V.S.DAVE,J. - (1.) THIS revision petition is. directed against the judgment of learned Additional Sessions Judge No. 2, Bharatpur dated 4.9.1990, who maintained the conviction under Section 323 IPC and extended the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as, 'the Act, 1958') to the petitioners.
(2.) BRIEFLY stating the facts of the case are that a report was lodged at Police Station, Bhusavar on 10.1.74 alleging that accused petitioners alongwith others gave beating to Shiv Dutt. A case under Section 307 IPC was registered and investigation commenced. During the course of investigation complaint also filed a complaint on 7.5.75 on which a report was sought for from the police station as as FIR had already been lodged and matter was investigated. The police, on 13.8.75, submitted a charge -sheet, which came up for consideration before the learned Magistrate on 5.5.76. He took cognizance of the offence under Section 147/323 IPC against as many as six accused persons including the two petitioners. During the course of trial, prosecution examined as many as five witnesses in suport of its case. Accused examined six witnesses in his defence. It is pertinent to mention here that during the course of trial, one accused Shyam Lal died hence, the proceedings were droped against him. A compromise was entered into between the complainant and accused Charan Lal and as such accused Charan lal was also acquitted in terms of compromise. Thus, the case proceeded only against four accused persons. The learned Magistrate held Jagdish, Ramnath, Kedar and Suresh guilty of offence under Section 147 and 323 IPC and gave them the benefit of Section 4 of theAct, 1958. Against this judgment, an appeal was preferred before the learned Sessions Judge, Bharatpur, which was transferred to the Court of Addl. Sessions Judge No. 2. The learned Additional Sessions Judge held that the offence is not established under Section 147 IPC. He, however, maintained the conviction of petitioners Jagdish and Suresh under Section 323 IPC only and maintained the order of granting benefit of Section 4 olf the Act, 1958. It is against this judgment that the present revision petition has been filed. On behalf of the State, a point has been agitated that no appeal was maintainable because of Section 376 Cr.P.C., and, therefore, this revision too is not maintainable. The objection was that no appeal has been provided in the petty cases and the proviso also states that appeal may be brought against any of the sentence as mentioned in Clause (a) to (b) of Sub -section (1), if any, however, punishment is combined with the same but again exception has been carved out by the legislature, such sentence shall not be appealable merely on the ground that the person convicted is to furnish security to keep peace or that a direction of imprisonment in default of payment of fine is included in the sentence or that more than one sentence is passed in the case, if the total fine imposed, does not exceed the amount hereinbefore specified in respect of the case. In other words, the submission is that since the accused has been ordered to furnish security to keep peace and be of good behaviour under Section 4 of the Probation of Offenders Act, no appeal would lie under Section 376 Cr. P.C. It is submitted that right of appeal as provided under Section 11 of the Probation of Offenders Act, is also not available to the accused because Section 374 Cr.P.C. is not applicable and if no apeal was maintainable, the order of learned Additional Sessions Judge should be treated as an order in revision and second revision is not permissible.
(3.) REPLYING to the preliminary objection, Mr. Surana has submitted that appeal is against an order of conviction under Section 374 Cr.P.C. an when the exceptions have been made and in Section 376 Cr.P.C. they are in respect of the sentences which classify the cases as petty cases. His submission is that benefit of provisions of Probation of Offenders Act cannot be equated with the provisions of Section 360, Cr.P.C., and, therefore, an appeal was maintainable.;