- (1.) The respondent was prosecuted under Ss. 279, 337, 378, 427, and 304A, I.P.C. While convicting the respondent under the above Sections the Magistrate released him on probation under S. 4 of the U.P. First Offenders Probation Act, 1958 (hereinafter called the Act). Aggrieved by the said order, the State of U.P. filed an appeal before the High Court under S. 377, Criminal Procedure Code. The High Court on the interpretation of S. 377, Criminal Procedure Code and S. 11(2) of the Act came to the conclusion that no appeal was competent before the High Court. While dismissing the appeal, the High Court observed as. under: "From a perusal of S. 11(2) it is clear that as soon as the Court released an accused under S. 3 or S. 4 an appeal shall lie to the Court to which the appeals ordinarily lie and, therefore, the provision of S. 377, Cr.P.C. would not apply. In the instant case the State filed an appeal and by this appeal the State has challenged the order by which the trial Court has granted the benefit of the First Offenders Probation Act to the respondent. On the other hand, S. 377, Cr.P.C. provides remedy to the State to prefer appeals against the order of conviction by the trial Court only on the ground of inadequacy of sentence. S. 378, Cr.P.C. provides; that an appeal can be filed against the order of acquittal. In the instant case the order releasing the respondent under S. 4 of the First Offenders Probation Act was passed by the Magistrate and, therefore, ordinarily in accordance with S. 11(2) of the Probation of Offenders Act, 1958 the appeal would lie to the Court of Sessions and not to this Court."
(2.) The State of U.P. has further come up in appeal to this Court via special leave petition.
(3.) Section 377(1) of the Criminal Procedure Code is as under: "377. Appeal by the State Government against sentence.- (1) Save as otherwise provided in sub-sec. (2) the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.";