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2000 DIGILAW 1250 (PAT)

Hansraj Singh And Rajnath Singh v. State Of Bihar

2000-11-21

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. Since both the applications arise out of the same judgment, they have been heard together and are being decided by this common order. 2. Both these revision applications are directed against the judgment dated 16.6.1998, recorded by 4th additional Sessions, Judge, Gaya in Cr. Appeal No. 46 of 1997/216 of 1987, whereunder the learned appellate Court confirmed the judgment dated 11.9.1987 recorded in R.P. Case No. 47 of 1982, and the conviction of both the accused, under the same judgment, was upheld and their sentences to undergo rigorous imprisonment for one year under Sec. 3 of the Railway Property (Unlawful Possession) Act, 1966 was also maintained. 3. Learned Counsel for the petitioners has argued only on sentence and has made out following points: (i) This was a case of the year 1982 in which the learned Special Judicial Railway Magistrate, 1st Class at Gaya, had convicted and sentenced the accused by the judgment dated 11.8.1987 which was upheld by the judgment of the learned Appellate Court dated 16.6.1998, hence the petitioner have undergone agony of facing of this case for about 18 years, Learned Counsel also submitted that the petitioners, before the judgment and after the judgment had remained in custody for some period. (ii) It was also argued that this was first conviction under the aforesaid Act and it has not come on the record that earlier also the petitioners were convicted of the same offence or for any other criminal offence. 4. On the point of sentence learned Counsel submitted that the petitioners should have been dealt with under Sec. 4 of the Probation of offender Act and for that learned Counsel has relied upon a decision of the Madras High Court in the case of State by Public Prosecutor V/s. Rathinavelu 1979 Cr. law journal 354, in which it was held that though the minimum sentence was prescribed under Sec. 3 of the R.P. (U.P.) Act, still the provision of Probation of Offender Act could apply. Learned Counsel has also placed before me another judgment of this Court in the case of Mahendra Singh V/s. The State of Bihar 1996 B.B.C. 752, in which the accused was convicted, for possession of a hose-pipe belonging to the railways and was sentenced to undergo R.I. for one year and to pay fine of Rs. 1,500.00 . Learned Counsel has also placed before me another judgment of this Court in the case of Mahendra Singh V/s. The State of Bihar 1996 B.B.C. 752, in which the accused was convicted, for possession of a hose-pipe belonging to the railways and was sentenced to undergo R.I. for one year and to pay fine of Rs. 1,500.00 . Keeping in view the time already take in protracted trial and appeal, this Court while maintaining the conviction, reduced the substantive sentence to the period already undergone, further setting aside the sentence of fine. It will appear that in that case, the petitioner had remained in custody for 10 days. 5. Learned Addl. Public Prosecutor points out that under Sec. 3 of the R.P. (U.P.) Act, for the first offence the sentence prescribed is not less than one year and the fine, if awarded, could not be less than Rs. 1,000/. 6. However, under Sec. 3 of the aforesaid Act there can be an exception. The minimum sentence could be less for some special and adequate reasons which has to be mentioned in the judgment. Learned A.P.P. also points out that in this case large number of Railway properties were recovered from the possession of the petitioners which have been fully described in paragraph 5 of the judgment of the learned trial Court. It was submitted that, therefore, the petitioners are not entitled to any leniency. 7. In view of the fact that large quantity of Railway properties were recovered from the possession of the petitioner, which, as per evidence on record, have been proved not only to be the railway properties but also in serviceable condition, I do not think that the petitioners should be given the benefit of the Probation of Offenders Act. 8. In so far as the case of Mahendra Singh (supra) is concerned, that case related not only to protracted trial but also about possession of one railway property the cost of which was only Rs. 10.00 . Therefore, that benefit, in my opinion, cannot be given to the petitioners. The petitioners have already been given minimum sentence as prescribed under Sec. 3 of the Act and have not been sentenced to any fine. 9. In view of the aforesaid, I do not find it to be a fit case in which the sentences should be reduced. 10. In the result, Cr. Revision Nos. The petitioners have already been given minimum sentence as prescribed under Sec. 3 of the Act and have not been sentenced to any fine. 9. In view of the aforesaid, I do not find it to be a fit case in which the sentences should be reduced. 10. In the result, Cr. Revision Nos. 539 and 553 of 1998 stend dismissed.