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Discussion on applicability of Probation Act vis a vis Section-360 CrPC and procedure prescribed therefor or related thereto Despite availability of all the statutory provisions and several judgments of Hon'ble superior courts, probation orders are in use to very limited extent. On the other hand, different state governments normally is maintains a cadre of several probation officers in terms of the Rules. Clearly they are not being used. n such situation, not only the poor people are being denied the social soci al benefits thereby curtailing the chances of reformation !the prime goal of present criminal jurisprudence in ndia" but also #ovt. is $asting finance on maintaining maintaining the probation officers cadre in $hatever form they might exist. %.%. &ection()% Cr*C is mandatory and provides that unless special reasons are recorded, the Court is bound to deal $ith the offenders under the beneficial provisions including the *robation of Offenders +ct, %-. /o$, one can hardly say that Delhi has set any example in this regard. Delhi D elhi is also rarely found to be follo$ing this specific mandate of the *arliament. + bare loo0 at the judgments of the trial courts of Delhi goes to sho$ the obvious. !1rial Courts 2udgments are available on the official $ebsite of Delhi District Courts i.e. delhicourts.nic.in". %.3. 1here cannot be any doubt that offences excluding life imprisonment and death can be dealt $ith under the *robation of Offenders +ct, %- unless specific reasons are given under &ection()% Cr*C. Ho$ever, the same $ill come $ith some further exceptions as carved out under u nder section% thereof and by certain judgments of Hon'ble &upreme Court.
Applicability of Probation Act viz a viz Section-360 CrPC: 3. 4ith the above thin0ing in mind, $e may consider the issue of applicability of *robation of Offenders +ct, %- in Delhi. 5or this purpose, $e $ill need &ection()6 Cr*C and &ection% *robation of Offenders +ct, %-. 7oth the statutes deal $ith almost similar benefits but the later deals it in a great detail and for greater benefits. Can both the provisions coexist in the same area is a 8uestion 8u estion of significance. &ection 9 % of *robation of Offenders +ct reads as under:
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;&ection -)3 of the Code not to apply in certain areas. &ubject to the provisions of section %, section -)3 of the Code shall cease to apply to the &tates or parts thereof in $hich this +ct is brought into force.< 3.%. 1he *arliament has enacted the *robation +ct and &ection %!(" thereof stipulated that it shall come into force in a &tate on such date as the &tate #overnment may by notification in the official ga=ette appoint. 7y a notification in the #a=ette of ndia dated 3(.%3.%)6 this +ct $as made to apply and enforceable in the $hole &tate of Delhi $.e.f. 3.%3.%)6. 3.3. &ection % of this +ct lays do$n that, subject to the provisions of &ection %, &ection -)3 of the Criminal *rocedure Code, % !hereinafter referred to as >Old Code'" shall cease to apply to the &tates or parts in $hich the *robation +ct is brought into force. Old Code came to be repealed and replaced by the Code and &ection ()6 of the Code is the corresponding provision to &ection -)3 in the Old Code. 3.(. n %?@, the Code of Criminal *rocedure $as recast and $as $ as freshly enacted as the Code of Criminal *rocedure, %?(. t contains &ection ()6 that $as framed by consolidating the provisions of &ection -)3!%", (6, -)3!%"+, -)3!3", -)3!(", -)3!@" -)(!%", -)(!3", -)@!%" A -)@!3" of the old Code. &ubsection %6 of &ection ()6 of the Code made it clear that the provisions of that &ection $ould have no effect on the provisions of the +ct. 3.@. 7ut &ection ()6 in its ne$ form gave rise to a little doubt. &ection ()6 of the ne$ Code $as not simply a reproduction of &ection -)3 of the earlier Code. t incorporated &ection (6 as $ell as &ections -)3!%"+. -)( and -)@ !$ith some minor changes" of the earlier Code. 3.-. + 8uestion, therefore, arose $hether &ection % of the +ct $ould apply e8ually to &ection ()6 of the ne$ Code. 1he controversy $as set at rest at an early stage and there appears to be a judicial consensus on the issue. *ractically, all the High Courts too0 the vie$ that &ection ()6 of the ne$ Code shall have no application in &tatesBareas of a &tate $here the +ct had come into force. &ome of the decisions of the different High Courts, on the point, are as follo$s: !i" #urbachan &ingh v. &tate of *unjab%6 Cri 2 @%? !D.7. *unjab A Haryana High Court"
