K. Padmanabhan Nair, J.
1. The State/complainant In Sessions Case 80/ 1996 on the file of the Sessions Court, Kollam is the appellant in this appeal. The respondent was charge sheeted in Crime No. 313/1995 of Kottiyam Police Station alleging that he committed an offence punishable under Section 302 of Indian Penal Code.
2. The prosecution case was that at about 8.20 a.m. on 21-11-1995 the respondent committed the murder of one Remanan with the intention and knowledge that his act was likely to cause the death of Remanan. It was alleged that the respondent stabbed Remanan with a knife on the left side of his back and when Remanan turned round, the respondent again stabbed him on the right side of his chest. The victim succumbed to the injuries.
3. PW-2 (H. Rajan) gave Ext. PI F. I. statement before PW-8, (S. S. Firoz) the Sub-Inspector of Police who recorded the same and registered Ex.Pl(a) First Information Report. The subsequent investigation was conducted by PW-9, (K. A. John) the Circle Inspector of Police. After the investigation was over, final report was laid before the Judl First Class Magistrate-II, Kollam. The learned Magistrate committed the case to the Court of Session. When the accused appeared before the learned Sessions Judge, charge under Section 302 was framed against him after hearing both sides. He pleaded not guilty to the offence alleged against him.
4. On the side of the prosecution 10 witnesses were examined as PWs-1 to 10. Exts. P1 to P 12 were proved and marked. M.Os 1 to 9 identified. PWs-1 to 3 are the eye-witnesses. PW-4 prepared Ext.P2 plan. He proved the same. PW-5 took the injured to the hospital in his autorikshaw. PW-6, the doctor examined Remanan and issued Ext.P3 wound certificate. PW-7 conducted autopsy on the dead body of Remanan and issued Ext.P5 post-mortem examination certificate. PW-8 registered Ext.P1 as F.I.R. PW-9 prepared Ext.P7 inquest. He conducted part of investigation also.
5. After the prosecution evidence was over, the respondent was questioned under Section 313(1)(b), Cr.P.C. He denied all the incriminating circumstances brought against him. Since no grounds were made out to acquit the accused under Section 232, Cr.P.C., he was called upon to enter on his defence. No defence evidence was adduced Exts. Dl to D3 were proved and marked. The learned Sessions Judge on appreciation of the evidence found that the respondent caused the death of Remanan at about 8.20 a.m. on 21-11 -1995 but he was not guilty of the offence under Section 302 and acquitted him of that offence. The respondent was found guilty of a lesser offence punishable under Section 304, Part II of Indian Penal Code. The accused was aged 18 on the date of commission of offence and aged 20 at the time of trial. The learned Sessions Judge invoked the provisions of Section 3 of the Probation of Offenders Act, 1958, released the respondent on probation of good conduct for a period of three years on executing a bond for Rs. 10.000/-with two solvent sureties to the like sum on each surety being a close relative of the respondent and also a stipulation made that the respondent shall appear and receive sentence as and when called for during the said period of three years. It was also ordered that respondent shall be under the supervision of the District Probation Officer, Kollam. The respondent was also directed to pay an amount of Rs. 25.000/- by way of compensation to the legal heirs of deceased Remanan. The respondent did not file any appeal challenging the conviction imposed on him by the learned Sessions Judge. 6. The State had filed this appeal challenging the adequacy of the sentence alone. When the matter came up for hearing before the learned single Judge the learned public prosecutor raised two contentions:--
i) The invocation of the provisions under Section 4 of the Probation of Offenders Act was a misuse of that provision.;
ii) If the evidence on record is properly appreciated what is proved is an offence under Section 302 and not an offence punishable under Section 304, Part II and hence the respondent is liable to be convicted for an offence under Section 302 of Indian Penal Code.
7. The learned Counsel for the respondent contended that in this appeal this Court can consider the inadequacy of sentence alone. The learned single Judge held that when the State files appeal challenging the finding of the Court below and the facts are placed before the High Court after giving opportunity to the accused, the Court can look into the entire matter and apply its power available as per the provisions of the appeal under the Code of Criminal Procedure. It is further held that the entire evidence can be re-appreciated by the High Curt in the appeal. The: learned single Judge referred the , matter to be heard and decided by a Division Bench, so that both the prosecution and the accused/respondent will get an opportunity of presenting the entire matter and sufficient sentence could also be passed as the matter is in appeal. Accordingly, this matter was referred and posted before this Court for hearing.
