Karnataka High Court

Asif vs State Represented By on 11 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                       NC: 2024:KHC:45701
                                                CRL.RP No. 1095 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 11TH DAY OF NOVEMBER, 2024

                                      BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                 CRIMINAL REVISION PETITION NO. 1095 OF 2016


            BETWEEN:

            1.    ASIF
                  S/O SULTAN MOHIUDDIN,
                  AGED ABOUT 56 YEARS,
                  R/AT NO. 56, 8TH CROSS, N.H.PALLYA
                  MYSURU - 570 001.
                                                            ...PETITIONER
            (BY SRI ABUBACKER SHAFI, ADVOCATE)
            AND:
            1. STATE REPRESENTED BY
               RAILWAY PROTECTION FORCE
               MYSURU
               REPTD BY SPP,
               HIGH COURT BUILDING,
               BENGALURU - 560 001.
                                                           ...RESPONDENT
Digitally   (BY SMT.WAHEEDA.M.M, HCGP)
signed by
MALATESH         THIS CRL.RP IS FILED UNDER SECTION 397 CR.P.C
KC          PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
Location:   4.09.2012 PASSED BY THE III ADDL. SR. C.J. AND C.J.M.,
HIGH        MYSURU IN C.C.NO.83/2008 AND SET ASIDE THE JUDGMENT
COURT OF
KARNATAKA   AND ORDER DATED 9.6.2016 PASSED BY THE VII ADDL. S.J.,
            MYSURU IN CRL.A.NO.168/2012.

                THIS PETITION, COMING ON FOR HEARING, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:


            CORAM:     HON'BLE MR JUSTICE V SRISHANANDA
                                   -2-
                                               NC: 2024:KHC:45701
                                         CRL.RP No. 1095 of 2016




                          ORAL ORDER

Heard Sri Abubacker Shafi, learned counsel for the

revision petitioner and Smt. Wahida M.M., learned High Court

Government Pleader.

2. Revision Petitioner/Accused No.2 who suffered an order of

conviction in C.C.No.83/2008 dated 04.09.2012 on the file of

the III Addl. Senior Civil Judge and Chief Judicial Magistrate at

Mysuru, for the offence punishable under Section 3(a) of the

Railway Protection (Unlawful Properties) Act, 1966, sentencing

to undergo simple imprisonment for a period of one year,

confirmed in Crl.A.No.168/2012 dated 09.06.2016 on the file of

the VII Addl. Sessions Judge, Mysuru, is the revision petitioner.

3. Facts in a nutshell which are utmost necessary for

disposal of the present revision petition are as under:

Charge sheet came to be filed by the Railway Protection

Force, Mysuru, against two accused persons viz., Gopala, an

employee of the railways and Asif-the present revision

petitioner who is running a second hand shop. Charge sheet

material would reveal that TLD box with spanners and

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adjustable players were being sold to the accused No.2 by the

accused No.1 without proper documentation. Recovery of

those material objects marked as M.Os.1 to 6 and a plastic bag

where M.Os.1 to 6 were kept is placed on record as M.O.7 by

the prosecution.

4. Admittedly, those material objects are not the

commodities freely available in the open market. Allegation

against the present revision petitioner is that he received the

stolen articles from accused No.1-Gopala and his possession

was not a valid possession and therefore, charge sheet came to

be filed against the present revision petitioner as well.

5. After due trial, considering the fact that the M.Os.1 to 7

were recovered from the present revision petitioner, both the

accused were convicted and ordered to undergo simple

imprisonment for a period of one year which is the minimum

sentence provided under Section 3 of the Railway Protection

(Unlawful Properties) Act, 1966.

6. Being aggrieved by the same, accused No.2 preferred an

appeal before the District Court in Crl.A.No.168/2012.

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7. However, accused No.1 died and therefore, present

revision petitioner/ accused No.2 pursued the criminal appeal.

8. Learned Judge in the First Appellate Court on considering

the appeal on merits, dismissed the appeal of the accused No.2

as there was no explanation whatsoever offered by him, at

least while recording the statement of accused No.2 as is

contemplated under Section 313 of the Code of Criminal

Procedure.

9. Being further aggrieved by the same, revision

petitioner/accused No.2 is before this Court in this revision

petition.

10. Sri Abubacker Shafi, learned counsel for the revision

petitioner/ accused No.2, reiterating the grounds urged in the

revision petition vehemently contended that the revision

petitioner is a small time second hand dealer in iron and steel

products and he is eking out his livelihood by receiving second

hand items and selling further those items to the whole sale

dealers. Therefore, he cannot be penalized for the act that has

been committed by the accused No.1 who is no more and

sought for allowing the revision petition.

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11. Alternatively, learned counsel contended that in the event

of this Court upholding the Order of conviction, Court may

consider enhancing the fine amount and the custody period of

five days already undergone by the revision petitioner during

the trial may be considered as the period of imprisonment.

12. Per contra, Smt. Waheeda, learned High Court

Government Pleader opposes the submission made on behalf of

the revision petitioner on the ground that when the statute

provides for minimum punishment, this Court cannot consider

the alternate submission and there are enough materials to

consider the conviction Order and therefore, sought to dismiss

the revision petition.

13. On perusal of Section 3 of the Railway Protection

(Unlawful Properties) Act, 1966, it is crystal clear that statute

provides for minimum punishment.

14. In the case on hand, conviction Order is to be maintained

as there is no explanation whatsoever offered by the revision

petitioner at least at the time of recording the accused

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statement under Section 313 of the Code of Criminal

Procedure.

15. Admittedly, M.Os.1 to 7 are seized at the instance of

accused No.1 from the shop of accused No.2 who is the revision

petitioner.

16. Having regard to the language employed in Section 3 of

the Railway Protection (Unlawful Properties) Act, 1966, mere

possession of the property is sufficient enough to conclude the

offence in the absence of proper documentation being

possessed by the person who possesses the property.

17. Admittedly, the properties are not freely available

commodity in the open market. Under such circumstances,

conviction needs no interference.

18. Now, coming to the question of altering the sentence,

even though statute provides for the minimum punishment, in

a given case, this Court has got discretion to reduce the same

by providing suitable reasons.

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19. In the case on hand, since the revision petitioner is only a

receiver of the stolen property, he could only be proceeded

under Section 411 of the Indian Penal Code and not strictly

under Section 3 of the Railway Protection (Unlawful Properties)

Act, 1966.

20. Be that what it may, since the revision petitioner has

already undergone five days imprisonment at the time of trial,

same can be treated as the period of imprisonment by ordering

him to pay fine of Rs.10,000/-, as admittedly, value of the

property seized from the custody of the revision petitioner is in

a sum of Rs.8,000/-.

21. If the revision petitioner fails to make the payment as

aforesaid, then he shall undergo simple imprisonment for one

year as ordered by the learned Trial Judge.

22. With such observations, the following:

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) While maintaining the conviction of the accused for the offence punishable under

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Section 3(a) of the Railway Protection (Unlawful Properties) Act, 1966, custody period of 05 days already undergone by the revision petitioner during the period of trial is treated as the period of imprisonment and is ordered to pay fine of Rs.10,000/- before the Trial Court on or before 10th December 2024, failing which the accused shall undergo simple imprisonment for one year as ordered by the learned Trial Judge confirmed by the learned Judge in the First Appellate Court.