Misra, J.:— Criminal Revision No. 471 of 1963 has been beard along with Original Criminal Miscellaneous Case No. 21 of 1963 as they both arise out of the same proceedings. Petitioner Baidya Nath Prasad of Teghra Bazar in the sub-division of Begusarai filed a written report at the Teghra police station on the 30th of November 1959 at about 7 p.m stating that sometime before the report, when the propaganda van of Sunlight and Life buoy Soap of Hindustan Lever Brothers, gave a film show in front of the gaddi of the complainant, a big crowd collected there. The informant was present there among others as also the two accused Awadhesh Singh and Gangotri Singh of village Madhurapur, Bichlatola within police station Teghra. The accused came near the gaddi of the complainant and were suspiciously looking round like miscreants. The complainant asked them to sit peacefully or to leave the place. Accordingly, they sat in the gaddi for some time. While others were engaged in witnessing the show, the two accused drew near the place where cash was kept and each one of them stole a sum of Rs. 100/- out of it. They were detected, however, while they were stealing the amount and were apprehended and ultimately the money was recovered from their persons. Soon thereafter some people of Madhurapur, village of the accused, came there and began to raise hulla. Emboldened by their presence the accused also joined in making the hulla and threatened the complainant with dire consequence because he caught the two accused and recovered the money stolen by them. The complainant was terrified at their threatening attitude and closed the shop. His brother also fired two blank shots from their gun and then the snob dispersed. The sub-inspector of police of Teghra police station took up investigation and submitted chargesheet against the accused under section 380, Indian Penal Code.

2. The accused were tried by Sri M. Roy Munsil Magistrate, Begusarai who found the accused guilty of the offence with which they were charged. It appears, however, that the Magistrate called for a report from the probation Officer as to the character and conduct of the accused persons, and the probation Officer, Begusarai, Sri Prayag Singh, submitted a report stating that the accused belonged to a respectable family, owned a large area of agricultural lands and there was no previous conviction against them. It is stated that he reported further that the two accused were students of degree course belonging to G.D Singh College at Begusarai and L.S College at Muzaffarpur. The Magistrate without any notice so the complainant accepted the report and released the accused after giving them due admonition that they must not repeat the offence in future, apparently under section 3 of the Probation of Offenders Act (20 of 1958). When the complainant learnt of the order passed by the learned Magistrate, he preferred an appeal against it alleging that the accused were not man of good antecedents nor of respectable family, end that the order was arbitrary and the report of the Probation Officer was biased and influenced by extraneous considerations. The appeal having been preferred under section 11(2) of the Act, the learned Additional Sessions Judge of Monghyr who heard the appeal, dismissed it holding that no appeal could be made in a case under section 380, Indian Penal Code by the complainant as the prosecution in such a case was conducted by the State. According to the learned Additional Sessions Judge, an appeal could be preferred in such a case only by the convicted person who was aggrieved with the order or by the State conducting the prosecution; but the private party who merely filed a complaint had no locus standi to prefer an appeal against the order of the Magistrate passed under section 3 of the Act. The complainant, Baidya Nath Prasad accordingly filed the above application in revision to this Court challenging the correctness of the view of the learned Additional Sessions Judge regarding the maintainability of the appeal. An application was also filed for suitable action against the Probation officer Sri Prayag Singh. This Court issued notice in both file applications and the one relating to the prayer for action against Sri Prayag Singh was ordered to be treated as an original criminal miscellaneous case inasmuch as it concerned the prayer for proceedings in contempt of Court against him.

3. The principal question for consideration with regard to the merit of the application in criminal revision is the examination of the view of the learned Additional Sessions Judge as to whether an appeal is competent by a private party who is the complainant in terms of section 11(2) of the Act in a case in which the prosecution is being conducted by the State. Section 11 of the Act is in so far as it is relevant stands thus:

“11. (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 be to the court to which appeals ordinarily lie from the sentences of the former court”

