is accordingly dismissed.
Print Page
Orissa High Court
Rajkishore Jena vs Raja Alias Kalasi Sahu And Ors. on 7 September, 1970
1. The opposite parties who stood their trial for offences under Sections 323, and 325/149 Indian Penal Code were found guilty and convicted thereunder, hut instead of any sentence being passed, they were ordered to be released under Section 4 of the Probation of Offenders Act on each of them executing a bond for Rupees 1,000/- to keep peace and be of good behaviour for one year,2. The prosecution case, in brief, is that on 14-2-67 at about 4.00 p.m., while Kulamoni (P. W. 2) was returning from the house of one Lokenath Patnaik after delivery of certain vegetables, he was waylaid by the accused persons who assaulted him with lathis causing as many as 7 injuries including one on the head of the left fibula with mild degree of displacement of upper fragment. On a report lodged at the P. S. police investigated and ultimately put the accused on trial for offences under Sections 323, and 325/149 Indian Penal Code.
The defence version is that P. W. 2 along with two others obstructed accused .Bula from taking their cattle to the kine house and there was mutual assault between him and Bula, during which, P. W. 2 fell down and sustained the injuries. The other accused deny their presence at the place of occurrence. The learned Magistrate who tried the case rejected the defence version, accepted the prosecution case, found the accused guilty of offences under Sections 323, and 325/149, Indian Penal Code and convicted them, as stated above.
3. The present revision has been filed by Rajkishore, who lodged the F. I. R. questioning the propriety of the order passed by the learned Magistrate in resorting to the provisions of Section 4 of the Probation of Offenders Act and releasing the accused on their furnishing bonds instead of awarding appropriate sentences for the offences for which they were convicted.
4. Learned counsel For opposite parties contends that this revision is incompetent in view of the right of appeal provided under Section 11 of the Probation of Offenders Act and this being a State prosecution, the complainant has no locus standi to question the order of the learned Magistrate.
5. The two points that arise for consideration are: (1) Whether in view of the provisions contained in Section 11 of the Probation of Offenders Act, the revision is maintainable and (2) whether on merits, the learned Magistrate was justified in resorting to the provisions of Section 4 of the Probation of Offenders Act.
6. Point No. 1. It is contended by learned counsel for petitioner that the revision is not barred, because firstly, this being a State prosecution, the complainant could not have filed an appeal under Sec. 11 of the Probation of Offenders Act, secondly, the bar under Sub-section (5) of Section 439, Criminal Procedure Code is limited only to persons who could have appealed but have not and thirdly, it leaves untouched the jurisdiction of the High Court to exercise its re-visional power suo motu, either on report under Section 138, Criminal Procedure Code, on information received from third parties or which otherwise comes to the knowledge of the Court.
On the other hand, it is argued by learned counsel for opposite parties that even in State Prosecutions the private complainant is entitled to prefer an appeal under Section 11 of the Probation of Offenders Act and having not done so, this revision is incompetent. It is further contended by him that Sub-section (5) of Section 439, Criminal Procedure Code completely debars entertainment of revision in cases where an appeal lies and has not been filed.
7. The point that arises is whether against an order passed under Section 4 of the Probation of Offenders Act in a State prosecution the right to prefer an appeal contained in Section 11 of that Act is available only to the accused or the prosecution as well, and in any case whether a private complainant also can prefer an appeal.
8. Section 11 of the Probation of Offenders Act, so far it is relevant, stands thus:--
"11 (1). Notwithstanding anything contained in the Code or any other law, art order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision.
(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." It is contended on behalf of the petitioner that the intention of the Legislature in enacting Sub-section (2) of Section 11 was only to remove any doubt regarding the right of appeal conferred on a convicted person, in spite of the indulgence extended to him under Section 3 or Section 4 of the Probation of Offenders Act as the stigma of a conviction would still remain. This being the sole object, it should be held that subsection (2) is not enacted to enable an appeal by the prosecution and much less by a complainant who has no locus standi in a criminal proceeding which is initiated at the instance of the State. There being thus no right of appeal for the prosecution against an order under Section 4 of the Act, the revision is not competent.
9. Sub-section (2) of section 11 commences with the words "notwithstanding anything contained in the Code...." and provides in unqualified terms that "an appeal shall lie to the court. . . .". Under the Code of Criminal Procedure, the appeal provisions are concerned only with orders of substantive acquittal or conviction, while the appeal provisions in Section 11(2) of the Act deal with something distinct from the fact of conviction or acquittal. On a proper construction of this provision, it appears reasonable to hold that the appeal envisaged under Section 11(2) of the Act not being against substantive acquittal or conviction, but against the propriety of the order passed under Section 3 or Section 4 of the Act, the intention of the Legislature is to confer such a right both on the prosecution and the accused.
If the Legislature intended that this right of appeal is to be confined to the accused only and not to the prosecution, subsection (2) of Section 11 would be imperceptibly linked up with the Code of Criminal Procedure which is not in consonance with the words "notwithstanding anything contained in the Code.." occurring at the commencement of the section. Of, course, the scope of such an appeal by the prosecution is circumscribed to the limits of judging the propriety of the order of correctional treatment passed by the court. Therefore, in my view, the right of appeal conferred under Section 11(2) of the Act is available not only to the accused, but to the prosecution as well.
10. It is urged by learned counsel for petitioner that in State prosecutions, though the private prosecutor or the complainant is not entitled to prefer an appeal against an order of acquittal, it is well settled that in terms of Sec. 439, Criminal P. Code a revision filed by him is maintainable. On that analogy, therefore, even if it be held that the prosecution can prefer an appeal under section 11(2), the private prosecutor whose status is nothing more than that of a witness in such proceeding is not competent to prefer an appeal. Therefore, a revision filed by him invoking the Jurisdiction of the Court under Section 439, Criminal Procedure Code is maintainable.
11. It is no doubt true that in State prosecutions, the role of the complainant is that of a witness when the trial starts. At the same time, it will not be correct to say that the complainant is not a person, interested in the outcome of the case. Therefore, his interest is necessarily higher than that of an ordinary witness examined to testify to certain aspects of the prosecution case. This higher interest of the complainant is taken; into consideration as the basis for entertaining a revision application filed by the complainant against an order of acquittal. Apart from it, the language of Sub-section (2) of Section 11 seems to be comprehensive, flexible and unrestricted as to the person who can prefer an appeal. This being so, there may be no justification for confining the right of appeal conferred under Section 11(2) only to the accused on the one hand and the State on the other in State prosecutions, but it must be construed that the privilege of filing an appeal conferred Under Section 11(2) within the circumscribed limits of the question of propriety of the action taken under Section 3 or Section 4 is available to a private prosecutor as well. In any view of the matter, in my opinion, the petitioner in this case who was the complainant being entitled to prefer an appeal under Section 11(2) and not having done so, the revision is not maintainable. It is further urged on behalf of the petitioner that even if it be held that the petitioner's application for revision is not maintainable, there is no bar to the Court suo motu assuming jurisdiction under Section 439, Criminal Procedure Code when the facts have come to its knowledge. Even so, suo motu revisional jurisdiction is to be exercised sparingly and in exceptional cases. I do not find any exceptional circumstance which would justify exercise of such revisional jurisdiction suo motu.
12. In the result, the revision fails and is accordingly dismissed.
No comments:
Post a Comment