Mahendra Singh vs The State of Bihar

K.B. Singh, J.—This revision application is directed against the judgment of the Additional Sessions Judge, Gaya, affirming the judgment or the Judicial Magistrate by which the petitioner has been convicted u/s 3of the Railway Property (Unlawful Possession) Act, 1966, (hereinafter to be referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1500/- and in default of payment of fine to undergo rigorous imprisonment for three months. The prosecution case, in brief, is that on receipt of confidential information hat stolen articles from the railway wagons were stored in the house of the petitioner and other persons of village Bandhua, a raiding party was arranged by the police. The house of the petitioner was searched on 12.1.1971 in course of which, besides other articles, a railway hose-pipe was recovered. The police registered a case on the basis of the report of the raiding party and investigation submitted charge sheet.

In the trial court charges u/s 414of the Indian Penal Code (hereinafter to be referred to as ''I. P. C.)'' and u/s 3of the Act were framed against the petitioner and co-accused Jagdeo Singh. They were acquitted of the charge u/s 414of I. P. C. but both of them were convicted and sentenced of the other charge as mentioned above. An appeal was filed against the said judgment in the Court of the Sessions Judge, which was eventually heard by the Additional Sessions Judge, who, by the impugned order, acquitted Jagdeo Singh and maintained the conviction and the sentence passed against the petitioner.

Learned Counsel appearing on behalf of the petitioner faintly contended that the recovered hose-pipe was not the railway property, as defined in the Act. However, in view of directed and trust-worthy evidence on the record he did not pursue this point to its logical end.

Then it was urged that the hose-pipe was not of much monetary significance and consequently the petitioner was entitled to the benefit of section 95of the I. P. C. In support of this contention reliance was placed on the State of Madhya Pradesh v. Mahadeo (1972) 2 Cr. L. J. 1092). All the facts of that case are not mentioned in the reported decision placed before me. To the credit of the Learned Counsel for the petitioner, after some effort he produced a book on the Railway Property (Unlawful Possession) Act, 1966, by C. P. Suresh and M. S. Ansari, Advocates, disclosing some details regarding fact of that case at page 21. The accused in that case was apprehended and on search a small dynamo belt costing Rs. 10/- was recovered from his possession. It appears that he was acquitted and the State filed an appeal before the Madhya Pradesh High Court, which was dismissed. The point debated before the High Court was; whether an accused person after having Been convicted u/s 3of the Act could be given the benefit of the provisions of section 95of the I. P. C. Section 40of the I. P. C. which defines the expression ''offence'', and includes the offence under any special Act, was taken into consideration and it was held as follows :--

......there is nothing inconsistent between section 14of the Act and the provisions of section 95of the Indian Penal Code. The Act no where lays down that, however trivial be the subject matter of unlawful possession under the Act, the offender must necessarily be held guilty and punished under its provisions.

The accused of that case was given the benefit of the provisions of section 95of the I.P.C., primarily because only a small dynamo belt worth Rs. 10/- -was recovered.

There cannot be any dispute that the provisions of section 95of the I.P.C. are applicable to this Act. According to section 95of the I.P.C., nothing is an offence by reason that it causes or that it is intended 10 cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense or temper would complain of such harm. It obviously denotes that the harm must be so trifling in nature that a reasonable man of ordinary sense should not feel hurt by it. This section recognises the maxim minimis nun curat lex (law does not care about trine). The idea behind framing section 95of the I.P.C. is to exclude from the operation of the Penal Code, those which may fall within the letters of the (sic)aw, but are not within its siprit. It intends to prevent penalisation of negligible wrongs or of offences of trivial nature.

The expression ''slight'' appearing in sec-ion 95of I.P.C. is a relative term. Whether an Act is trivial or not will depend upon the nat-(sic)re of the injury, the position of the parties, the knowledge or intention with which such act is one and other attending, circumstances., It cannot be decided only upon the extent of physical or other injury which the act causes. The (sic)ct of a passerby plucking a twig (Datuan) of tree to clean his teeth obviously will fall with-(sic) the ambit of section 95of the I.P.C. But if a (sic)ill grown tree is cut and removed, the person responsible for doing the same cannot get pro-(sic)ction of this section. In my view, no rule of universal application can be laid down that a person found guilty under the Act will invari-(sic)ly be entitled to the benefit of section 95of the I.P.C. It will depend on this facts and circumstances of each case.

The case relied upon by the petitioner distinguishable on facts. In that case the accused was found with a small dynamo belt worth Rs. 10/- - only. The use of a dynamo belt is well-known and its removal causes some trouble to the persons travelling in a particular railway compartment or few compartment. The removal of a hose-pipe, on the other hand, can bring a train to halt. So, the two cannot be treated at par. The removal of a hose-pipe, from a train, therefore, does not cause slight harm, as contemplated u/s 95of the I.P.C. Thus, in my view, the petitioners is not entitled to the benefit of section 95of the I.P.C.

Lastly, it was contended that the sentence passed against the petitioner was severe. It was urged that the occurrence took place in the month of April, 1971, and since then the petitioner had remained in great mental agony due to prolonged prosecution. It was stated that the petitioner mostly remained on bail during the said period except its privilege. Submission was made that a lenient view should be taken with regard to the sentence proposed to be passed against him.

No evidence is available on the record to indicate the exact value of the hose-pipe in question. From the judgment of the appellate court, however, it appears that it was not of much value, and as told by the prosecution witnesses, it was an old hose-pipe. 1 rue it is that a period of fifteen years had already rolled on and the petitioner did not misuse the privilege of bail. In my view, it will not be conducive in the interest of justice to send him in jail at this stage after lapse of more than a decade and half. So, while maintaining the conviction of the petitioner, the substantive sentence of imprisonment is reduced to the period already undergone. The nose-pipe in question has already been held by the appellate court to be of little monetary value and thus the sentence of fine is set aside. In the result, this application is dismissed with the modification in the sentence, as mentioned above.