Section 11 – Courts competent to make order under the Probation of Offenders Act

Section 11 – Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision – Probation of Offenders Act:

(1) Notwithstanding anything contained in the Code or any other law, an 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.

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(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) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under Section 3 or Section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then notwithstanding anything contained in the Code or any other law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the Probation Officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(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 offender 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.

Comment:

The provisions relating to appeals and revision against the order of probation passed by the Court under Section 3 or 4 of the Probation of Offenders Act, 1958 are contained in Section 11 of the Act. The provisions as to appeal and revision contained in this section are comprehensive and empower the appellate Court or the High Court in exercise of its power of revision to set aside the order and in lieu thereof pass sentence on such offender according to law.

However, the appellate Court or the High Court, as the case may be, in its revision shall not inflict a greater punishment than the one inflicted by the Court by which the offender was found guilty.

The Supreme Court in Satyabhan Kishore and another v. State of Bihar, has ruled that it can apply Section 6 suo motu or may direct the High Court to do so in case of an offender who is under the age of 21 years and found guilty of haying committed an offence and the Court below having declined to deal with him under the Probation of Offenders Act, passes any sentence of imprisonment with or without fine for which no appeal has been preferred.

The provisions of this section (i.e., Section 11) are to be beneficially construed as held by the Supreme Court in Ramji Missar’s case. The Court, inter-alia observed:

“Section 11 of the Probation of Offenders Act, 1958, is to be given wider interpretation because it is a beneficial statute. So the Courts mentioned in Section 11, be they trial courts or Courts exercising appellate or revisional jurisdiction, are thereby empowered to exercise the jurisdiction conferred on Courts not only under Sections 3 and 4 and the consequential provisions but also under Section 6 of the Act.”

It must be noted that the appeal contemplated by Section 11 (2) of the Act refers to an appeal against the propriety of the probation order passed by the trial Court under Section 3 or Section 4 of the Act, and not an appeal against substantial acquittal or conviction of the offender. The right to appeal conferred under sub-section (2) extends not only to the accused but also to the prosecution. This contention finds support in the case of Nangthombam Kanhai v. Rajkumar Singh wherein the High Court observed that sub­section (2) of Section 11 of the Probation of Offenders Act, 1958 makes it clear that it is not the convicted person alone who could file an appeal where probation order is improperly made under Section 3 or Section 4 by the Court but the prosecution can also prefer an appeal to the appellate Court.

Similar view has been expressed by the High Court of Patna in Baidyanath Prasad v. Avadesh Singh wherein the Court held that since the language of sub-section (2) is comprehensive, flexible and unrestricted as to the person who can prefer an appeal against an improper probation order made by the trial Court, there is no justification for conferring right of appeal only to the convicted person or to the State when State is conducting prosecution. Therefore, the right to appeal under this sub-section also extends to the complainant.

In the instant case the complainant had appealed against the order of the trial Magistrate who had accepted the report of the Probation Officer stating that the accused belonged to respectable families and there was no previous conviction against them, and ordered release of accused under Section 3 of the Act after giving them due admonition.

The appeal preferred by the complainant under Section 11 (2) was dismissed by the Additional Sessions Judge, Monghyr on the ground that no appeal could be made in a case under Section 380. I.P.C. and as the prosecution in this case was conducted by the State hence a private party had no locus standi to prefer an appeal against an order passed under Section 3 of the Probation of Offenders Act.

The complainant, thereafter filed a revision petition to the High Court challenging the correctness of the view expressed by the Additional Sessions Judge. Dismissing the appeal, the High Court upheld the order of probation passed by the trial Magistrate as the accused were charged of pilfering a petty sum of Rs. 100/- from the cash box and there being no previous conviction against them, there was sufficient valid reason to sustain order of admonition under Section 3 of the Act. But the Court clarified that the appeal was being dismissed on merits and not because it was filed by complainant instead of the prosecution or the accused.