The right of appeal under Section 11(2) of the Probation of Offenders Act is available to both the accused and the prosecution, including a private prosecutor, within the circumscribed limits of the question of propriety of the action taken under Section 3 or Section 4.

ORDER :- The opposite parties who stood their trial for offences under Sections 323, and 325/149 Indian Penal Code were found guilty and convicted thereunder, but instead of any sentence being passed, they were ordered to be released under Section 4 of the Probation of Offenders Act on each of them executing a bond for Rupees 1,000/- to keep peace and be of good behaviour for one year.

2. The prosecution case, in brief, is that on 14-2-67 at about 4.00 p.m., while Kulamoni (P. W. 2) was returning from the house of one Lokenath Patnaik after delivery of certain vegetables, he was waylaid by the accused persons who assaulted him with lathis causing as many as 7 injuries including one on the head of the left fibula with mild degree of displacement of upper fragment. On a report lodged at the P. S. police investigated and ultimately put the accused on trial for offences under Sections 323 and 325/149 Indian Penal Code.

The defence version is that P. W. 2 along with two others obstructed accused Bula from taking their cattle to the kine house and there was mutual assault between him and Bula, during which, P. W. 2 fell down and sustained the injuries. The other accused deny their presence at the place of occurrence. The learned Magistrate who tried the case rejected the defence version, accepted the prosecution case, found the accused guilty of offences under Sections 323 and 325/149, Indian Penal Code and convicted them, as stated above.

3. The present revision has been filed by Rajkishore, who lodged the F. I. R. questioning the propriety of the order passed by the learned Magistrate in resorting to the provisions of Section 4 of the Probation of Offenders Act and releasing the accused on their furnishing bonds instead of awarding appropriate sentences for the offences for which they were convicted.

4. Learned counsel for opposite parties contends that this revision is incompetent in view of the right of appeal provided under Section 11 of the Probation of Offenders Act and this being a State prosecution, the complainant has no locus standi to question the order of the learned Magistrate.

5. The two points that arise for consideration are : (1) Whether in view of the provisions contained in Section 11 of the Probation of Offenders Act, the revision is maintainable and (2) whether on merits, the learned Magistrate was justified in resorting to the provisions of Section 4 of the Probation of Offenders Act.

6. Point No. 1. It is contended by learned counsel for petitioner that the revision is not barred, because firstly, this being a State prosecution, the complainant could not have filed an appeal under Sec. 11 of the Probation of Offenders Act, secondly, the bar under sub-section (5) of Section 439, Criminal Procedure Code is limited only to persons who could have appealed but have not and thirdly, it leaves untouched the jurisdiction of the High Court to exercise its revisional power suo motu, either on report under Section 438, Criminal Procedure Code, on information received from third parties or which otherwise comes to the knowledge of the Court.

On the other hand, it is argued by learned counsel for opposite parties that even in State Prosecutions the private complainant is entitled to prefer an appeal under Section 11 of the Probation of Offenders Act and having not done so, this revision is incompetent. It is further contended by him that sub-section (5) of Section 439, Criminal Procedure Code completely debars entertainment of revision in cases where an appeal lies and has not been filed.

7. The point that arises is whether against an order passed under Section 4 of the Probation of Offenders Act in a State prosecution the right to prefer an appeal contained in Section 11 of that Act is available only to the accused or the prosecution as well, and in any case whether a private complainant also can prefer an appeal.

8. Section 11 of the Probation of Offenders Act, so far it is relevant, stands thus :-

"11 (1). Notwithstanding anythi