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1976 DIGILAW 41 (PAT)

Ramanaya v. State Of Bihar

1976-02-12

NAGENDRA PRASAD SINGH, SHAMBHU PRASAD SINGH

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Judgment 1. The petitioner was convicted by the trial court for offences under S.101 of the Indian Railways Act and under Sec.337 of the Indian penal Code. For the offence under Sec.101 of the Indian Railways Act, he was sentenced to undergo simple imprisonment for four months and for the other offence, i.e., under Sec.337 of the Indian Penal Code, he was sentenced to undergo simple imprisonment for one month. The sentences were directed to run concurrently. On appeal, the convictions have been maintained but the sentence for the offence under Sec.337 of the Indian Penal Code has been set aside. 2. The prosecution case against the petitioner is that on 16th of March, 1967, he was driving D.R.W. Down Goods train rashly and negligently between Bano and Mahabuang railway stations. Though the train was to stop at Mahabuang station, it did not stop and proceeded towards the sand-hump in the loop line at a very high speed and dashed against it as a result of which the two engines of the train and eight empty box wagons capsized and the petitioner, who was the driver of the train, the Assistant driver and the guard were injured. 3. The petitioner pleaded not guilty to the charges. He also examined two defence witnesses. His case was that he was not driving the train rashly and negligently and the accident took place for reasons beyond his control. 4. A petition of compromise has been filed before this court on behalf of the petitioner on one side and the station master of Mahabuang railway station who was the informant in the case and the guard of the train, who received injuries. So far the offence under Sec.101 of the Indian Railways Act is concerned, that is not compoundable and cannot be compounded. So far the other offence under Sec.337 of the Indian Penal Code is concerned, that is compoundable with the permission of the court at the instance of the person to whom hurt is caused. In the circumstance, the guard is competent to compound the offence so far hurt to him is concerned. So far the other offence under Sec.337 of the Indian Penal Code is concerned, that is compoundable with the permission of the court at the instance of the person to whom hurt is caused. In the circumstance, the guard is competent to compound the offence so far hurt to him is concerned. But as the Assistant driver has not joined this petition of compromise even though he was examined as defence witness in the case, the petitioner cannot be acquitted even for the offence under Sec.337 of the Indian Penal Code on the ground that there has been a compromise in the case. 5. Mr. Tarkeshwar Dayal appearing on behalf of the petitioner has submitted that the petitioner cannot be convicted for two offences for the same act. In support of this contention, he has placed reliance on Section 71 of the Indian Penal Code and Sec.36 of the Central General Clauses Act and also cited the decision of a Bench of this Court in Rehamatullah V/s. Emperor, 1917 (1) Pat LW 340 = (18 Cri LJ 321). In that case, the petitioner was convicted for offences under Sec.101 of the Railways Act and under Sec.353 of the Penal Code and it was held that in view of Sec.353 of the Penal Code and Sec.26 of the General Clauses Act, the conviction and sentence under the Railways Act would be set aside and the conviction for the offence under Sec.353 of the Penal Code would stand. Though it is a Bench decision, in our opinion, it is not binding upon us as it appears to have been given per incuriam. Section 71 of the Indian Penal Code as well as Sec.26 of the Central General Clauses Act talk of punishment and not of conviction. From the language of Sec.35 of the Code of Criminal Procedure, 1898 (equivalent to Sec.31 of the Code of Criminal Procedure, 1973), it is manifest that punishment means sentence only and not conviction. It is also manifest from language of Sec.235 of the Code of Criminal Procedure, 1898, specially from the various illustrations given in that section. There are many decisions of the Supreme Court, which need not be referred to here, where convictions for two offences for the same act have been upheld. It is also manifest from language of Sec.235 of the Code of Criminal Procedure, 1898, specially from the various illustrations given in that section. There are many decisions of the Supreme Court, which need not be referred to here, where convictions for two offences for the same act have been upheld. Of course on the question of punishment, i.e., the sentence, the provisions of Section 71 of the Indian Penal Code and Sec.26 of the Central General Clauses Act are relevant. It cannot, therefore, be held that the conviction of the petitioner for one of the offences must be held bad. 6. Mr. Dayal also attempted to challenge the convictions of the petitioner on merit. But both the courts below, after having examined the materials available on record, have found the petitioner guilty for both the offences and we do not find it possible to differ from those findings and interfere with the order of conviction passed against the petitioner for the two offences. 7. However, on the question of sentence, we feel that it is not a case, specially in view of the compromise petition filed before this court and the fact that the petitioner was departmentally punished and reduced in rank, where he be sent to the jail again. We accordingly reduced the sentence of imprisonment passed against him to the period already undergone. The application is allowed to the extent indicated above on the question of sentence only.