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!ii" *ush0ar Raj v. 1he &tate of *unjab %% Cri 2 %%6 !&.2. ! &.2. *unjab A Haryana High Court" !iii" &tate of *unjab v. Harbans al%( Cri 2 %( !&.2. *unjab A Haryana High Court" !iv" Eustafa &hei0h v. alchand &hei0h %- Cri 2 %%( !D.7. Calcutta High Court" !v" E. &omashe0har v. &.+. &ubbaraju % Cri 2 %)) %) ) !&.2. Farnata0a High Court" !vi" &tate of Himachal *radesh v. al &ingh %6 Cri 2 ?3( !5.7. Himachal *radesh High Court" !vii" &unil Fahar v. &tate of 7ihar %3 !3" 72 ?- : %3 Cri 2 ()@?. 3.). + 8uestion may also arise here $hy then $as &ection ()6 retained at all in the Code in vie$ of the provisions of the +ct, especially &ection % of the +ct. 1he ans$er is obvious. 1ill %?(?@ $hen the ne$ Code $as framed fr amed and it came into force there $ere certain poc0ets still left in the Country e.g. some parts of 4est 7engal $here the +ct had not come into force. n those areas, in the absence of &ection ()6 of the Code, the Courts $ould have been left $ith no means to release rele ase a convict, in appropriate cases, on probation of good conduct etc. 7ut apparently &ection ()6 of the Code $as intended to have a limited application in those areas $here $ here the +ct $as not applicable. 1he position $as 8uite different in Delhi and in most other parts of the Country $here the +ct had already come into i nto force and had rendered &ection -)3 of the % Code inapplicable. 3.?. s there any scope of vagueness that section-)3 appearing in section% se ction% of *robation of Offenders +ct has to be read as section()6G thin0 '/O'. 3.. 1he impact of the above provisions, in vie$ of o f the *robation of Offenders +ct and the ne$ enactment of the Criminal *rocedure Code re8uires and has to be considered in the light of &ection of the #eneral Clauses +ct $hich reads as under: und er: ;. Construction of references to repealed enactments. !%" 4here this +ct, or any Central +ct or Regulation made after the commencement of this +ct, repeals and re enacts, $ith or $ithout modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references r eferences to the provision so reenacted. !3" 4here before the fifteenth day of +ugust, %@?, any +ct of
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*arliament of the nited Fingdom repealed and reenacted, $ith or $ithout modification, any provision of a former enactment, then references in any Central +ct or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re enacted.< 3.. n 7ishnu Deo &ha$ v. &tate of 4est 7engal !+R %? &C )@", the Hon'ble &upreme Court ruled that &ection ()6 of the Code reenacts in substance &ection -)3 of the Old Code. 1o 8uote from the judgment: ;&ection ()6 of the %?( code reenacts, in substance, su bstance, &ection -)3 of the % Code....< 3.%6. Conse8uently, $e have to read section()6 of ne$ Cr*C in &ection% of *O +ct instead of &ection-)3 of the old Code. 3.%%. Hon'ble High Court of Delhi $as someho$ of different vie$. n Criminal +ppeal /o. @?% of % dated 3.%6.3663, the Hon'ble Delhi High Court $as of the vie$ that section()6 Cr*C $as available, though it did not consider the provisions of &ection % of the +ct. Ho$ever, decision of the Hon'ble Delhi High Court $as challenged before the Hon'ble &upreme Court and the issue is no$ conclusively settled beyond any further debate or discussion by the said sa id decision of the &upreme Court in &tate 1hrough &.