PRITHVI RAJ AND ORS. versus KAMLESH KUMAR AND ANR.

Citation: [2004] SUPP. 4 S.C.R. 571 · Decided: 20-09-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

PRITHVI RAJ AND ORS. 
A 
v. 
KAMLESH KUMAR AND ANR. 
SEPTEMBER 20, 2004 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
B 
Probation of Offenders Act, 1958: Section II (2)! 
Appeal and revision-Right to prefer-Held: The right to prefer an 
appeal is not confined only to the convicted person or the State-The 
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complainant can also prefer an appeal questioning the propriety of the order 
passed under Ss. 3 or 4. 
Appeal and revision-Interference with-Scope and limit of-Powers of 
appellate court-Held: Only the propriety and order passed under Ss. 3 or D 
4 could be dealt with by the appellate court-There is no scope of altering 
the nature of the offence an or directing that the accused should be convicted 
for another offence. 
The appellants faced trial for alleged commission of offences 
punishable under Sections 148, 307, 323, 324 and 326 read with Section 
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149 of the Penal Code, 1860. The trial court convicted the appellants for 
offences under Sections 148, 323 and 324 read with Section 149 IPC. 
However, while imposing sentence the trial court extended the benefits 
under Sections 3/4 of the Probation of Offenders Act, 1958 and held that 
the appellants were to be on probation for two years. . 
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In appeal filed by the defacto complainant, apart from questioning 
the benefits under the Act, correctness of the conclusions regarding the 
nature of the offence were also assailed. The High Court was of the view 
that the trial court was not justified in holding that no offence under 
Section 307 or 326 was made out. It was held that the accused persons 
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were liable to be held guilty for the offence punishable under Section 
326 IPC. The matter was remitted to the trial court to award sentence 
for such offence. Hence the appeal. 
The following questions arose before the Court:-
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571 
572 
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. 
A 
(a) Whether the defacto complainant can prefer au appeal under 
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c 
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Section 11(2) of the Probation of Offenders Act, 1958? 
(b) What is the scope and limit of interference in an appeal under 
Section 11(2) of the Probation of Offenders Act, 1958? 
Allowing the appeal, the Court 
HELD : 1. <tThe language of Section 11(2) of the Probation of 
Offenders Act, 1958 is unrestricted as to the person who can prefer an 
appeal. Therefore, there is no justification for confining this right only 
to the convicted person or even to the State. The complainant can also 
prefer an appeal under Section 11(2) of the Act questioning the propriety 
of the order passed under Sections 3 or 4 of the Act. [576-C, G] 
Rajkishore.Jena v. Raja, alias Kalasi Sahu, AIR (1971) Ori. 193 and 
Baidyanath Prasad v. Awadhesh Singh, AIR (1964) Pat. 358, approved. 
Parma! Ghosh v. State of West Bengal, (1984) Crl. L.J. 1302, 
·overruled. 
2. Section 11(4) of the. Act makes the position clear that only the 
propriety of the order passed under Sections 3 or 4 in respect of offenders 
can be dealt with by the Appellate Court or the High Court as the case 
may be. The Appellate Court or the High Court exercising revisional 
power may set aside such an order, passed eit~er under Sections 3 or 4 
and in lie.u thereof pass sentence on such offender. Obviously, the sentence 
can be imposed only in respect of the offence relating !o which the order 
under Section 3 or Section 4 of the Act has been passed. There is no 
scope of altering the nature of the offence and for directing that the 
_accused shall be convicted for another offence. The High Court was, 
therefore, not justified in directing that the conviction of the appellants 
shall be under Section 326 IPC. The trial court had given adequate 
reasons for passing the order under Section 4 of the Act. That being so, 
the High Court was not justified to interfere with the benefit extended 
by the trial court under the Act. [577-A-C] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 609 
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of 1999. 
PRITHVI RAJ v. KAMLESH KUMAR [PASA YAT, J.] 
573 
From the Judgment and Order dated 1.4.99 of the Rajasthan High Court 
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in S.B. Crl. A. No. 458 of 1998. 
L. Nageswara Rao and Punit Dutt Tyagi for the Appellants. 
Kumar Kartikay and Aruneshwar Gupta for the Respondents. 
The Judgment of the Court was delivered by 
ARIJIT PASAYAT, J. : Two interesting questions both revolving 
round Section 11 of the Probation of Offenders Act, 1958 (in short the 'Act') 
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are involved in this appeal. Though the questions are essentially of law, a 
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brief reference to
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