Criminal Appeal No.218 of 1988

10th July, 2003

Petitioner Counsel: Ms. USHA V. KEJARIWAL
Respondent Counsel: Shri. C. R. DALVI, Shri. S. B. PARISH

JUDGMENT

PALSHIKAR, J. :- This appeal is filed by original complainant who was duly authorised as Inspector of Western Railway, Bombay. It is directed against the order passed by 36th Court of Metropolitan Magistrate, Bombay on 5th May, 1987 in Criminal Case No.151/S/1986.

2. The original Criminal case was started in the 36th Court of Metropolitan Magistrate, Bombay under the provisions of Railway Property (Unlawful Possession) Act, 1966 and section 411 of the Indian Penal Code. Factually the case was against 5 accused persons, three of whom were employees of the railway and allegedly connected with the theft of railway property and sale thereof subsequently, and two are the present respondents i.e. original accused nos.3 and 4 who were in possession of the stolen property probably because they were purchased the same from the persons stealing it from railway. Trial was conducted by the learned Magistrate. He decided the trial holding that accused no.5 is liable to be discharged and charged the accused nos.1 to 4 i.e. present respondents under section 3 of the R.P.U.P. Act and under section 411 of the IPC.

3. In so far as the respondent/original accused nos.3 and 4 are concerned, they admitted the offence. They admitted that they have committed an error in receiving the railway property and for being in unlawful possession thereof. The learned Magistrate on consideration of all the submissions ordered as under :

1) Accused no.5 is discharged of the offences as no case is made out against him.

2) Charge under section 3 of R.P.U.P. Act and section 409 and 114 of IPC be framed against accused nos.1 and 2.

3) Charge under section 3 of R.P.U.P. Act and section 411 of IPC be framed against accused nos.3 and 4.

The learned Magistrate then proceeded to pass the order under section 246(3) of Criminal Procedure Code. He found that the accused nos.3 and 4, present respondents have both pleaded guilty and have prayed for mercy. He accepted the plea of leniency with the following observations :

"Both the accused are now remorseful. They have lost some of their articles in the seizure. They say that they had sent their cable to the Mahalaxmi Depot and still the cable are lying there. These cables are now lost to then. But apart from that they lost their honour which is more dearer than life. It is not that they were committing this as a dare-devil act. Many of the Railway people may be helping the accused or with their assistance they may be doing thing. They appear to be simple fingers that are meant to be burnt while the brain is far off sitting well cushioned. These accused may also loose their contracts with the railway. Now at least they know that everything cannot be fair in contracts. Some day they are expressed. They should not be physically harassed further. Fine of Rs.One thousand each will have to be paid by them."

4. This order passed by the learned Magistrate under section 246(3) of Cr.P.C. is challenged by the Railway Authorities by filing this appeal for enhancement. In the appeal the prayers are as under :

a) The record and proceedings of the case may be called for;

b) The order of sentence passed on 5th May, 1987 by the Metropolitan Magistrate, 36th Court, BCT, Bombay in Criminal Case No.151/S of 1986 be modified according to law and the sentence be enhanced.

The petitioner in the appeal has therefore prayed to enhance the sentence imposed on the respondents by the order dated 5th May, 1987, according to law.

5. When this appeal came up for hearing, we heard the learned A.P.P. and the learned counsel for the respondents/accused. It is pertinent to note that this incident is of 1986 and the appeal is coming up in July, 2003. A period of 17 years have lapsed after the fact that the learned Magistrate thought it fit to accept the plea of leniency forwarded on behalf of accused nos.3 and 4. Now we are asked to enhance the sentence only because the section, according to the learned Prosecutor, so requires.

6. The provisions of section 3 of the R.P.U.P. Act are therefore liable to be noted carefully :

"3. Penalty for unlawful possession of railway property. - Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable -

a) for the first offence, with imprisonment for a term which way extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

b) for the second or a subsequent offences, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees."

The argument on behalf of the Prosecutor is that the learned Magistrate ought to have imposed the minimum sentence of one year and not only fine of Rs.1000/-. That being so the order obviously is incorrect and needs modifications as prayed for.

7. We are unable to accept this contention on behalf of the prosecution for reason that the section does allow the trial Judge with a power to impose minimum sentences less than one year. It should be noted that section 3(a) reads thus :

a) for the first offences, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

8. The punishment of imprisonment of less than one year or no imprisonment can therefore be ordered under section 3(a) provided the learned Magistrate gives adequate reasons in the order so doing. We have quoted above the reasons given by the learned Magistrate in his order. (they can be seen at page 90 of the paper book). We have carefully considered the submission made by the learned Prosecutor. In our opinion the reasons given by the trial Judge at page 90 of the paper book are adequate reasons. He has noted the fact that they are ashamed of the act, which they have done. He has noted the fact that they were tempted by the circumstances. He particularly takes note of the fact that these accused nos.3 and 4 have lost their honour which according to them was dearer than life. These reasons, in our opinion, cannot be called unreasonable or perverse or unsustainable in law for the purpose of imposing punishment lesser than the one prescribed by section 3 of the R.P.U.P. Act. We are firmly of the opinion that to take different view after 17 years of the order would be more unreasonable or perverse than the reasoning given by the trial Judge. We therefore see no reason to interfere. The appeal is therefore dismissed.

Appeal dismissed.