8. The cause title of the appeal memorandum shows that the appeal was filed under Section 378(3) of the Code of Criminal Procedure. Section 378(3) provides that no appeal under Sub-section (1) or (2) shall be entertained except with the leave of this Court. Section 378 of the Crl. Procedure Code deals with appeal in case of acquittal. Though the respondent was acquitted of the offence charged under Section 302, I.P.C. in the appeal memorandum there is no challenge against that finding. A reading of the entire appeal memorandum shows that the grounds of appeal are confined to the inadequacy of the sentence imposed on the respondent alone and there is no challenge against the acquittal of the accused of the offence under Section 302 of I.P.C. The grievance of the State in this appeal is that after having found that the respondent had committed an offence punishable under Section 304, Part II of Indian Penal Code the learned Sessions Judge ought, not have released the respondent under Section 4 of the Probation of Offenders Act but adequate sentence ought to have been imposed. So, this is an appeal specifically falls under Section 377(1) of Criminal Procedure Code. Section 377 of Criminal Procedure Code deals with power of the State Government to file an appeal challenging the sentence on the ground of inadequacy alone before the High Court. In a case tried by the Magistrate also the appeal against inadequacy of sentence, is to be filed before this Court and not before the Sessions Court. In an appeal filed under Section 377, Cr.P.C. the State can challenge only the adequacy of sentence. The distinction between an appeal filed under Sections 377 and 378 is that to maintain appeal under Section 377 the State need not obtain leave of the Court whereas an appeal against acquittal can be entertained only with leave of this Court. Section 377 of Criminal Procedure Code 1973, introduces news right of appeal which was not earlier available under the old Code. By Section 377 a right of appeal against the inadequacy of sentence awarded by the Court below has been conferred on the State. But this section has not taken away the suo motu power of revision of the High Court. Section 397 read with Section 401 of Criminal Procedure Code preserve the revisional power of the High Court. The complainant can also file a revision petition against inadequacy of sentence.
9. In this particular case, the respondent was found guilty and convicted. Instead of sentencing the respondent at once, the learned Sessions Judge released him under Section 4 of the Probation of Offenders Act on probation for good conduct for a period of three years on execution of a bond for Rs. 10,000/- with two solvent sureties for the like sum, one each surety being a close relative of the respondent and stipulation is made that he shall appear and receive sentence as and when called for during the said period of three years and that he shall be under the supervision of the District Probation Officer Kollam. When a person is found guilty of an offence and thereafter released on probation, that is not a case in which a person was sentenced to suffer any punishment. So, there is no question of :the--sentence being Inadequate. In such cases the State cannot file appeal under Section 377(1) of Cr.P.C. The remedy available to the State is to challenge that order for release on probation under Section 11(2) of the Probation of Offenders Act. If the accused is released by the Magistrate, the appeal is to be filed before the Sessions Court in view of the provisions contained in Section 11(3) of the P. O. Act. In State of U. P. v. Nand Kishore Misra, AIR 1991 SC 763 : (1991 Cri LJ 456), it is held as follows (para 5) :
'The plain language of Section 377(1) of Cr.P.C. makes it clear that the State Government can file an appeal to the High Court 'against the sentence on the ground of its inadequacy'. In a case where the conviction is recorded by the trial Court but instead of awarding sentence of imprisonment the convict is released on probation under the provisions of the relevant special law then it is a case where no sentence at all has been awarded and as such the provisions of Section 377(1) are not attracted'.
So when an accused is convicted but released on probation the State cannot file an appeal under Section 377(1) of Cr.P.C. In such cases, the appeal ought to have been filed under Section 11(2) of the Probation of Offenders Act. So this appeal challenging the inadequacy of sentence alone is not maintainable.