4. It has been urged on behalf of the petitioner that the wording of sub-section (2) is sufficiently elastic to allow an appeal to be made against an order by a Court purporting to act under section 3 or 4 of the Act by anyone who is aggrieved by that order. The accused person who is convicted and is given the benefit of sections 3 or 4 of the Act is yet not precluded from questioning the correctness of the order of conviction, and as such, he is enabled by sub-section (2) to file an appeal against the order of conviction itself — a position upon which there is no manner of controversy between the parties. Learned Counsel has urged that in view of the very flexible wording of this sub-section and there being no restriction or specification as to the person who can prefer an appeal, such an appeal in respect of an action under section 3 of 4 of the Act can be preferred also by anyone interested in the criminal proceedings which would refer both to the State and the private party who is a complainant in the case at whose instance the proceeding has been initiated. Learned Counsel for the opposite party, however, has contended that the intention of the Legislature in enacting sub-section (2) of section 11 was to set at rest any doubt with regard to the right of appeal conferred on a convicted person because of the indulgence shown to him under section 3 or 4 of the Act, and since it was contemplated that the stigma of conviction in spite of lenient treatment under section 3 or 4 of the Act would still remain upon the character of the person convicted his right to prefer an appeal should not be taken away ion account of the action under section 3 or 4 of the Act. It was the sole object in view of the Legislature in enacting sub-section (2) of section 11 and at should, therefore, be held that the sub-section is not enacted to enable an appeal to be preferred by the State nor by the complainant who has no locus standi in a criminal proceedings which is being conducted on behalf of the prosecution by the State.

5. Mr. Kailash Ray has urged that the words; “an appeal shall be to the court to which appeals ordinarily lie from the sentences of the former court” refer to an appeal which is competent under the Code of Criminal Procedure. Since an appeal in the ordinary course is preferred under the Code of Criminal Procedure only by the convicted person when an order of conviction has been recorded against him, an appeal can be preferred by the State only when there is acquittal of the accused. When action is ordered under section 3 or 4 of the Act by the trial court, there is a conviction, all the same, and, therefore, in terms of the provisions of the Code of Criminal Procedure, no appeal Could have been preferred even by the State, much less by the complainant. The opinion expressed by the learned Additional Sessions Judge that such an appeal could be preferred by the State and not by the Private party being the complainant also is not a correct view with reference to the wording of the sub-section. Mr. K.P Verma for the State, however, has urged that the Probation Offenders Act is an independent Act having nothing to do with a penalty to be imposed upon an accused person but concerns itself only with the correctional treatment to be meted out to a person if he has been convicted. It has got its own machinery with regard to how the Court would make up its mind as to the application of the particular provisions in this Act to a case after conviction is recorded as also with regard to the right of appeal. Stress has been laid by Mr. Verma upon the words in Sub-section (2). “Notwithstanding anything contained in the Code” as also on the unqualified expression an appeal shall lie to the court”…

6. His contention is that even if it were possible to construe this section with reference to the Code of Criminal Procedure as to the person having a locus standi to appeal if the words “Notwithstanding anything contained in the Code” were not there, nevertheless, in view of these words occurring in the sub-section any justification for taking that View is completely precluded. These words make the right of appeal against an order passed in terms of this Act independent of the Code of Criminal Procedure. In my opinion, there appears to be substance in the argument advanced by Mr. K.P Verma with regard to the competency of an appeal even by the prosecution in case where the trial court has acted under section 3 or 4 of the Act. There is good reason for that in view of sub-section (2) of section 11 of the Act, because the Code of Criminal procedure is concerned only with substantive acquittal for conviction, whereas, as I have mentioned above, this Act concerns itself with something independent of the fact of conviction or acquittal. In a matter like this it is quite reasonable to hold that if the prosecution feels aggrieved with regard to the propriety of the order passed by the trial court giving an accused person after conviction the benefit of section 3 or 4 of the Act, the Legislature has conferred power upon the prosecution to agitate that question by way of an appeal. It will be confined only to the circumscribed limit of judging the-propriety of the order of correctional treatment. Moreover, if the Legislature intended that this right to prefer an appeal against the conviction should be allowed only to the accused person and not to the prosecution, this would not only be obviously unjust and one sided which the Legislature might not have in view, but also this sub-section would be imperceptibly linked up with the Code of Criminal Procedure which is not in consonance with the words referred to above, that is, “Notwithstanding anything contained in the Code.” It appears to me that the right view, therefore, to adopt with regard to the construction of the sub-section is that the Legislature has conferred the power both upon the prosecution and upon the accused person to prefer an appeal even when resort has been taken to section 3 or 4 of the Act with regard to the merit of the order.

