Himachal Pradesh High Court
Reserved On: 18.8.2025 vs State Of H.P. And Others on 25 August, 2025
2025:HHC:28530
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 145 of 2025
.
Reserved on: 18.8.2025
Date of Decision: 25.8.2025.
Krishna Thakur and another …Petitioners
Versus
State of H.P. and others …Respondents
Coram
Hon’ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Hamender Singh Chandel,
Advocate.
For Respondent No.1 : Mr. Prashant Sen, Deputy Advocate
General.
For Respondents No.2 to 5 : Mr. B.S. Chauhan, Senior Advocate,
with Ms. Aditi Rana, Advocate.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing of the judgment dated 1.10.2024, passed by learned
Additional Sessions Judge, Kinnaur at Rampur Bushehr (learned
Appellate Court), vide which the appeal filed by the petitioners
(appellants before the learned Appellate Court) was held to be not
maintainable. (Parties shall hereinafter be referred to in the same
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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manner as they were arrayed before the learned Trial Court for
convenience.)
.
2. Briefly stated, the facts giving rise to the present
petition are that the police filed a charge-sheet before the learned
Additional Chief Judicial Magistrate, Rampur Bushehr, District
Shimla, H.P. (learned Trial Court) for the commission of offences
punishable under Sections 147, 451, 323, 325 and 506 read with
Section 149 of the Indian Penal Code (IPC) against the accused
(respondents No.2 to 5). Learned Trial Court convicted the
accused of the commission of offences punishable under Sections
147, 451, 323, 325, 506 read with Section 149 of IPC and ordered
their release under Section 4 of the Probation of Offenders Act for
three years subject to furnishing of personal and surety bonds for
₹50,000/- for maintaining the peace and good behaviour. They
were also directed to pay compensation of ₹5,000/- each to
injured Krishna and Nirmla.
3. The petitioners/appellants filed an appeal under
Section 11 of the Probation of Offenders Act against the order
passed by the learned Trial Court. Learned Appellate Court held
that the appellants were the complainants and they could file an
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appeal under the proviso to Section 372 of Cr.P.C. against the
judgment of conviction for a lesser offence, but not for
.
inadequacy of the offence. There is no provision for filing an
appeal against the order releasing a person on probation. Section
11(2) of the Probation of Offenders Act empowers a victim to file
an appeal in a manner in which an appeal ordinarily lies from the
sentence. Since no appeal lies against the sentence, therefore, the
appeal was not maintainable.
4. Being aggrieved by the judgment passed by the
learned Appellate Court, the petitioners have filed the present
petition for setting aside the judgment.
5. I have heard Mr. Hamender Singh Chandel, learned
counsel for the petitioners, Mr. Prashant Sen, learned Deputy
Advocate General, for respondent No.1-State and Mr. B.S.
Chauhan, learned Senior Counsel, assisted by Ms. Aditi Rana,
learned counsel for respondents No. 2 to 5.
6. Mr. Hamender Singh Chandel, learned counsel for the
petitioners, submitted that an appeal lies against an order passed
under Sections 3 and 4 of the Probation of Offenders Act and the
learned Appellate Court erred in holding otherwise. Therefore, he
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prayed that the present petition be allowed and the judgment
passed by the learned Appellate Court be set aside.
.
7. Mr. Prashant Sen, learned Deputy Advocate General,
for respondent No.1-State, supported the submissions of Mr.
Hamender Singh Chandel, learned counsel for the petitioners and
submitted that the learned Appellate Court erred in holding that
the appeal was not maintainable.
8. Mr. B.S. Chauhan, learned Senior Counsel for
respondents No.2 to 5, submitted that the learned Trial Court had
rightly held that the appeal was not maintainable under the
proviso to Section 372 of Cr.P.C. and the appeal under Section
11(4) was to be filed in a manner provided under law. Since there
is no provision of appeal under the proviso to Section 372 of
Cr.P.C. against inadequacy of the sentence, therefore learned
Appellate Court had rightly held the appeal to be non-
maintainable. He prayed that the present appeal be dismissed.
9. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent-State, submitted that the charge
sheet has been filed before the learned Trial Court and the
petitioners have a right to approach the learned Trial Court for
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seeking their discharge. This Court should not exercise its
inherent jurisdiction in the present case. Hence, he prayed that
.
the present petition be dismissed.
10. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
11. It was laid down by the Hon’ble Supreme Court in
Prithvi Raj v. Kamlesh Kumar, (2004) 8 SCC 303, that a de facto
complainant can prefer an appeal against the order passed by the
learned Trial Court under Sections 3 and 4 of the Probation of
Offenders Act. It was observed:-
“7. The first question is whether a de facto complainant
can prefer an appeal under sub-section (2) of Section 11.
