STATE Vs. DHANAPAL

JUDGEMENT

(1.) This is an appeal preferred by the State represented by the Public Prosecutor aggrieved by the order of the Trial Magistrate, releasing the accused under Section 4(1) of the Probation of Offenders Act. The respondent/accused was found guilty of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act on his own admission. In fact, the respondent filed a memo pleading guilty and the same was recorded as voluntary. In spite of this, the case went on and witnesses were examined. The accused did not cross-examine. Finally, the learned Magistrate found the accused guilty under Section 3(a) of the Railway Property (Unlawful Possession) Act, but applied Section 4 of the Probation of Offenders Act and called for a report from the probation Officer. On receiving the report, the learned Magistrate released him under Section 4(1) of the Probation of Offenders Act on his executing a bond for Rs.500.00with one surety for a like sum to appear and receive sentence whenever called upon to do so during a period of one year and in the meantime to keep peace and be of good behaviour. The State is aggrieved by the order and has come forward with this appeal on the ground that the Probation of Offenders Act will not apply to the offence under the Railway Property (Unlawful Possession) Act and that the learned Magistrate has committed an error which should be set right.

(2.) I have perused the records and heard the learned Public Prosecutor, and I am satisfied that Che Magistrate has committed an error in applying the Probation of Offenders Act to the offence in question. Section 14 of the Railway Property (Unlawful Possession) Act clearly says that the provisions of that Act will have an overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. In other words, the Railway Property (Unlawful Possession) Act is a Special Act which overrides the Probation of Offenders Act. For instance, under the provisions of the said Railway Property (Unlawful Possession) Act, for the first offence, the minimum sentence of imprisonment prescribed is one year, and two years for the second offence. Therefore, the learned Magistrate was not right in applying the Probation of Offenders Act to an offence with reference to the railway property.

(3.) That apart, the Supreme Court has clearly held in Superintendent, Central Excise v. Bahubali, (1979) 1 S.C.J. 259: (1979) M.L.J. (Crl.) 241: (1979) 1 S.C.R. 1104: (1979) 2 S.C.C. 279: (1979) S.C.C. (Crl.) 447: (1979) Crl.L.J. 862: A.I.R. 1979 S.C. 1271 that the benefits of Sections 3, 4 and 6 of the Act cannot be invoked for an offence falling under the Defence of India Act. The Railway Property (Unlawful Possession) Act is a Special Act containing a provision similar to Section 43 of the Defence of India Act, 1942. Therefore, recourse to the provisions of the Probation of Offenders Act, 1958 cannot be had by the Court where a person is found guilty of any of the offences under the Railway Property (Unlawful Possession) Act. The punishment awarded to the respondent is irregular and contrary to law but then, it is noticed that the respondent was found in possession of four kgs. of grapes stocked in the railway yard. Undoubtedly, it is a rail property and the Railways have dominion over the same. Therefore, having regard to the article stolen which appears to be a trifle, it is not necessary to impose the minimum punishment prescribed under the law. Therefore, instead of sentencing the accused to undergo imprisonment, in the circumstances of the case, I direct the respondent/accused to pay a fine of Rs.100.00, in default to undergo R.I. for a period of 4 weeks. The appeal is allowed in these terms.