Case Note & Summary
The State of Maharashtra appealed against an order of the Assistant Sessions Judge, Solapur, who convicted ten respondents for an offence punishable under Section 324 of the Indian Penal Code read with Section 34 of the IPC, but instead of sentencing them, granted them the benefit of the Probation of Offenders Act, 1958, directing them to be released on a bond of Rs.15,000 for two years. The State filed the appeal under Section 377 of the Code of Criminal Procedure, 1973, claiming inadequacy of sentence. The High Court observed that since no sentence was actually imposed, an appeal under Section 377 CrPC was not maintainable; the proper remedy would have been an appeal under Section 11(2) of the Probation of Offenders Act. However, considering that the appeal had been pending for a long time, the court decided to dispose it of on merits. The court noted that the trial court had convicted the respondents under Section 324 IPC (voluntarily causing hurt by dangerous weapons) and had acquitted them of more serious charges under Sections 307, 326, 504, 143, 147, and 148 IPC. The High Court found no reason to interfere with the order granting probation, as the trial court had exercised its discretion properly. The appeal was dismissed.
Headnote
A) Criminal Procedure - Maintainability of Appeal - Section 377 CrPC - When no sentence is imposed, an appeal under Section 377 CrPC for inadequacy of sentence is not maintainable; the proper remedy is an appeal under Section 11(2) of the Probation of Offenders Act, 1958 (Paras 3-4).
B) Probation of Offenders Act - Grant of Probation - Section 4 - The court can release a convicted person on probation of good conduct instead of sentencing, even for offences punishable with imprisonment up to seven years, subject to conditions (Para 1).
Issue of Consideration
Whether an appeal under Section 377 of the Code of Criminal Procedure, 1973 is maintainable against an order granting benefit of the Probation of Offenders Act, 1958 without imposing any sentence.
Final Decision
The appeal is dismissed. The court held that the appeal under Section 377 CrPC was not maintainable as no sentence was imposed, but disposed of the appeal on merits, finding no reason to interfere with the trial court's order granting probation.
Law Points
- Appeal under Section 377 CrPC not maintainable when no sentence imposed
- Proper remedy under Section 11(2) of Probation of Offenders Act
- Benefit of Probation of Offenders Act can be granted for offence under Section 324 IPC
Case Details
2015 LawText (BOM) (09) 77
Criminal Appeal No.1143 of 2011
Shri Deepak Thakre (APP for Appellant), Shri Ujwal R. Agandsurve (Advocate for Respondents)
Balu Gena Sarvade, Yuvraj Balu Sarvade, Baburao Janappa Sarvade, Gulab Dnyandeo Sarvade, Prabhakar Bhujang Kale, Anand Bharat Sarvade, Pandurang Vithoba Jawanjal, Martand Bhimrao Kale, Ashok Gena Sarvade, Appa Jannappa Sarvade
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Nature of Litigation
Criminal appeal by State against order granting probation to convicted respondents.
Remedy Sought
State sought enhancement of sentence, challenging the grant of probation under the Probation of Offenders Act.
Filing Reason
State aggrieved by the Assistant Sessions Judge granting benefit of Probation of Offenders Act to respondents convicted under Section 324 IPC.
Previous Decisions
Assistant Sessions Judge, Solapur convicted respondents under Section 324 IPC read with Section 34 IPC and released them on probation under Section 4 of P.O.Act; acquitted them of other offences.
Issues
Whether an appeal under Section 377 CrPC is maintainable when no sentence is imposed but only probation is granted.
Whether the trial court's order granting probation under the Probation of Offenders Act was proper.
Submissions/Arguments
State argued that the appeal under Section 377 CrPC was maintainable and that the trial court erred in granting probation.
Respondents argued that the appeal was not maintainable as no sentence was imposed, and the trial court's discretion was proper.
Ratio Decidendi
An appeal under Section 377 of the Code of Criminal Procedure, 1973 is not maintainable against an order granting the benefit of the Probation of Offenders Act, 1958 without imposing any sentence, as there is no sentence to be enhanced. The proper remedy is an appeal under Section 11(2) of the Probation of Offenders Act.
Judgment Excerpts
Whether the present appeal under Section 377 of the Code is maintainable, is extremely doubtful, – to say the least.
When the respondents have been granted the benefit of the provisions of the P.O.Act, actually, no sentence has, yet, been imposed upon them.
the proper course for the State ought to have been to file an appeal as contemplated under Section 11(2) of the P.O.Act.
Procedural History
The respondents were prosecuted along with four others before the Assistant Sessions Judge, Solapur. The trial court acquitted four accused and convicted the ten respondents under Section 324 IPC read with Section 34 IPC, granting them probation under Section 4 of the Probation of Offenders Act. The State filed the present appeal under Section 377 CrPC challenging the grant of probation.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 307, 326, 324, 504, 149, 34, 143, 147, 148
- Code of Criminal Procedure, 1973 (CrPC): 377
- Probation of Offenders Act, 1958 (P.O.Act): 4, 11(2)