10. Now, we shall consider whether in this appeal this Court can consider the contention of the State that the respondent is guilty of the offence punishable under Section 302, I..P.C. It is well settled position of law that in an appeal filed under Section 377 of Cr.P.C. the State cannot argue for alteration of conviction to a higher offence. In this case, the respondent was tried for an offence under Section 302. But the learned Sessions Judge found that the respondent is not liable since the intention was not to commit the murder of the deceased. So the respondent was acquitted of that offence. If the State was aggrieved of that order of acquittal the State ought to have filed an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave from this Court. But the appeal must be one filed under Section 378 challenging the acquittal. In Eknath v. State of Maharashtra, AIR 1977 SC 117,7 : (1977 Cri LJ 964) a three Judge Bench' of the Supreme Court considered the question whether in an appeal filed under Section 377 of Cr.P.C., the State can argue for conversion of the acquittal to that of conviction. It was held that it is impermissible. The Apex Court held as follows (para 21) :
'Mr. Khanna submits that we should alter the finding of conviction to one for violation of Section 2(i)(c) from Section 2(i)(l), since, according to him, that will be the proper conviction on the facts of the case. We are unable to entertain this plea for altering the conviction in such a manner for the purpose of enhancing the sentence under Section 377 of Cr.P.C. The State did not appeal against the acquittal of the appellant under Section 16(1)(a)(i) read with Section 2(i)(c) and proceeded on the basis that the article was adulterated within the meaning of Section 2(i)(1) as held by the trial Court. This is clear also from the judgment of the High Court. In an appeal against inadequacy of sentence it is not permissible to alter the conviction to an aggravated category of offence for which the accused was not convicted. While the accused in such an appeal under Section 377, Cr.P.C. can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of a graver offence and on that basis the sentence should be enhanced. The prosecution will only be able to urge that the sentence is inadequate on the charge as found or even on an altered less graver charge'.
11. The principle laid down in Eknath's case (1977 Cri LJ 964) (supra) was followed by this Court in State of Kerala v. Sivadasan, 1987 (2) Ker LT 898. It was held as follows :--
'The appeal under Section 377(1) of Crl. P. C. can only be confined to a question of adequacy of sentence. In such an appeal Court is not competent to alter the conviction of the accused'.
Since the State has not filed an appeal under Section 378, Cr.P.C. against the order of acquittal, it is not open to the State in this appeal filed challenging inadequacy of sentence alone to argue that the appellant ought to have been convicted under Section 302, I.P.C.
12. Section 378 of the Code of Criminal Procedure deals with appeal against acquittal. Such an appeal is to be filed by the Public Prosecutor as provided under Section 378 of the Code of Criminal Procedure. Section 386 of the Code enumerates the power of the appellate Court. Even if the State has not filed any appeal in appropriate cases this Court may invoke the powers conferred on it under Sections 397 and 401 of the Code to consider the correctness, legality or propriety of any finding recorded by any inferior Courts. Sections 377 and 378 of the Code do not limit or take away the powers of this Court under Sections 397 and 401 of the Criminal Procedure Code. In Sahab Singh v. State of Haryana, : 1990CriLJ1202 the Supreme Court has held as follows (para 4) :--
'Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal Court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or other recorded or passed and as to the regularity of any proceedings of any inferior Court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 of the Code'.
This power is subject to the two restrictions under Sub-sections (2) and (4) of Section 401 of the Code of Criminal Procedure; Sub-section (2) of Section 401 of the Code provides that no order under Section 401 shall be made to the prejudice of the accused without giving him an opportunity of being heard either personally or by pleader in his own evidence. Sub-section (3) provides that in the proceedings under Section 401 this Court cannot convert a finding of acquittal to one of conviction. But this Court can very well set aside the impugned order and remand the case for fresh consideration.
13. In this case, this Court has not invoked the revisional jurisdiction conferred on this Court, No notice requiring the respondent to show cause why the judgment of acquittal shall not be set aside was served on him. The learned single Judge referred the matter to be heard by a Bench of two Judges. When the referred matter is heard by a Bench of two Judges the Bench is actually discharging the functions of the single Judge. The Bench cannot consider the correctness of a judgment of acquittal in the absence of an appeal or revision. We do not think it is just and proper to invoke the revisional jurisdiction suo motu while answering a question referred to the Bench. So, the State cannot be allowed to contend that the learned Sessions Judge went wrong in acquitting the respondent of the charge framed under Section 302, I.P.C.