7. The next question for consideration is whether, in any view, the right of appeal should be confined only to the State when it conducts the prosecution, or even in such cases the private party, the complainant, also would get the benefit of the right of appeal. The learned Additional Sessions Judge, as I have mentioned above, has taken the view that the complainant has no locus standi in such a case. Mr. Verma, however, appearing for the State, has drawn our attention to a decision of this Court in Jogendra Narain v. Ganga Prasad, AIR 1954 Pat 150. In that case it has been held that the private prosecutor being the complainant, even where the prosecution is in charge of the State, is not a person who is not interested in the result of the case. The learned Judges have expressed the opinion in that case which related of the prayer for withdrawal of the case by the State. Before the Magistrate orders such withdrawal under Section 494 of the Cr PC, he must hear the first informant because he is vitally interested in the success or failure of the case. Order permitting withdrawal without considering matter and objection put by the first informant is bad.

8. It may be stated that even in terms of Section 439 of the Cr PC, it is well settled that the private prosecutor being the complainant can file an application in revision against the order of acquittal although an appeal against an order of acquittal can be preferred only by the Government. Mr. Kailash, Rai urged that if it were open to the complainant to move the Court by way of an appeal against the order under S. 3 or 4 of the Act, it might be stretched to the extent of justifying an application for action by any witness in the case, the complainant also has merely the status of a witness in the prosecution conducted by the State. The argument, however, cannot be acceded to. It is true no doubt that the complainant is a mere witness in a proceeding when the trial starts, and more so when the prosecution is in charge of the State as happens in most of the cognizable offences, and yet the complainant in substance is not a mere witness but is also interested in the outcome of the case, and as such, his interest is higher than that of the ordinary witness who may have just been present to see how the occurrence took place and testified to certain facts relating to the occurrence. That alone is the basis of the revisional application being filed against the order of acquittal even by the private party. In any view of the matter, since the language of sub-section (2) of section 11 is comprehensive, flexible and unrestricted as to the person who can prefer an appeal there is no justification for confining a right of appeal only to the convicted person or even to the state when the state is conducting the prosecution, but it must be taken that the privilege of filing an appeal on the narrow question of propriety of an action under section 3 or 4 of the Act is conferred upon the complainant as well.

9. Learned Counsel for the petitioner has urged that if this view of the matter is accepted by this Court, it would result in a remand of the case to the court of appeal below. The argument is without any force. The power of the High Court in exercise of its revisional jurisdiction is very wide indeed and any order can be passed by this court appropriate in the circumstances of the cases subject to the restriction that an order of acquittal cannot be converted into an order of conviction. It is only, therefore, when an application in revision is allowed by this Court against the order of acquittal at the instance of a private party that the High Court is obliged in law to remand the case. But in all other circumstances, the High Court is competent to pass any order that might be passed by a Court of appeal. The present case is not one of converting an order of acquittal into that of conviction. Accordingly there is no reason why this court should not pronounce on the correctness or otherwise of the order passed by the Magistrate under section 3 or 4 of the Act.

10. As to the merit of the order passed by the learned Magistrate, learned Counsel for the petitioner has contended that the learned Magistrate was influenced by specific consideration in giving the accused persons the benefit of section 3 and letting them off after a simple admonition instead of sending them to prison in terms of section 380, Indian Penal Cods. It was the report of the Probation Officer to the effect that the accused persons were college students that led the Magistrate to think that if they were sentenced to Jail, their studies might suffer, and accordingly they were fit persons to be given a lenient treatment under section 3 of the Act. It appears, however, that the report of the Probation Officer was completely baseless and irresponsible if not biassed and given on extraneous consideration.

11. In my opinion, however, although it is true that the report is incorrect in so far as the Probation Officer stated that the accused persons were College students for it is the common case of the parties before us that they did not pass even the Matriculation examination, it was an irrelevant consideration in the case. Mr. Kailash Ray, appearing for the accused persons, has urged that so far as section 3 of the Act is concerned, all that is required to be looked into by the Court convicting the accused persons is whether the character and antecedents of the accused are such as to justify the trial Court in taking recourse to section 3 of the Act. In the present case the accused were charged with the offence of pilfering Rs. 100/- each from the cash box of the complainant. Apart from the merit of the matter as to whether in the circumstances mentioned, it was possible for the two accused to remove Rs. 100/- each, the report of the Probation Officer was confirmed even with reference to the evidence of P.W 1 that they were boys of a wealthy family. It was put to him further as to whether the accused persons' family did not own 500 to 1000 bighas of agricultural land. To that his answer was that he could not say anything one way or other. Mr. Ray urged that in any view the admission by P.W 1 that the accused belong to a respectable family and further that there was no previous conviction against them would be sufficient to sustain the order of the Magistrate passed under section 3 of the Act.

