Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.324 OF 2019
(Arising out of S.L.P.(Crl.) No.5655 of 2018)
Nagaraj ….Appellant(s)
VERSUS
Union of India ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.02.21
17:10:06 IST
Reason:
judgment and order dated 15.03.2018 passed by
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the High Court of Karnataka, Circuit Bench at
Dharwad in Criminal Revision Petition No.100297 of
2017 whereby the High Court dismissed the
criminal revision petition filed by the appellant
herein and affirmed the orders passed by the Courts
below.
3.
The appeal involves a short point as would be
clear from a few facts stated hereinbelow.
4. The appellant was a driver working in the
Karnataka State Road Transport Corporation. On
03.08.2006 at around 11.15 p.m., the appellant
while driving the bus hit it against the railway
crossing gate KM No. 35056, which was set up on
the railway line between Chalageri and Ranebennur
Railway Stations. Due to the said hit, the railway
crossing gate was broken.
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5. Section 160(2) of the Railways Act, 1989
provides that if any person breaks any gate or chain
or barrier set up on either side of a level crossing
which is closed to road traffic, he shall be punished
with imprisonment for a term which may extend to
5 years.
6. The appellant was, therefore, prosecuted for
commission of offence punishable under Section
160(2) of the Railways Act, 1989 by the Principal
st
Civil Judge and 1 Additional JMFC, Ranebennur
and pursuant to which FIR No.385/2006) was
lodged against him on 04.08.2006 in RPF Police
Station, Ranebennur.
st
7. By order dated 05.04.2011 passed by the 1
Additional JMFC, the appellant was found guilty for
commission of the offence for which he was charged
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and was accordingly sentenced to undergo simple
imprisonment for a period of six months.
8. The appellant felt aggrieved and filed appeal
before the Additional District and Sessions Judge,
Haveri. By order dated 04.03.2016, the Additional
District and Sessions Judge dismissed the appeal
filed by the appellant resulting in affirmation of his
conviction and sentence awarded by the JMFC by
his order dated 05.04.2011.
9. The appellant carried the matter further in
Revision in the High Court of Karnataka at
Dharwad Bench. By impugned order, the High
Court dismissed the revision and upheld the
appellate order dated 04.03.2016 giving rise to filing
of this appeal by way of special leave by the
appellant in this Court.
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10. Heard Mr. Anand Sanjay M. Nuli, learned
counsel for the appellant and Mr. R.
Balasubramanian, learned counsel for the
respondent.
11. The submission of learned counsel for the
appellant was threefold. In the first place, he
contended that the appellant was wrongly convicted
for an offence punishable under Section 160(2) of
the Railways Act. According to him, there was no
sufficient evidence to prosecute the appellant much
less to convict him for an offence punishable under
Section 160(2) of the Railways Act.
12. In the second place, learned counsel
contended that in any event, when admittedly there
was no injury caused to any human being in the
incident except causing some damage to the railway
crossing gate, the six months’ jail sentence to the
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appellant for commission of such offence was not
justified. According to him, it was excessive and
disproportionate to its nature and the resultant loss
caused. It was also urged that the appellant out of
six months’ jail sentence has already undergone
around one month’s jail sentence and, therefore, in
the interest of justice, his jail sentence is liable to be
altered and reduced to what he has already
undergone.
13. In the alternative, learned counsel urged that
the appellant at the time of commission of offence
was hardly 21 years of age and, therefore, keeping
in view the totality of the circumstances of the case
and the nature of offence, he be released under the
Probation of Offenders Act, 1958.
14. In reply, learned counsel for the respondent
supported the impugned order and contended that
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the appeal is liable to be dismissed by affirming the
impugned order.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal in part.
16. In our view, the first submission of learned
counsel for the appellant has no substance. It is for
the reason that when the three Courts below, i.e.,
the Court of Magistrate, Appellate Court and the
High Court in its revisionary jurisdiction, on
appreciation of evidence, have arrived at a
conclusion that the appellant was found to have
committed the offence, such finding being
concurrent finding of fact is binding on this Court
while hearing appeal under Article 136 of the
Constitution.
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17. Even otherwise, we have not been able to
notice any kind of perversity or illegality in the
concurrent finding, which may call for any
interference in this appeal.
18. Coming now to the second submission, we find
substance therein. It is for the reasons that, first,
the appellant has already undergone one month’s
jail sentence; second, the offence in question is
neither against the society nor it involves any moral
turpitude and nor it has resulted in causing any
harm or injury to any human being except causing
some damage to the railway property, viz., one
railway crossing gate; and lastly, the offence is now
13 years old.
19. Keeping in view the aforementioned three
reasons and in the interest of justice, we are,
therefore, of the considered opinion that the six
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months’ jail sentence awarded to the appellant by
the three Courts below deserves to be altered to
“what he has already undergone by the appellant till
date”.
20. In the light of the foregoing discussion, the
third submission urged by the learned counsel for
the appellant deserves to be rejected. Even
otherwise, we find no merit in it for the reason that
the appellant did not raise such plea before the
three Courts below though it was available to him at
all stages of the proceedings.
21. In view of the foregoing discussion, the
appeal succeeds and is allowed in part. The
conviction of the appellant is upheld but sentence
awarded to the appellant is reduced to “what he has
already undergone”. In other words, now the
appellant is not required to undergo any further jail
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sentence in this case except what he has already
undergone.
22. The appellant is already on bail, his bail bond
is discharged.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
February 21, 2019.
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