Allahabad High Court
Ram Paras Madheshiya vs State Of U.P. on 2 December, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 17.11.2022
Delivered on 02.12.2022
Court No. - 84
Case :- CRIMINAL REVISION DEFECTIVE No. - 73 of 2000
Revisionist :- Ram Paras Madheshiya
Opposite Party :- State of U.P.
Counsel for Revisionist :- H.P. Mishra
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Saurabh Shyam Shamshery,J.
Order on Delay Condonation Application
1. Heard.
2. Delay in filing revision is explained satisfactorily. It is hereby condoned. The application is accordingly allowed. Let revision be registered with regular number.
Order on Memo of Revision
1. This criminal revision is filed by Revisionist-Ram Paras Madheshiya, who was convicted by judgment and order dated 30.09.1997 passed by Additional Chief Judicial Magistrate, North-East Railway, Varanasi under Section 3 of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "Act, 1966") whereby revisionist was sentenced for two years simple imprisonment and fine of Rs. 3000/- with default sentence of one year additional simple imprisonment. Revisionist is further aggrieved that his appeal against aforesaid order being Criminal Appeal No. 104 of 1997 was dismissed by judgment and order dated 22.10.1999 passed by Xth Additional Sessions Judge, Varanasi.
2. Sri H.P. Mishra, learned counsel for revisionist has limited his argument to quantum of sentence and contended that alleged occurrence took place on 20.09.1989, i.e., about 33 years ago and thereafter revisionist was not involved in any criminal activity, therefore, he may be granted benefit of Probation of Offenders Act, 1958 (hereinafter referred to as "Act, 1958") and in this regard he placed reliance on two judgments of Supreme Court in Lakhvir Singh and others vs. State of Punjab and another (2021) 2 SCC 763 and State through SP, New Delhi vs. Ratan Lal Arora (2004) 4 SCC 590.
3. Sri Deepak Kapoor, learned AGA appearing for State, submitted that benefit of Act, 1958 could be given only when conditions discussed in Lakhvir Singh (supra) are satisfied.
4. In order to consider the legal submissions in the light of facts and circumstances of present case following paragraphs of Lakhvir Singh (supra) are necessary to refer hereinafter:
"14. The legal position insofar as invocation of Section 4 is concerned has been analysed in Ishar Das vs. State of Punjab elucidating that non- obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. The observation in Ramji Missar (supra) was cited with approval to the effect that in case of any ambiguity, the beneficial provisions of the Act should receive wide interpretation and should not be read in a restricted sense.
15. The aforesaid aspect is confirmed by the wording of the said Act which reads as under:
"18. Saving of operation of certain enactments. -- Nothing in this Act shall affect the provisions of Section 31 of the Reformatory Schools Act, 1897 (8 of 1897), or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), or of any law in force in any State relating to juvenile offenders or Borstal Schools."
16. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ''the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab are in the same context."
5. In the present case the Court is dealing with an offence committed under Section 3 of Act, 1966 whereas Act, 1958 was enacted prior to that. Section 3 of Act, 1966 provides a minimum sentence of one year and minimum fine of Rs. 1000/-. As held in Lakhvir Singh (supra) and Ratan Lal Arora (supra), where the Special Act was enacted subsequent to Act, 1958 and prescribes a minimum sentence of imprisonment, the provisions of Act, 1958 cannot be invoked if Special Act contains any provision to enforce the same without reference to any other Act containing a provision in derogation of Special Act. Therefore, in the present case there is no scope of extending the benefit of Act, 1958 to revisionist.
6. Section 14 of Act, 1966 provides that "the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force". Therefore, due to above referred provision as contemplated in Section 14 of Act, 1966 and following the judgment passed by Supreme Court in Lakhvir Singh (supra) and Ratan Lal Arora (supra), the benefit of Act, 1958 could not be extended to revisionist.
7. However, considering the facts of the present case that revisionist was a scrap dealer, the incident occurred about 33 years ago, there is no reported criminal case after the present case, recovery of items from revisionist as well as the age of revisionist being about 70 years, the sentence is modified to the minimum sentence prescribed under Section 3(a), i.e., of one year with minimum fine of Rs. 1000/-. The revision is disposed of by keeping the order of conviction in tact and with modification of sentence, as referred above.
8. In absence of any bail application no order was passed with regard to bail and it is also not on record whether the revisionist was arrested or not. Therefore, the Trial Court is directed to verify and in case revisionist has not still undergone the sentence of atleast one year imprisonment, he may be arrested and sent to jail to undergo the remaining sentence as modified above as well as to recover amount of fine.
9. Certify this judgment to the lower Court immediately.
Order Date :-02.12.2022
AK