The provision only speaks of the forum in which such anappeal is to be made. It does not specifically provide as to
who can prefer an appeal. There is a divergence in view asregards the maintainability of the appeal by the
complainant. The Orissa and Patna High Courts have held
that it was maintainable at the instance of the de factocomplainant. (See Rajkishore Jena v. Raja [AIR 1971 Ori 193]
and Baidyanath Prasad v. Awadhesh Singh [AIR 1964 Pat 358:
(1964) 2 Cri LJ 176].) It was held by the Patna High Court
that the complainant can file revision against the order of
acquittal under the Code of Criminal Procedure, 1973 (in
short “the Code”). Consequently, it was observed that the
complainant has an interest in the conviction and
sentence. The Orissa High Court dismissed the revision
petition filed by the complainant, holding that it had the
right of appeal to the Sessions Court under Section 11(2) of
the Act. The Calcutta High Court in Parmal Ghosh v. State of::: Downloaded on – 25/08/2025 21:27:15 :::CIS
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2025:HHC:28530W.B. [1984 Cri LJ 1302 : (1984) 1 CHN 329 (Cal)] has taken a
different view and held that the State has a right to be
heard at the time of imposition of sentence, but not the
complainant. The role of the State Government is to ensure.
that the accused person is punished for the offence
committed and an adequate sentence is imposed. If the
State is of the view that the sentence is inadequate, it can
move the higher court as provided in the Code.
8. The language of Section 11(2) is unrestricted as to the
person who can prefer an appeal. Therefore, there is no
justification for confining the right only to the convicted
person or even to the State. The issue can be looked at from
another angle. Under the revisional jurisdiction, the High
Court, in an appropriate case, can direct a retrial, though it
cannot convert the order of acquittal to an order of
conviction. When an application in revision is allowed by
the court against the order of acquittal at the instance of
the private party, the High Court is obliged in law to
remand the appeal. But in all other circumstances, the High
Court is competent to pass any order that may be passed by
a court of appeal.
9. It is to be noted that sub-section (2) of Section 11
commences with the expression “notwithstanding
anything contained in the Code” and provides in
unqualified terms that “an appeal shall lie to the court”.
Under the Code, the appeal proceedings are concerned only
with orders of acquittal or conviction. While the provisions
in Section 11(2) of the Act deal with something distinct
from the fact of conviction or acquittal. The appeal under
Section 11(2) of the Act is not against acquittal or
conviction but the propriety of the order passed under
Section 3 or Section 4 of the Act. The intention of the
legislature apparently is to confer such a right both on the
prosecution and the accused. The interest of the
complainant is not totally lost sight of by the legislature. It
is statutorily provided that a revision application can be
filed by the complainant against an order of acquittal. That
being so, the complainant can prefer an appeal under
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Section 11(2) of the Act questioning the propriety of the
order passed under Section 3 or 4 of the Act. The view
expressed by the Patna and the Orissa High Courts is the
correct view, and that of the Calcutta High Court is not
.
correct. The said view is nullified.
10. That brings us to the pivotal issue as to the scope and
limit of interference in an appeal under Section 11(2) of the
Act. Section 11(4) makes the position clear that only the
propriety of the order passed under Section 3 or 4 in
respect of offenders can be dealt with by the appellate
court or the High Court, as the case may be. The appellate
court or the High Court exercising revisional power may
set aside such an order, meaning passed either under
Section 3 or Section 4 and in lieu thereof pass sentence on
such offender. Obviously, the sentence can be imposed only
in respect of the offence relating to which the order under
Section 3 or Section 4 of the Act has been passed. There is
no scope for altering the nature of the offence and for
directing that the accused shall be convicted for another
offence. The High Court was, therefore, not justified in
directing that the conviction of the appellants shall be
under Section 326 IPC. We find that the trial court had
given adequate reasons for passing the order under Section
4 of the Act. That being so, the High Court was not justified
in interfering with the benefit extended by the trial court
under the Act.
12. Unfortunately, this judgment was not brought to the
notice of the learned Appellate Court and the learned Appellate
Court held that the appeal is not maintainable.
13. Learned Appellate Court held that the appeal has to be
filed in a manner provided by the law, and since the proviso to
Section 372 of Cr.P.C. did not enable the complainant to file an
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appeal against the inadequacy of the sentence, therefore, the
appeal does not lie under Section 11 of the Probation of Offenders
.
Act. Mr. B.S. Chauhan, learned Senior Counsel, also adopted the
reasoning of the learned Appellate Court. This reasoning cannot
be accepted. Section 11 (2) contains a non obstante clause and will
prevail over the provisions of the CrPC. Therefore, it is
impermissible to import the provisions of appeal contained in the
CrPC to the Probation of Offenders Act.
14. Learned Appellate Court had dismissed the appeal on
the ground of maintainability alone. Therefore, the matter is
remanded to the learned Appellate Court with the direction to re-
hear the matter on merits.
15. The parties, through their respective counsel are
directed to appear before the learned Appellate Court on
16th September, 2025.
16. The present petition stands disposed of, and so are the
pending miscellaneous applications, if any.
(Rakesh Kainthla)
Judge
25th August 2025
(Chander)
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