*., /e$ Delhi vs Ratan al +rora !366@" ! 366@" @ &CC -6, $herein the &upreme Court examined the provisions of the +ct and &ection ()6 of the Code and observed A held as under: ;Euch stress $as laid on the nonamendment of the *robation +ct $hich referred to the old +ct and not the present +ct. t $as submitted su bmitted that since there has been no corresponding change in the *robation +ct, therefore, the provisions of said +ct cannot be applied to cases under the +ct. 1he 1 he argument overloo0s the principles underlying &ection of the #eneral Clauses +ct. 4hen an +ct is repealed and re enacted unless a different intention is expressed by the legislature, the reference to the repealed +ct $ould be considered as reference to the provisions so reenacted. r eenacted. IIIII Conse8uently, the references to &ection -)3 of Old Code in &ection % of the *robation +ct and to &ection -!3" of the Old +ct in &ection % of the *robation +ct, respectively have to be inevitably read as references to their corresponding provisions in the ne$ly enacted Code and the +ct. Conse8uently, for the conviction
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under &ection %(!3" of the +ct the principles enunciated under the *robation +ct cannot be extended at all in vie$ of the mandate contained in &ection % of the said +ct. &o far as &ection ()6 of the Code is concerned, on and from the date date of extension and enforcement of the provisions of the *robation +ct to Delhi po$ers under &ection -)3 of the Old Code and after its repeal and replacement re placement po$ers under &ection ()6 of the Code, cannot be invo0ed or applied at all, as has h as been done in the case on hand. 1he vie$ ta0en to the contra is not legally sustainable and cannot have our approval.< 3.%3. Jven further in yet another decision, the Hon'ble &upreme Court in Chhanni v. &tate of .*. !366)" 3 &CC !Cri" @)) observed and held as under: ;4here the provisions of the *robation +ct are applicable the employment of &ection ()6 of the Code is not to be made. n cases of such application, it $ould be an illegality resulting in highly undesirable conse8uences, $hich the legislature, $ho gave birth to the *robation +ct and the Code $anted to obviate. Ket the legislature in its $isdom has obliged the Court under &ection ()% of the Code to apply one of the other beneficial provisions be it &ection ()6 of the Code Code or the provisions of the *robation +ct. t is only by providing special reasons that their applicability applicability can be $ithheld by the Court. 1he comparative elevation of the provisions of the *robation +ct are further noticed in subsection!%6" of &ection ()6 of the Code $hich ma0es it clear that nothing in the said &ection shall affect the provisions of the *robation +ct. 1hose provisions have a paramountcy of their o$n in the respective r espective areas $here they are applicable. 1$o statutes $ith such significant differences could not be intended to coexist at the same time in the same area. &uch coexistence $ould $ou ld lead to anomalous results. 1he intention to retain the provisions of &ection ()6 of the Code and the provisions of the *robation +ct as applicable at the same time in a given area cannot be gathered from the provisions of &ection ()6 or any other provision of the Code. 1herefore, by virtue of &ection !%" of the #eneral Clauses +ct, $here the provisions of the +ct have been brought into force, the provisions of &ection ()6 of the Code Code are $holly inapplicable. Jnforcement of *robation +ct in some particular area excludes the applicability of the provisions of &ections ()6, ()% of the Code in that area.< 3.%(. n the light of above discussion, there remains no doubt that &ection()6 Cr*C does not have any application in Delhi. 1herefore, all the probation orders ar e
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re8uired to be passed only under the provisions of *robation of Offenders +ct, %- $hich is in force in Delhi since 3.%3.%)6.
Procedure of Probation: (. t is no$ at this stage the further problem arises as to ho$ to follo$ the provisions prov isions of the +ct. &ituations may be classified into some broad categories: i. Court does not invo0e the beneficial provisions of probation. ii. 1he Court does $ait for an application to be made by the accused for grant of benefit of probation. iii. 1he Court does not indicate the provisions under $hich it declined or granted the benefit of probation. iv. 1he Court decides the issue of probation $ithout calling any report from a probation officer. v. Jven after grant of probation, bonds are are not executed in prescribed forms. vi. astly, the postrelease events are not supervised. (.%. 1he first three categories $hich can be grouped together have an ans$er $hich is more than simple. &ection()% Cr*C is mandatory and does not leave any scope for the Court not to invo0e the beneficial provisions. /eedless to say that for recording its special reasons, the Court has to say that it cannot deal the offender u nder any of the beneficial provisions available therein. +nd since this special reason is mandatory, the Court can not abdicate its obligation on the ground that the accused never made any application for probation. &ection ()% Cr*C does not tal0 about the initiatives ta0en by the accused, but it casts an obligation on the Court to either invo0e the beneficial provisions or to provide it special reasons for not doing so. 5urther, in the light of above discussion, it is clear that the provision prov ision $hich a Court can invo0e for granting probation is to be found under u nder *robation of Offenders +ct %-. (.3. /o$, the second group can include fifth and sixth categories enumerated above. $ill discuss about it a little later. 5or the present, focus of prime importance is the fourth category $hich deals $ith the probation report.
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(.( Rarely, beneficial provisions of *robation of Offenders +ct are invo0ed. +nd unfortunately, $ithout follo$ing the due process of la$ enshrined in the +ct. &ection@!3" of the +ct $ill be of some significance $hich reads as under: ;@!3" 7efore ma0ing any order under sub section !%", the court shall ta0e into consideration the report, if any, of the probation officer concerned in relation to the case.< (.@. 1he offender can only be released on probation of good g ood conduct under section @!%" $hen the Court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, o ffender, that in a particular case, the offender should be released on probation of good conduct and from &ection@!3" it is clear that if Court $ants to ma0e an order of probation, it must call a report from the probation officer. 1he section itself is clear that before applying the section, the Eagistrate should carefully ta0e into consideration the attendant circumstances. Jxpression 'shall' leaves no doubt that it is mandatory. Ho$ever, the other expression 'if any' may hint that the Court is not obliged to call any such report and it is only obliged to consider such su ch report if the same is available before the Court. 5urther &ection)!3" of the +ct employs similar terms but $ith specific phraseology of calling the report. +s such there $as some confusion in this area. (.-. 1a0ing note of some difference of language uBs)!3" and @!3" of the +ct, Hon'ble 7ombay High Court held that calling of report of $as not obligatory before passing probation orders. 1he case $as the &tate Of Eaharashtra vs 7odya Ramji *atil %? Cri2 @%%. 7ut another decision reported as &tate v. /aguesh #. &het #oven0ar and +nr., +R !%?6" #oa @ $as in contrary contrary terms. Other High Courts $ere also on varying terms on this score. (.). &ection@!3" $as elaborately dealt $ith in the case of R. Eahalingam v. #. *admavathi and +nr., !%?" Crl. 2 /OC 36 Ead., the Court therein observed as under : Lf any report is filed by the probation officer, the Court is bound to consider it. Obtaining such a report of the probation officer is mandatory since the subs.!%" of &. @ says that the Court shall consider the report of the probation officer. 4ords Lif anyL do not mean that the Court need not call for a report from the probation officer. 1he $ords Lif anyL $ould only cover a case $here not$ithstanding such re8uisition, the probation officer for one reason or other has not submitted a report. 7efore deciding to act under &. @ !%", it is mandatory on the part of the Court to call for a report from
