STATE OF GUJARAT Vs. KHARVA GABHA MAVJI
HIGH COURT OF GUJARAT
STATE OF GUJARAT
KHARVA GABHA MAVJI
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M.K.SHAH, J. -
(1.) These three proceedings arise out of an order passed by the Court of the learned Judicial Magistrate First Class at Mandvi-Kutch in Criminal Case No. 137/78 convicting the respondent-original accused for the offence under sec. 325 of the Criminal Procedure Code and instead of passing any sentence of punishment against him giving him benefit under the Probation and Offenders Act and ordering his release on his passing a bond of Rs. 2000.00 with one surety in like amount for a period of two years for good conduct and imposing certain conditions under the Probation of Offenders Act (the Act) as also awarding compensation of Rs. 500.00 to the heirs of the deceased payable by the accused under the provisions of sec. 5 (1) (a) of the Act. ... ... ... ... ...
(2.) Now so far as the appeal for enhancement is concerned it is contended on behalf of the accused that as in the instant case instead of passing an order of sentence the Court has passed an order of releasing the accused on probation under the Act no appeal for enhancement would lie to this Court under the provisions of sec. 377 (1) of the Criminal Procedure Code (the Code) which provides for an appeal to the High Court against sentence on the ground of its inadequacy. When there is no order of sentence passed by the learned Magistrate the question of appeal against sentence on the ground of its inadequacy does not and cannot arise. The appeal therefore is prima facie misconceived Again there are specific provisions contained in sub-section (2) of sec. 11 of the Act providing as under:
"Notwithstanding anything contained in the Code where an order under sec. 3 or sec. 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 sentence of the former court". Sub-sec. (2) of sec. 11 of the Act begins with a non-obstante clause and lays down that appeals from orders which are passed under sec. 3 or sec. 4 giving benefit to the accused under the Act would lie to the court to which the appeals ordinarily lie from the sentence of the former court. There is no dispute that in the instant case ordinarily the appeal from sentence of the trial court would lie to the Sessions Court and not to this court and therefore the proper forum for the State to challenge the order passed under sec. 4 of the Act would be the Sessions Court as provided under sub-sec. (2) of sec. 11 of the Act by way of appeal challenging the order passed giving benefit of the provisions of sec. 4 of the Act to the accused and not by way of an appeal of enhancement of sentence to this Court provided under sec. 377 (1) of the Code as has been done in the instant case.
(3.) However as suggested by Mr. Mehta the learned Public Prosecutor instead of disposing of the appeal by dismissing it as such which would result in driving the State to file another fresh appeal in the Sessions Court this Court can under its inherent powers saved and recognised by sec. 482 of the Code transfer the said appeal to the Sessions Court for being disposed of after treating the same as an appeal filed under sub-sec. (2) of sec. 11 of the Act.;
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