14. The present appeal is one challenging the inadequacy of sentence alone. In this particular case, an appeal under Section 11(2) of the Probation of Offenders Act is also to be filed before this Court. The State has raised a contention that the learned Sessions Judge ought not have released the respondent under the provisions of Probation of Offenders Act. Though Section 11(2) has not been specifically stated in the cause title of the appeal memorandum, we are of the view that that question can also be considered in this appeal. Section 11(2) of the Probation of Offenders 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 Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeal ordinarily lie from the sentences of the former Court..'.
So, this Court in appropriate cases can set aside the order passed by the lower Court and pass sentences on such offender according to law.
15. The respondent was aged 18 on the date of commission of the offence. He was aged 20 on the date of trial. In view of the provisions contained in Section 6 of the Probation of Offenders Act imposing restrictions on imprisonment of offenders under 21 years of age, the learned Sessions Judge applied the provisions of Section 4 of the P.O. Act. Section 6 of the Act reads as follows ,:--
'6. Restrictions on imprisonment) of offenders under twenty-one years of age--
(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life) the Court by which the person is found guilty shall, not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender'.
The provision of Section 6 of the Act is mandatory. If the case is one in which the provisions of the Probation of Offenders Act can be invoked and it is shown that the age of the accused is below 21 years, the Court has no other option than to apply the provisions of Section 6 of the Probation of Offenders Act. The Court, can refuse to invoke the provisions of Section 4 only if it is satisfied that having regard to the circumstances of the case including the nature of the offence and character of the offender it would not be' desirable to deal with under Section 3 or 4 of the Probation of Offenders Act. In Mohammed Aziz Mohammed Nasir v. State of Maharashtra, : 1976CriLJ583 it was held :
'Section 6 thus lays down an injunction, as distinct from a discretion under Section 3 or Section 4, not to impose a sentence of imprisonment on a person who is under twenty-one years age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him under Section 3 or Section 4'.
16. In Masarullah v. State of Tamil Nadu : 1983CriLJ1043 the-Apex Court held as follows :
'In case of an offender under the age of 21 years on the date of commission of the of fence, the Court is expected ordinarily to give benefit of Section 6 of the Act. While deciding whether the offender should be granted the benefit, it is necessary for the Court to keep in view three relevant aspects viz., nature of the offence, character of the offender and the attendant and surrounding circumstances as revealed in the report of the Probation Officer. Having regard to these considerations as also in conformity with the modern trend of reclamation of offender rather than condemnation, the present case appears to be pre-eminently fit case for grant of the benefit under Section 6'.
It was also held that if the accused is under the age of 21 years on the date of commission of the offence, the Court will have to normally apply the provisions of the Act.
17. The evidence of PWs-1 to 3 shows that at or about 8.20 a.m. on 21-11-1995 the respondent inflicted two stab injuries 011 the person of deceased Remanan who succumbed to the injuries. The learned Sessions Judge after an elaborate consideration of the entire evidence came to the conclusion that the respondent had no intention to cause the death of Remanan. So he was acquitted of the offence under Section 302 of Indian Penal Code but found guilty under Section 304 Part II. Since the respondent was below 21 years in view of the mandatory provisions contained under Section 6 of the Probation of Offenders Act, the learned Sessions Judge thought it fit to invoke the powers under Section 4 of the Probation of Offenders Act. The learned Sessions Judge called a report from the District Probation Officer. We have also gone through the report of the Probation Officer which shows that the petitioner can be released on Probation.
18. After considering the entire facts, the learned Sessions Judge released the respondent under Section 4 of the Probation of Offenders Act on probation of good conduct for a period of three years and directed him' to pay compensation of Rs. 25,000/- under Section 5 of the Probation of Offenders Act. We do not find any illegality or impropriety in the order passed by the learned Sessions Judge releasing the respondent, under Section 4 of the P.O. Act. That finding does not call for any interference under Section 11 of the Act. So the appeal is only to be dismissed. In the result, this Criminal appeal is dismissed.