THE STATE OF KARNATAKA v. RIYAZ

(BY SRI. SANGRAM S. KULKARNI, ADV. FOR R1-R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS; ISSUE A WRIT, DIRECTION OR ORDER IN THE NATURE OF CERTIORARI QUASHING THE DATED 11.09.2015 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.,) & J.M.F.C. AT H.B. HALLI IN C.C.NO.506/2008 VIDE ANNEXURE-D AND IN FOR THE OFFENCES PUNISHABLE UNDER SECTION 3(A) R.P(U.P) ACT, 1966 AND ETC. THIS PETITION, COMING ON FOR FURTHER HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned AGA for the petitioner-State and also the counsel for respondents.

2. This writ petition is filed to quash the order dated 11.09.2015 passed by the learned CIVIL Judge (Jr.Dn.,) and J.M.F.C. at H.B. Halli in C.C.No.506/2008 vide Annexure-D and for the offences punishable under Section 3(a) Railway Property (Unlawful Possession) Act, 1966 (for short, ‘R.P. (U.P.) Act’).

3. The main contention of the petitioner-State is that an error has been committed by taking the matter before the Lok Adalath and that the finding recorded by the learned Civil Judge (Jr.Dn.) and JMFC, H.B. Halli is erroneous, illegal and capricious. Learned AGA brought to the notice of this Court the provisions of Section 3(a) of R.P. (U.P.) Act. He would submit that for the first offence, with imprisonment for a term which may extend to five - 4 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 years or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees and also brought to the notice Section 3(b) with regard to second offence is concerned. Learned AGA would further contend that the learned Magistrate without giving any reasons has passed the impugned order. The learned AGA would rely upon the judgment of the Hon’ble Apex Court in the case of State of Rajashtan Vs. Vinod Kumar1wherein in paragraph 15 referred the judgment in the case of State of Madhya Pradesh vs. Santosh Kumar (AIR 2006 SC 2648) wherein it is held that in order to exercise the discretion of reducing the sentence, the statuary requirement is that the court has to record adequate and special reasons in the judgment and not fanciful reasons which should permit the court to impose a sentence less than the prescribed minimum. The 1 AIR 2012 SC 2301 - 5 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated.

4. Learned AGA also relied upon the judgment of Kerala High Court in the case of Santosh Vs. State of Kerala2 and brought to notice of this Court paragraph 4 wherein it is held that in that case that there is no implication that when an accused in the course of the trial withdraws his claim to be tried and plead guilty, the court is not entitled to record the plea, either accept it or continue the trial. An identical question came up for consideration before the Allahabad High Court in Ram Kishun vs. State of UP and held that a plea of guilt can be taken at any stage of trial after framing charge. If an accused is allowed to withdraw his claim to be tried and plead guilty, an earlier termination of the trial can be secured and wastage of the previous time of the court can be avoided. The learned AGA would contend that the Trial 2 2003 (1) KLT 795 - 6 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 Court referring this judgment, without any jurisdiction passed such an order that too imposing only a fine of Rs.500/- and no punishment is imposed. He also brought to notice of this Court that the matter was taken up before the Lok Adalath. Relying on the judgment of the High Court of Kerala referred supra wherein held that it is open to the accused to withdraw his claim to be tried and plead guilty in the course of trial. Plea of the accused person is recorded and considering the said judgment, the Trial court exercising the power under Section 255(2) of Cr.P.C. convicted the accused Nos.2 to 8 for the offenses punishable under Section 3(a) of R.P. (U.P.) Act and leniency is shown. The accused are sentenced to pay fine of Rs.500/- each and further directed the office to return Rs.78,815/- and MO 1 to 5 and other properties, if any, seized in this case to the complainant for taking further action as per law. The very approach of the Trial Court is erroneous and ought not to have entertained the same and the offence is also not compoundable offence and unless offence is compoundable, the Lok Adalath - 7 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 jurisdiction ought not to have been exercised and hence it requires to be quashed.

5. Per contra, counsel for the respondents would vehemently contend that the learned Magistrate is having power to exercise the discretion in a case of summons cases under Section 252 of Cr.P.C. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may in his discretion convict him thereon and power under Section 252 is exercised and Section 255(2) also invoked and hence it does not require any interference.

6. Having heard the learned AGA and also the counsel appearing for the respondents, this Court has to take note of the material available on record and it is not in dispute that the respondents were brought before the Court invoking the offence under Section 3(a) of R.P. (U.P.) Act. It is also not in dispute that the case was registered in CC No.506/2008 and also on 06.08.2015. Accused persons, i.e., respondents have pleaded guilty of - 8 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 the charges levelled against them and matter was referred to the Lok Adalath and impugned order was passed on

11.09.2015.

7. This Court would like to refer Section 3(a) of the R.P. (U.P.) Act.

3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property.] [Marginal heading "Penalty for unlawful possession of railway property" substituted by Act No 25 of 2012.] [Whoever commits theft, or dishonestly misappropriates or is found, or is proved] [Substituted for the words "Whoever is found, or is proved" by Act No.25 of

2012.], or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable (a)for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; - 9 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 (b)for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.

8. In the case on hand, it is not in dispute that the offence is first offence and Section 3(a) is invoked against the respondents and as per Section 3(a), if it is a first offence, imprisonment for a term which may extend to five years or with fine or with both, and in absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than Rs.1,000/-.

9. In the case on hand, the matter was taken up before the Lok Adalath. The offence invoked against the respondents is not a compoundable offence as contended by the learned AGA. When the offences are not compoundable, the learned Magistrate ought not have taken the matter before the Lok Adalath and hence, order - 10 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 passed by learned Magistrate is beyond jurisdiction. Apart from that, minimum sentence not less than one year has to be imposed which may extend to five years and minimum fine not less than Rs.1,000/- has to be imposed and hence, the order passed by the Trial Court is against the statute and the same does not come within the purview of Section 320 of Cr.P.C for compounding the offence even with the permission of the Court. When such being the material on record, the Trial Court has committed an error in passing the impugned order and the same requires to be quashed.

10. In view of the discussions made above, I pass the following: ORDER (i) Writ petition is allowed. (ii) The impugned order dated 11.09.2015 passed by the learned CIVIL Judge (Jr.Dn.,) and J.M.F.C. at H.B. Halli in C.C.No.506/2008 vide Annexure-D is hereby quashed. - 11 - NC: 2024:KHC-D:12646 WP No. 108036 of 2016 (iii) The matter is remitted back to the Trial Court for consideration in accordance with law. (iv) This is the matter of the year 2008 and hence, it is appropriate to direct the Trial Court to dispose of the same in accordance with law within a period of nine months from today. Sd/- (H.P.SANDESH) JUDGE NAA CT-MCK List No.: 1 Sl No.: 31