The central legal point established in the judgment is that the character of the accused must be considered before releasing them on probation under the Probation of Offenders Act, and the failure to do so can result in the setting aside of the probation order.

1. - The complainant-victim has filed present appeal to assail the order passed by Additional Sessions Judge, Sumerpur whereby respondents were released on probation under the provisions of Probation of Offenders Act, 1958.

2. Briefly stated that appellants were tried by the Court of Additional Sessions Judge, Sumerpur for offence under Secs. 308, 148, 447, 323, 325 read with Section 149 IPC. The Court below granted benefit of doubt to the respondents for an offence under Sec. 308 IPC, however held the appellant guilty of offence under Sec. 148, 323, 325 read with Section 149 and 447 IPC

3. Having heard learned counsel on question of sentence the trial Court decided to release accused respondent on probation for a period of three years. Counsel appearing for theapplicant-appellant/complainant/victim has submitted that it was incumbent for the Court below to consider character of the accused respondents before releasing them on probation. Counsel for the applicant appellant has relied upon Section 4 of Probation of Offenders Act 1958 which specifically state that the Court before releasing the accused on probation has to take into account nature of the offence and character of the offenders.

4. Counsel for the applicant-appellant has referred to the additional affidavit filed in this Court in pursuance of the order dated 7.09.2012 and submitted that accused respondents were facing trial in various cases for different offences at the relevant time. Furthermore no opportunity was granted to the applicant-appellant-complainant to prove that character of respondent is such that they are not entitled to probation.

5. Counsel appearing for the respondent no. 2 has submitted that the present appeal has been filed under Sec. 372 of the Cr.P.C. and hence same is not maintainable. It is submitted that the provisions of Probation of Offenders Act 1958 provide filing of an appeal against the order of probation. It is submitted that since appeal has not been filed under the provisions of Probation of Offenders Act, hence the present appeal is liable to be dismissed.

6. Giving due consideration to the submission advanced by counsel for the respondent this Court is of opinion that it is true that Section 11 of Probation of Offenders Act 1958 provide for an appeal, yet technicalities cannot triumph over the substantial justice. Non mentioning of a correct Section will not debar the rightful claimant from the due relief, hence, the present appeal is treated as an appeal under Sec. 11 of the Probation of Offenders Act 1958.

7. A perusal of the impugned judgment reveal that due consideration has not been granted by the Court below to the character of the accused respondent before releasing the respondents on probation. It was necessary for the Court to afford opportunity of hearing to the prosecution, complainant/victim and also to the accused at the time of consideration of sentence to determine the character of the accused, who were supposed to be released on probation. In the additional affidavit filed, counsel for the applicant-appellant has furnished a list of cases where accused applicant are facing trial.

8. There is a marked difference between Section 360 of the Code of Criminal Procedure and Section 4 of the Probation of Offenders Act 1958. Both the provisions operate in different realm and the standards to be applied for releasing accused on probation under both Sections are different. Whereas Section 360 of the Code of Criminal Procedure require that Court should take previous conviction into consideration. Section 4 of the Probation of Offenders Act requires that Court should take character of the accused into consideration.

9. The needful, to consider the character of the accused has not been done by the Court below as no opportunity was afforded to the prosecution and complainant-victim.

10. Consequently, the order whereby accused respondents were released on probation is set aside. The matter is remitted back to the Court below to