Probation of Offenders Act, 1958 – Sections 3 & 4 – Code of Criminal Procedure, 1973 – Section 377 (1) – Appeal – Inadequacy of Sentence – An appeal under Section 377(1) of Cr.P.C challenging the grant of benefit of probation will not be maintainable. A statutory legal remedy by way of appeal is provided under Section 11(2) of the Probation of Offenders Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.D. RAJAN, J.
Crl.A.No.625 of 2001 & 1448 of 2003
Dated 22 nd March, 2016
AGAINST THE JUDGMENT IN CC 7/1991 of JUDL.MAGI.OF 1ST CLASS,ANDROTH DATED 08-05-2001
UNION TERRITORY LAKSHADWEEP ADMINISTRATION BY ADMINISTRATOR (CR.NO.4 OF 1990, ANDROTH POLICE STATION).
BY ADVS.SRI.O.BALANARAYANAN SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN
PATTAKKAL SAYED AHAMMED KOYA THANGAL MECHERY, ANDROTT. AND 88 OTHERS
R,R1,3 TO 7,9 TO 39, BY ADV. SRI.MAT.PAI R,R42,44 TO 48,50 TO BY ADV. SRI.MAT.PAI R,58,60 TO 71,74 TO BY ADV. SRI.MAT.PAI R,89. BY ADV. SRI.MAT.PAI R,R1,3-7,9-39 BY ADV. SRI.N.P.SAMUEL
The main challenge that arises in this appeal is that when a Magistrate releases an accused under Section 4 of the Probation of Offenders Act 1958, whether an appeal under Section 377(1) of Code of Criminal Procedure is maintainable ? These appeals have been filed against the judgment of conviction of A1 and acquittal of A2 to A89 in C.C.7 of 1991 of Judicial First Class Magistrate, Androth. The first accused was convicted under Section 143 and 188 of Indian Penal Code (“IPC” in short) and released under Section 4 of the Probation of Offender’s Act and acquitted him for offences section 144, 145, 147, 148, 332, 353 and 506(ii) read with 149 IPC. Accused 2 to 89 were acquitted by the learned Magistrate for offence punishable under Section 143, 144, 145, 147, 148, 188, 332, 353 and 506(ii) read with 149 IPC. Against that judgment Criminal Appeal 625 of 2001 has been preferred by the Administrator, Union territory, Lakshadweep under Section 377 and 378(1) and (3) of the Code of Criminal Procedure (hereinafter referred to as the Code). Against the conviction under section 143 and 188 IPC, first accused preferred Crl.A.1 of 2001 before Sessions Court, Kavarathy which was transferred to this court, and taken on file as Crl.A.1448 of 2003 and both appeals have been heard together. The respondents in Crl.A.625 of 2001 are the accused in C.C No.7 of 1991 of the trial court.
2. The accused were charge sheeted before the Judicial Magistrate of First Class, Androth in C.C.No.7 of 1991 under Section 143, 144, 145, 147, 148, 188, 332, 353, 506(ii) read with 149 IPC. The charge against the accused is that on 23.4.1990 at 13 hours, the accused in prosecution of the common object of committing riot armed with deadly weapons unlawfully assembled inside and outside the Juma Masjid, Androth in violation of the order promulgated by the Executive Magistrate empowered under section 144 of the Code to abstain from the Masjid attached to Darga at a distance of 15 metres. Violating the above direction of law, they remained in the Mosque and its premises and used criminal force against the police personnel deployed for duty and also deterred the executive Magistrate from discharging their duty and pelted wooden reapers, G.I pipes and stones and thereby committed offence. In this incident, Androth police registered a crime and after completing investigation, laid charge before Judicial First Class Magistrate, Androth. Accused No.89 is absconding, hence his case was split up.
3. During trial, prosecution examined PW1 to PW24 and marked Ext.P1 to P4 as documentary evidence. Material objects MO1 to MO28 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. Learned Magistrate acquitted A2 to A90 (except A89) and convicted the first accused under Section 188 and 143 IPC and released under Section 4 of the Probation of Offenders Act. Being aggrieved by that, the 1 st accused preferred Crl.A.1 of 2001 of Sessions Court, Androth. The Administrator, Union territory also filed Crl.A.625 of 2001 against the acquittal of the accused and for enhancement of sentence against A1.
4. After filing these appeals, 18 persons died and the appeal against them being abated under Section 394 Cr.P.C, the union territory is prosecuting the other accused. Section 394 Cr.P.C reads as follows:
Abatement of appeals
(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of her near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation – In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister”.
Once an appeal against an acquittal is admitted by the High Court, it is the duty of the High Court to decide the same, irrespective of the fact that the appellant either does not intend to prosecute it or is unable to prosecute it for one reason or the other. From this section it is clear that an appeal against an acquittal under Section 378 or an appeal for the enhancement of the sentence under Section 377, being abated on the death of the accused and not otherwise.
5. Learned counsel appearing for the union territory contended that the release of the first accused under Section 4 of the Probation of Offender’s Act is illegal. The acquittal of the accused was without considering the evidence in this case. The incident resulted in police firing which culminated in loss of two lives and injuries to police men and some members of the public, the finding of the learned Magistrate was without perusing the evidence. Therefore the acquittal may be set aside, find them guilty and pass appropriate sentence at the same time be prays to enhance the sentence against A1.
6. Learned counsel appearing for the respondents in Crl.A.625 of 2001 including the appellant in Crl.A.1448 of 2003 contended that the order issued under Section 144 of Cr.P.C was not produced in the trial court. The witnesses present there did not identify the accused including A1 during trial. The evidence of official witness alone was relied by the trial court for convicting the first accused. When prima facie no materials are available, the conviction of the 1 st accused is unsustainable in law.
7. In view of rival submission of both parties I think it proper to consider the legal position. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The section may be quoted as follows: