IMPORTANT POINTS
1. In an appeal u/s 11(2) of Probation of Offender Act only propriety of order passed u/s 3 or 4 of the Act in respect of offenders can be dealt with and there is no scope to alter nature of offence.
2. Defacto complainant can prefer an appeal u/s 11(2) of the Probation of Offenders Act.

JUDGMENT

Arijit Pasayat, J.-Two interesting questions both revolving round Section 11 of the Probation of Offenders Act, 1958 (in short the Act ) are involved in this appeal. Though the questions are essentially of law, a brief reference to the factual aspect would be necessary.

2. Appellants faced trial for alleged commission of offences punishable under Sections 307, 323, 324 and 326 read with Section 149 of the Indian Penal Code, 1860 (in short the IPC ). Learned Sessions Judge, Karauli, Rajasthan, held that though accusations relating to Sections 307, 307 read with Section 149 were not proved against the accused persons, offence of Section 324 IPC was proved against accused-appellant Prithvi Raj while offence under Section 324 read with Section 149 IPC was proved against others. Offence in terms of Section 323 IPC was held to be proved against Tej Raj and offence under Section 323 read with Section 149 was proved against others. Offence under Section 148 IPC was also held to be proved. After hearing the accused persons on the question of sentence, it was noticed that there was no allegation of any earlier involvement in crime against any of the accused persons, the incident was an old one, two of the accused were students and accused Ratan was an aged person. Taking into account all these facts the trial court held that compelling reasons were there for the accused persons to reform in life. Accordingly while imposing sentence the trial court extended benefits under the Act and held that they were to be on probation for two years to keep good behaviour and were to execute personal security of Rs. 3000/- each with similar amount of bail bonds. Each was ordered to pay Rs. 1500/- as compensation, out of which Rs. 7500/- was directed to be paid to injured Radhey Shyam.

3. An appeal purported to be under Section 11(2) of the Act was filed before the High Court by the complainant contending that the benefits of Section 3/4 of the Act were wrongly extended to the accused persons. It is to be noted that an appeal was preferred by the accused persons against the direction for payment of compensation. Same was registered as SB Criminal Appeal No. 458/98 and was dismissed. The High Court held that Section 5 of the Act permitted compensation to be awarded when benefit of Section 4 of the Act was extended.

4. In appeal filed by the defacto complainant, apart from questioning benefits under the Act, correctness of the conclusions regarding nature of offence were also assailed. The High Court was of the view that the trial court was not justified in holding that no offence under Section 307 or 326 was made out. It was held that the accused persons were liable to be held guilty for offence punishable under Section 326 IPC. The matter was remitted to the trial Court to award sentence for such offence.

5. In support of the appeal Mr. L. Nageswara Rao, learned senior counsel submitted that scope and ambit of sub-section (4) of the Act has not been kept in view by the High Court. In appeal filed in terms of Section 11(2) of the Act, Appellate Court or the High Court, as the case may be, has jurisdiction to set aside the order made under Section 3 or Section 4 and in lieu thereof pass sentence according to law. There was no scope for altering the nature of offence. Additionally, it was submitted that defacto complainant has no right to file an appeal under sub-section (2) of Section 11. Strong reliance was placed on the decision of the Division Bench of the Calcutta High Court in Parmal Ghosh v. State of West Bengal and Ors. (1984 Crl. L.J. 1302). There was no appearance for respondent No.1 (complainant).

6. Learned counsel for the State supported the stand of the appellants as regards the scope of adjudication under Section 11(4) of the Act.

7. In order to appreciate the issue involved it would be proper to quote Section 11 so far relevant. The provisions read as:

"11. Courts competent to make order under the Act. Appeal and revision and powers of