NAGARAJversusUNION OF INDIA

                          [2019] 5 S.C.R. 851                            851


                             NAGARAJ                                     A
                                  v.
                        UNION OF INDIA
                 (Criminal Appeal No. 324 of 2019)
                       FEBRUARY 21, 2019                                 B
               [ABHAY MANOHAR SAPRE AND
                 DINESH MAHESHWARI, JJ.]
       Railways Act, 1989 – s.160(2) – Opening or breaking a level
crossing gate – Appellant -driver while driving the bus hit it against   C
the railway crossing gate – Due to the said hit, the railway crossing
gate was broken – Trial Court found appellant guilty for commission
of the offence u/s. 160(2) of the Act and he was sentenced to undergo
simple imprisonment for a period of six months – Appellate Court
affirmed the conviction – In Revision, High Court upheld the order
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of the Appellate Court – On appeal, held: Three Courts below, on
appreciation of evidence had found that appellant had committed
offence – Such finding being concurrent finding of fact is binding
while hearing appeal u/Art.136 of the Constitution – However,
appellant has already undergone one month’s jail sentence and the
offence in question was neither against the society nor it involved      E
any moral turpitude nor it resulted in causing any harm or injury to
any human being except causing some damage to the railway
property – Thus, jail sentence altered to “what appellant has already
undergone”.
      Partly allowing the appeal, the Court                              F
      1. The first submission of the appellant that he was wrongly
convicted 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         G
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. [Para 16]
[854-E-F]

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                                 851
852             SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A           2. However, 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
B
      offence is now 13 years old. [Para 18][854-G-H; 855-A]
            3. Keeping in view the aforementioned three reasons and
      in the interest of justice, the six months’ jail sentence awarded
      to the appellant by the three Courts below deserves to be
      altered to “what has already undergone by the appellant till date”.
C     [Para 19][855-A-B]
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 324 of 2019.
            From the Judgment and Order dated 15.03.2018 of the High Court
D     of Karnataka Dharwad Bench in Criminal Revision Petition No. 100297
      of 2017.
           Anand Sanjay M. Nuli, Dharm Singh, Prawal Mishra, Suraj
      Kaushik (for M/S. Nuli & Nuli), Advs. for the Appellant.
            R. Balasubramanian, Bharat Singh, Akshay Amritanshu, Mukul
E     Singh, R. B. Yadav (for Mrs. Anil Katiyar), Advs. for the Respondent.
             The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. Leave granted.
             2. This appeal is directed against the final judgment and order
F     dated 15.03.2018 passed by 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
G     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. 350-5-6, which was set up on the railway line between Chalageri
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                  NAGARAJ v. UNION OF INDIA                                    853
                  [ABHAY MANOHAR SAPRE, J.]

and Ranebennur Railway Stations. Due to the said hit, the railway crossing     A
gate was broken.
      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.                           B
       6. The appellant was, therefore, prosecuted for commission of
offence punishable under Section 160(2) of the Railways Act, 1989 by
the Principal Civil Judge and 1st Additional JMFC, Ranebennur and
pursuant to which FIR No.385/2006) was lodged against him on
04.08.2006 in RPF Police Station, Ranebennur.                                  C
                                                      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 and was accordingly sentenced to undergo simple
imprisonment for a period of six months.
      8. The appellant felt aggrieved and filed appeal before the              D
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      E
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.
      10. Heard Mr. Anand Sanjay M. Nuli, learned counsel for the              F
appellant and Mr. R. Balasubramanian, learned counsel for the
respondent.
       11. The submission of learned counsel for the appellant was three-
fold. In the first place, he contended that the appellant was wrongly
convicted for an offence punishable under Section 160(2) of the Railways       G
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.


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854             SUPREME COURT REPORTS                             [2019] 5 S.C.R.


A            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 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
B
      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
C     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
D     impugned order and contended that 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.

E           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
F     binding on this Court while hearing appeal under Article 136 of the
      Constitution.
             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.
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             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
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                  NAGARAJ v. UNION OF INDIA                                     855
                  [ABHAY MANOHAR SAPRE, J.]

some damage to the railway property, viz., one railway crossing gate;           A
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 months’ jail sentence awarded to the appellant by the three Courts
below deserves to be altered to “what he has already undergone by the           B
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             C
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        D
jail sentence in this case except what he has already undergone.
      22. The appellant is already on bail, his bail bond is discharged.


Ankit Gyan                                             Appeal allowed partly.
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