Saturday, 11 June 2016

Whether appeal is maintainable if accused is released under probation of offenders Act?

 The respondent was convicted of offences punishable
under the Protection of Children from Sexual Offences Act, 2012
(POCSO), but instead of sentencing him to any punishment, the
learned trial Judge thought it fit to give benefit of the provisions of
Section 4 of the Probation of Offenders Act to him.  Accordingly,
the respondent was directed to be released on his entering into a
bond in the sum of Rs.20,000/­ with one surety, to appear and
receive the sentence when called upon during a period of two
years and in the mean time, to keep the peace and to be of good
behaviour.     It   is   against   the   said   order   that   the   State   of
Maharashtra has filed the present Appeal, purportedly under the
provisions   of   Section   377   of   the   Code   of   Criminal   Procedure
(Code). 
 Section 377 of the Code speaks of an appeal against
the sentence  on the ground of its inadequacy.    In this case, no

sentence has been awarded.   There is, therefore, no question of
'inadequacy   of   sentence'   and   there   is   no   question   of   seeking
'enhancement' of a non­existing sentence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.583 OF 2015
The State of Maharashtra .. Appellant
Versus
Mithilesh Harishchandra Yadav .. Respondent
­­­

­­­
   CORAM :   ABHAY M. THIPSAY, J.
DATED  :    1st  APRIL 2016
Citation: 2016 ALLMR(CRI)2203

­­­

1 The respondent was convicted of offences punishable
under the Protection of Children from Sexual Offences Act, 2012
(POCSO), but instead of sentencing him to any punishment, the
learned trial Judge thought it fit to give benefit of the provisions of
Section 4 of the Probation of Offenders Act to him.  Accordingly,
the respondent was directed to be released on his entering into a
bond in the sum of Rs.20,000/­ with one surety, to appear and
receive the sentence when called upon during a period of two
years and in the mean time, to keep the peace and to be of good
behaviour.     It   is   against   the   said   order   that   the   State   of
Maharashtra has filed the present Appeal, purportedly under the
provisions   of   Section   377   of   the   Code   of   Criminal   Procedure
(Code). 
2 Section 377 of the Code speaks of an appeal against
the sentence  on the ground of its inadequacy.    In this case, no

sentence has been awarded.   There is, therefore, no question of
'inadequacy   of   sentence'   and   there   is   no   question   of   seeking
'enhancement' of a non­existing sentence.
3 The Appeal, as filed by State of Maharashtra is not
maintainable.  The State of Maharashtra shall be at liberty to file
an Appeal, as contemplated u/s.11 of the Probation of Offenders
Act, if so advised.
4 Appeal is dismissed as not maintainable.
(ABHAY M.THIPSAY, J)

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