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the probation officer and if such a report is received, it is mandatory on the part of the Court to consider the report. 7ut if for one reason or the other such a report is not forthcoming, the Court has to decide the matter on other materials available to it. n the instant case, the Eagistrate passed order releasing the accused on probation $ithout ta0ing into consideration their their character. Held, the re8uirement of &. @!%" $as not fulfilled and therefore the case remanded.L (.?. 5ortunately, the above paragraph $as 8uoted and relied upon by the Hon'ble &upreme Court in E.C.D vs &tate Of Delhi +nd +nr 366- &CC!Cri" %(33. n the very same decision, the Hon'ble &upreme Court also relied upon /aguesh #. &het!supra". Clearly, vie$s contrary to the same can not be accepted. (.. /o$, the Decisions of Hon'ble High Court of Delhi may be noted. n H.*. Maid vs *arveen &oni A Ors, 6 !%" D1 33%, it $as held: ;Ho$ever, before parting $ith this judgment, it appears desirable to state that the report of the *robation Officer must invariable be called before releasing any accuse d on probation under &ection @!%" of the *robation of Offenders +ct, for clearly there is no source of collecting necessary information re8uired under &ections ( or @ of the +ct. &uch a report $ould certainly cer tainly help in assessing the antecedents, the family bac0ground, commission of similar crime!s" earlier and the expediency of releasing on probation. 1he expediency of releasing the accused, can be decided only on perusal of the report of the *robation Officer for $ant of any other source of information. 1his Court is not oblivious to the time $hich is spent in obtaining report and difficulties faced in obtaining such reports especially in absence or non availability of the *robation Officer in cases of the accused $ho have migrated to Delhi and there is no agency to submit re8uisite report or $hen they do not submit report. +s far as possible, the report of the *robation Officer should be insisted upon. Chief *robation Officer Delhi also must ensure that the *robation Officers are made readily available and give a report $ithin a $ee0 by ma0ing an appropriate arrangement.< (.. 7ut in a later decision, the Hon'ble High Court of Delhi $ithout calling for the report of probation officer granted probation to the accused i.e. in Criminal Revision *etition /o. %- of 366@ decided on 3).6(.366@. Ho$ever, the said decision $as challenged before the Hon'ble &upreme Court and the decision d ecision $as overruled in
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E.C.D vs &tate Of Delhi +nd +nr 366- &CC!Cri" %(33 $herein the Hon'ble &upreme &u preme Court formulated the follo$ing 8uestion: ;n the above bac0ground, t$o 8uestions of la$ arise for consideration by this Court : %. 4hether the High Court $as correct in extending the benefit of the *robation of Offenders +ct, %- to the accused respondent $ithout calling for a report from the +uthorities relating to the conduct of the respondent as per &ection @ of the +ct. IIIII< 1he Hon'ble &upreme Court discussed the provisions and relied upon /aguesh #. &het!supra" and R. Eahalingam!supra" and concluded as under: ;1he Court is bound to call for fo r a report as per &ection @ of *O7 +ct but b ut the High Court has failed to do so although the Court is not bound by the report of the *robationer Officer but it must call for such su ch a report before the case comes to its conclusion. 1he $ord LshallL in subsection !3" of &ection @ is mandatory and the consideration of the report of the *robationer Officer is a condition precedent to the release of the accused as reported in thecase of &tate v. /aguesh #. &het #oven0ar #ov en0ar and +nr., +R !%?6" #oa @ and a release $ithout such a report $ould, therefore, be illegal.< (.%6. 4ith the decision of Hon'ble &upreme Court given in E.C.D vs &tate Of Delhi +nd +nr!supra", there remains no doubt that before passing any probation order, the Court is duty bound to call a report from probation officer under section@!3" of the *robation of Offenders +ct. The stae of probation report: @. /o$ the 8uestion is about the stage at $hich such report should be directed to be called. @.%. Delhi has made the *robation of Offenders Rules %)6 $hich $ere notified vied 5.@!%(@"B-D&4!ii". Rule3) thereof reads as under: ;3). Jn8uiry into the character and antecedents. !%" 1he court may direct a *robation Officer !as in 5orm %%6" to in8uire into the character and antecedents of the accused, the circumstances in $hich the offence $as committed and other matters and submit a report on a prescribed date, $hich should ordinarily be the expected date of delivering judgment. 1he court shall consult the report only after
