The main legal point established in the judgment is the right of appeal under Sec. 11 of the Probation of Offenders Act, 1958, against orders passed under Sec. 3 or Sec. 4, and the limitations on the sentence that can be imposed in such appeals.

( 1 ) THE State has filed this appeal under sec. 377 Cr. P. C.

( 2 ) THE few facts giving rise to this appeal may be narrated briefly as follows: Two accused persons out of whom A-2 is the only person concerned in this appeal as by an order passed by this Court on 16-1-81 the appeal against A-1 was dismissed for non prosecution, were tried by the judicial Magistrate, I Class, Basavakalyan, in C. C. No. 10|3/76 for having committed offences punishable under ss. 457 and 380 r|w 34 of IPC. The learned Magistrate found them guilty of having committed the said offences and convicted them. In regard to the question of sentence to be passed on them, he observed as follows: however, there is no evidence before the Court that there are previous convictions to the accused; that they have committed offences in question for the first time. It is also clear from the records that accused-I in this case has remained in custody for a period of about more than two months and A-2 has remained in custody for a period of about two months and in my opinion this punishment already undergone by accused is sufficient to teach a lesson to them not to repeat the offence in future. Further, keeping in view the ages of the accused and their antecedents i am of the opinion that this is a fit case where the accused may be given benefit of the provisions of S. 4 of the P. O. Act thereby allowing them to reform. themselves instead of sentencing them to jail. Therefore in the light of the above I proceed to pass the following order: the accused are convicted under s. 248 (2) Cripc for the offence under ss. 380 and 457 IPC and instead of being sentenced they are ordered to be released on entering into a bond of Rs. 1000 (rupees one thousand) for a period of one year each, to keep peace and be of good behaviour, failing which shall receive sentence from the court whenever called upon. The State being of opinion that sentence has been passed on the two accused and the sentence passed is inadequate and requires to be enhanced has preferred this appeal under Sec. 377 Cr. P. C.

( 3 ) SRI Mohanreddy H. Sawkar, appearing on behalf of A-2 who is the only respondent as already narrated, through the Legal Aid Society, has raised a preliminary objection that the appeal is not maintainable. The learned State Public Prosecutor appearing for the State contended (that the powers exercisable by this Court under S. 377 Cr. P. C. which provides a right of appeal to the State are wide enough to interfere with the order in question and impose just and adequate sentence on the respondent.

( 4 ) NOW the short question is whether an appeal under Sec. 377 Cr. P. C. as against such an order excerpted above lies in view of the provisions of the Probation of Offenders Act, 1958, (hereinafter referred to as the Act), taking into consideration sec. 377 of the Cr. P. C. 1973 (hereinafter referred to as the new Code ). In the course of this judgment we would be referring to the Cr. P. C. 1898 also as the old Code.

( 5 ) PERUSAL of the provisions of the act can leave no doubt in anyone's mind that they apply only after conviction of a particular person in regard to certain offences as enumerated in ss. 3, 4 and 6 of the Act. S. 6 of the Act particularly deals with an accused aged under 21 years and convicted. But it also says that for the purpose of applying Sec. 6 of the Act the Court has 1o follow the procedure prescribed therein i. e. , under sub-sec. (2) of Sec. 6 of the Act. S. 11 of the Act reads as follows: - 11. Courts competent to make order under the Act, Appeal and revision and Powers of Courts in appeal and Revision: (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High court or any other court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code where an order under Sectio