12. Learned Counsel for the opposite party, however, has drawn our attention to certain proceedings under Section 107 of the Cr PC, started against them. Mr. Rai has contended that to say the least of the matter, these proceedings were started after the present case and they have been acquitted. It was further argued that it was due to the litigation between the family of the accused persons and one Raksha Shara and others. In my opinion, it is not necessary to go into the merits of those proceedings inasmuch as there is no previous conviction recorded against the two accused. The offence is one relating to property. The accused can well be taken in the circumstances of the case not to have been motivated by the desire to make a wrongful gain. The act of pilfering would no doubt constitute the offence of theft, but considering the circumstances it cannot be successfully contended that the view adopted by the learned Magistrate in giving the accused persons the benefit of lenient treatment under section 3 of the Act is wrong or in any case so perverse as to require interference by this Court in the exercise of its revisional jurisdiction. In my opinion, the learned Magistrate proceeded to exercise his discretion in, a manner which cannot be found fault with and his order cannot be disturbed. Criminal Revision No. 471 of 1963 is accordingly dismissed.

13. As to the Original Criminal Miscellaneous in which notice was issued by this Court against Prayag Singh, the Probation Officer, Mr. K.K Sinha appearing for him in this Court has not been able to support the report of the Probation Officer in so far as he stated that the accused were college students. He has urged, however, that although the report is inaccurate in so far as this matter goes but in substance it is right in so far as the Probation Officer reported-that the accused were young men of substantial family of cultivators and that they had no previous conviction. These two circumstances would be sufficient to justify the order under section 3 of the Act and the report of the Probation Officer cannot be regarded as mala fide. He contended further that the highest that can be said against the report is that the Probation Officer should have been more careful and even if any one in the village stated to him that the accused persons were students of Colleges at Begusarai and Muzaffarpur, he should not have taken their statement at face value inasmuch as he should have been discreet enough to verify the matter and he should have known that there was likelihood of all the co-villagers of the accused persons giving a wrong information in order to give a chance to the accused persons getting lenient treatment under section 3 of the Act.

14. The most important circumstance, however, in favour of the Probation Officer in this case is that the learned Magistrate gave him only 24 hours' time. He was asked to submit a report on the 11th of December 1961 and it was to be submitted by the 12th. Thus he was given only 24 hours' time and the judgment was delivered the following day on the 13th of December 1961. It is true no-doubt that the Probation Officer should have expressed his inability to submit a report which would be factually correct within such a short period, and if he had made that prayer, the learned Magistrate might have extended the time for the preparation of a reliable report. As it is, however, the main question is not what should have been done by all concerned including the Magistrate but what actually was done. It was only 24 hours at the disposal of the Probation Officer within which time it was not possible for him to verify the information given to him by the villagers as to whether the accused were students of degree course at two different colleges or not. Mr. Sarwar Ali for the complainant has urged that in view of the statement on behalf of the accused that they did not tell the Probation Officer that they were College students, the act of the Probation Officer was still more careless because he did not care to verify the correctness of the information given by the villagers of the accused persons even by puttying relevant questions to the members of the family of the accused. Thus the Probation Officer did not discharge his duty even with the minimnm of care required of a person of his position.

15. While the point raised in the argument of Mr. Sarwar Ali is not without force, I am inclined to take a lenient view of the Probation Officer in respect of the shortness of time at his disposal. It cannot be ruled out that he was anxious to prepare a report within the time at his disposal so as not to inconvenience the Court. In substance also the report is correct in so far as the status of the family of the accused and the fact that they had no previous conviction are concerned. The Probation Officer has also tendered an unqualified apology before us for his mistaken action in not asking for a longer time from the Court in order to verify the statement as to whether the accused persons were college students or not. In the circumstances I am inclined to accept the apology tendered by the Probation Officer and discharge the proceeding against him. It is expected that the Probation Officer will be more careful in future, will discharge his duty with reasonable diligence and will scritinise the information collected by him in an intelligent manner. It is hoped that other Probation Officers also on whom great responsibility rests so far as the working of the Probation of Offenders Act is concerned will discharge their duties keeping in view the trust imposed on them for the proper administration of criminal justice.

Bahadur, J.:— I agree.

DH/BNP/R.G.D

16. Order accordingly.