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finding the accused guilty. f he is not found guilty, the report should be returned to the *robation Officer concerned for record for purposes of future reference. !3" 1he court may direct the *robation Officer to ma0e any further investigations, and $here re8uired, to have a medical or psychiatric examination of the offender, and report to the Court for enabling it to decide action to be ta0en under &ections (, @, -, ) and ? of the +ct.< @.3. 1he rule re8uires that if the court is calling a report from the probation officer, it should be available at the time of delivery of judgment. 5or this, the direction has to come before the date fixed for judgment. 1he natural precondition $ould be that the Court should issue a direction to the *robation Officer at the time of conclusion of the final arguments if it is going to reserve the judgment and in other cases at any time prior to that stage !sometimes it happens that a Court pronounces a judgment directly after hearing the arguments". @.(. Ho$ever, *robation Officer may file the report before the date of delivery of judgment if no specific direction regarding date has been made by the Court. Ho$ever, in such cases, the report should s hould be filed in sealed cover. 1his may be possible by virtue of Rule%) $hich deals $ith the duties of *robation Officer. @.@. 1he concept of probation applies bet$een t$o stages of a criminal trial i.e. +fter finding the accused guilty and before deciding about the sentence. *robation is not a substituted sentence but it is based upon the concept of deferred sentencing policy limited to a three years period. @.-. &ection@!%" and &ection!(" of *robation of Offenders +ct clarify the concept of deferred sentencing vi= a vi= probation. &ection@!%" so far as relevant reads as under: ;.......the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, $ith or $ithout sureties, to appear and receive sentence $hen called upon during such su ch period not exceeding three years.............< years........... ..< &ection!(" so far as relevant reads as under:
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;!(" f the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forth$ith !a" sentence him for the original offence.....< @.). t becomes clear that if concept of probation is invo0ed, the sentencing procedure cannot be made applicable unless there is a breach of condition of bond. +nd if probation period is successful, there can not be any 8uestion of sentencing. sentencing. On the other hand Rule3) clearly provides that probation report can only be consulted by the court if it finds the accused guilty other$ise the same shall be returned to the *robation Officer. 5rom the above, the follo$ing stages become clear: i. 1he court shall issue a direction dir ection to the probation officer to submit its report and this direction should be issued normally at the conclusion of final arguments ii. 1he probation report should normally be submitted in the Court on the date fixed for delivery of judgment iii. 1he Court should consult the probation report only $hen it finds the accused guilty iv. 1hereafter, the Court should decide mandatorily as to $hether it is going to proceed to deal $ith the case under *robation of Offenders +ct and if not it should provide its special reasons as re8uired uBs()% Cr*C v. 1he court can not give benefit of probation $ithout calling a report report from the *robation Officer and also it can not decline the same $ithout such report for obvious reason that the report $ill compulsorily available $ith the Court at the time of pronouncement of judgment vi. f the Court gives benefit of probation, probation, no sentence should even be discussed vii. 1he Court then should complete the postgrant formalities.
