Uttarakhand High Court
Unknown vs Som on 3 May, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
3rd MAY, 2023
GOVERNMENT APPEAL NO. 241 of 2008
Between:
State of Uttarakhand .....Appellant
and
Som .....Respondent
Counsel for the Appellant : Mr. S.S. Adhikari, Deputy
Advocate General with Mrs.
Shivangi Gangwar, Brief
Holder.
Counsel for the Respondent : Mr. Nagesh Aggarwal,
Advocate.
Hon'ble Alok Kumar Verma, J.
Present Government Appeal has been filed under
Section 377 of the Code of Criminal Procedure, 1973 on the
ground of inadequate sentence dated 08.05.2008, passed by
learned Additional Sessions Judge/ Ist Fast Track Court,
Haridwar in Sessions Trial No. 71 of 2004, "State vs. Som
and Another", whereby, benefit of probation under Section 4
of the Probation of Offenders Act, 1958 (for short, "Act,
1958") for a period of two years has been granted.
2. Respondent-accused- Som was convicted for the
offence punishable under Section 323 of the Indian Penal
Code, 1860 (for short, "IPC"), under Section 325 IPC and
Section 427 IPC.
3. Heard Mr. S.S. Adhikari, learned Deputy Advocate
General along with Mrs. Shivangi Gangwar, learned Brief
Holder for the appellant and Mr. Nagesh Aggarwal, learned
counsel for the respondent.
4. Mr. S.S. Adhikari, learned Deputy Advocate
General, submitted that the present appeal has been filed
against the order of inadequate sentence. He further
submitted that the Trial Court has committed error by not
taking into consideration that Section 323 IPC provides
imprisonment for a term which may extend to one year, or
with fine, or with both; Section 325 IPC provides
imprisonment of either description for a term which may
extend to seven years with fine; and Section 427 IPC
provides imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
5. On the other hand, learned counsel appearing for
the respondent has supported the impugned sentence and
contended that appeal should be filed under sub-section (2)
of Section 11 of the Act, 1958, therefore, the present
Government Appeal, filed under Section 377 of the Code of
Criminal Procedure, 1973, is not maintainable. In support of
his submission, he relied upon a judgment of Hon'ble High
Court of Rajasthan, in "State of Rajasthan vs. Hari Ram,
2017 0 Supreme (Raj) 1924".
6. Section 11 of the Act, 1958 is as follows:-
"11. Courts competent to make order under the
Act, appeal and revision and powers of courts in
appeal and revision.--
(1) Notwithstanding anything contained in the Code or
any other law, an order under this Act, may be made
by any court empowered to try and sentence the
offender to imprisonment and also by the High Court
or any other court when the case comes before it on
appeal or in revision.
(2) Notwithstanding anything contained in the Code,
where an order under Section 3 or Section 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 sentences of the former
court.
(3) In any case where any person under twenty-one
years of age is found guilty of having committed an
offence and the court by which he is found guilty
declines to deal with him under Section 3 or Section 4,
and passes against him any sentence of imprisonment
with or without fine from which no appeal lies or is
preferred, then, notwithstanding anything contained in
the Code or any other law, the court to which appeals
ordinarily lie from the sentences of the former court
may, either of its own motion or on an application
made to it by the convicted person or the probation
officer, call for the examine the record of the case and
pass such order thereon as it thinks fit.
(4) When an order has been made under Section 3 or
Section 4 in respect of an offender, the Appellate
Court or the High Court in the exercise of its power of
revision may set aside such order and in lieu thereof
pass sentence on such offender according to law:
Provided that the Appellate Court or the High
Court in revision shall not inflict a greater punishment
than might have been inflicted by the court by which
the offender was found guilty."
7. By passing impugned judgment, learned Trial
Court has observed that the accused is an old person and
there is no adverse report against him, therefore, it would
be appropriate to grant benefit of probation under Section 4
of the Act, 1958.
8. Present matter is pending since the year 2002.
Incident took place on 29.06.2002 and First Information
Report (Ext. Ka. 8) was registered on 30.06.2002. Charge
was framed on 27.04.2004 for the offence under Section
323/34 IPC, Section 308/34 IPC, Section 336/34 IPC,
Section 427 IPC, Section 504 IPC and Section 506 IPC.
Statements of the respondent-accused under Section 313 of
the Code of Criminal Procedure, 1973, was recorded on
18.03.2008 and at that time, he was 62 years old.
Respondent-accused has been acquitted of the charge under
Section 308/34 IPC, Section 336/34 IPC, Section 504 IPC
and Section 506 IPC.
9. Learned counsel for the respondent has argued
that the present Appeal is not maintainable under Section
377 IPC, and, he has relied upon the said judgment in the
case of State of Rajasthan (Supra).
10. Apart from this, present matter is pending since
2002, and, at that time, the respondent-accused was 56
years old. Respondent-accused has no criminal history and
there is nothing on record to indicate that the respondent
had earlier been involved in any unacceptable activity. This
is a fit case to grant benefit of probation. Therefore, I am of
the view that order to grant benefit of probation suffers from
no infirmity and accordingly the same is upheld.
11. As a result, present Government Appeal is liable to
be dismissed. The Government Appeal is dismissed
accordingly.
__________________
ALOK KUMAR VERMA, J.
rd
Dt: 3 May, 2023
Shiksha
