G HIGH COERT OF CHI-EATTISGARH AT BILASPUR Cr. App. H0317: 1992 SB: Hon’ble Shri Justice R.L. Jhanwar APPELLANT State of MP. through the s.H.o. ‘ Kilnul, Distn'ct Bastar. V " Versus RES?ONDENT Dajzybai W/o Atmaram Halva, aged 26 years, R/o Dharampura Kamp, Kmdul, RS. Kmul, District Bastar. ‘ a APPEAL UNDER SECTION 377{ 1 ¥ CR:P.C. Appearance: Shri D.K.Gwalrc, Govsmnient Advocate for the State] appellant. Shn' Sarafraj Khan, Advocate appaars on behalf of Shri Awadh Tn'pathi, counsel for the respondent. oRAL ORDER (17.7.2009) R.L.Jhanwar, J. The respondent was prosecuted for commitmg offence punishable under Sections 452 and 323 of the IPC. While convicting the respondent under Sections 452 and. 323 of the IPC, Judicial Magistrate First Class, Dantewada, exercising powers under Section 3 of the Probation of Oifenders Act, 1958(hereinafter referred to as ‘the Act’), released the respondent after dfiE‘ admonition. Being aggrieved, the State/appellant has preferred this Criminal Appeal under Section 377 (1} of the Code of Criminal Procedure. a 2 Cr.App,817/1992 G I have heard 1€a1n€d counssl for both tha paltiss and have pemscd the racord. Léamed counsel for the respondent referm‘ng to Section 1 1 of the Act and the judgment passed by the Apex Court in the matter of State of Uttar Pradesh, AppeHant V Nand Kishore Misraq Respondent, repoxted in AIR 1991 S.C. 763, vehemently contended that the appeal filed by the State is not maintainable becadse no such appeal is competent before the High Court t under Sections 374(3) and 377 (1) Cr. P. C. and Section 11 (2) of the {Act Section 374(3) C1‘.P.C. reads as under : 374.(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. Section 377 (l) Cr.P.C. reads as under : 377(1) Save as otherwise provided in sub—sebtion (2), the State Government may in any case of conviction 3n a trial held by any Court other than a High Court, direct the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy— (a) to the Court of session, if the sentence is ‘ passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other Court). Section 11 (2) of the Probation of Offenders Act, 1958 reads as under : A 3 Cr.App.817/1992 € 11 (2) Notwimstandmg anything contained in the Code, where ajl order under section 3 or section 4 is made by ally coiurt trying the offendsr (other than a High Court), an appeal sliail lie to the court to which appeals ordinarily lie from the sentences of the former court, t y 1 On reading above provisions together, it is clear that only on the ground of inadequacy of sentence State may prefer appeal before the High Court and if instead of sentence, convict has been released on probation, the appeal shall lie to the Court toi which the appeal ordinarily lie from the sentence of trial Court. When Magistrate, instead of sentencing the convict, released him on probation, the appeal shall lie to the Court of Sessions, Where ordinarily appeals lie from the sentences awarded by the Magistrates, in accordance with Section 374 (3) CLPC. In the matter of State of Uttar Pradesh, Appellant V, Nand Kishore Mism, Respondent, AIR 1991 S.C. 763, the Apex Court has observed as below : Where the convict was released on probation under S. 4 of the Probation Act, by the Magistrate, the appeal against release would lie to the Sessions Court in view of the provisions of 311(2) of the said Act and appeal to the High nCourt under Section 377(1) of the Cr.P.C. would not be competent. In the result, the appeal tiled by the State is not competent: The appeal is liable to be dismissed and it is accordingly dismissed. c R.L. Jhanwar Judge // Sdl- sunita