!hat are the post-rant for"alities# -. 1he accused has to satisfy s atisfy the court about fixed place and occupation of sureties sur eties and himself as the case may be. 1his is clear from proviso appended to &ection@!%" of the +ct $hich reads as under:
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;*rovided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over $hich the court exercises jurisdiction or in $hich the offender is li0ely to live during the period for $hich he enters into the bond.< -.%. 1hen the accused and his surety su rety has to execute bonds of good behavior be havior in 5orm M appended to the *robation of Offenders Rules %)6. 1he form is specifically provide therefore one can not use any other form available in the mar0et or other$ise. -.3. 1he Court may also direct the accused accu sed to pay compensation and costs to the victims under section- of the *robation of Offenders +ct. -.(. 1he Court during the probation period may also be re8uired to act upon applicationBreport of *robation Officer moved under section A of the +ct. Appeal aainst order of Probation: ). 1here has been certain confusion in respect of status of order of probation. 1he 8uestion is can an appeal lie against any such orderG &uch problem emerged due du e to tradition i.e. unless a sentence is passed, accused can not ma0e any appeal. 4hereas this is not the position in la$. + bare loo0 at section%% of *robation of Offenders +ct $ill clarify the position. &ubsection!3" thereof reads as under: ;!3" /ot$ithstanding anything contained in the Code, $here an order under section ( or section @ is made by any court trying the offender !other than a High Court", an appeal shall lie to the court to $hich $ hich appeals ordinarily lie from the sentences of the former court.< ).%. t becomes amply clear that even if a trial court passes an order of probation, an appeal is maintainable and that too in the same court $here regular regu lar appeal $ould have been preferred against a sentence passed by that trial court. ).3. 4hat is interesting to note is the party neutral approach of appeal in cases of probation orders. Eeans, if a trial court grants probation to the accused, then the accused can prefer an appeal to challenge ch allenge his conviction and the prosecution !or complainant as the case may be" can move an appeal to challenge the grant of probation irrespective of the fact that the case $as instituted on a police repor t or on a private complaint. &ection(?3 to (? Cr*C can not create a bar against such appeal for a simple reason that &ection%%!3" of the +ct is having a nonobstinate
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clause vi= a vi= Cr*C. 1he language of &ubsection !3" of &ection %% seems to be comprehensive, flexible and unrestricted as to the person $ho $ ho can prefer an appeal. 1his being so, there may be no justification for confining the right of appeal conferred under &ection %%!3" only to the accused accu sed on the one hand and the &tate on the other in &tate prosecutions, but it must be construed that the privilege of filing an appeal conferred nder &ection %%!3" is available to a private prosecutor as $ell. ).(. n the appeal preferred against order of probation, the appellate court can set aside such order and pass a sentence on the accused. t is clear from subsection!@" of &ection%%. t reads as under: ;!@" 4hen an order has been made under section ( or section @ in respect r espect of an offender, the +ppellate Court or the High Court in the exercise of its po$er of revision may set aside such order and in lieu thereof pass sentence on such offender according to la$: *rovided that the +ppellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by $hich the offender $as found guilty.< ).@. On the other hand if prosecution prefers an appeal against ac8uittal and appellate court finds the accused guilty or if the accused prefers an appeal against sentence and the appellate court upheld the conviction, then the appellate court may also exercise the po$er to grant probation to the accused not$ithstanding anything in the Cr*C. t becomes clear from &ection%%!%" of the +ct $hich reads as under: ;!%" /ot$ithstanding anything contained in the Code or any other la$, an order under this +ct may be made by any court empo$ered to try and sentence the offender to imprisonment and also by the High Court or any other court cou rt $hen the case comes before it on appeal or in revision.< ).-. + further situation may also be contemplated. 1rial court passes a sentence and accused files an appeal. 1he appellate court upheld the conviction and sentence. 1he accused moves a revision petition. Jven then the Hon'ble High Court can pass an order of probation by virtue of &ection%%!%" of the +ct. ).). 1here are other several situations related to appeal and revisions. 7ut more on that in some other paper to be $ritten at some stage. 5or the time being, the above discussion is sufficient.
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?. On the above detailed lines, a proceeding under *robation of Offenders +ct %- can be completed. IIIIIIIIIIIIIIIIIIII . t is made clear that the entire discussion revolves r evolves around the mandatory duties and responsibilities and has not touched upon the discretionary field i.e. the offences for $hich probation can be granted and those for $hich it can not be granted. . Discussion concluded.
