ASHOK KUMAR MAHARANA Vs. STATE

JUDGEMENT

(1.) Petitioner calls in question legality of his conviction for an offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 (in short, 'Railway Property Act'). Petitioner was found guilty by learned Judicial Magistrate First Class, Khurda and sentenced to undergo rigorous imprisonment for one year and to pay a Fine of Rs. 1000.00 with default sentence of three months rigorous imprisonment. In appeal, conviction and sentence were maintained.

(2.) Though in the revision application several points were urged to label conclusion of courts below to be erroneous, Mr. S. K. Sahu learned counsel restricted the challenge to one point, which acceptably was not raised before courts below. According to him, prescriptions of Section 6 of the Probation of Offenders Act, 1958 (in short, the 'Act') was not kept in view by the courts below. Learned counsel for State submitted that this is a factual controversy as age of the offender is the determinative factor, while dealing with a case where applicability of Section 6 of the Act is in issue.

(3.) From the records I find that age of petitioner at the time of commission of offence was accepted by prosecution to be less than 21 years. Applicability of Section 6 can be raised for the first time in appeal or revision where there is no dispute regarding age of the accused at the time of commission of offence, since it is essentially a question of law. The age of the accused however, should be undisputedly below the prescribed limit. The inhibition on power to impose sentence of imprisonment applies not only at the stage of trial but also at a subsequent stage as evident from Sub-Section (1) of Section 11 of the Act. It is evident from the use of the expression "High Court or any other Court when the case comes before it on appeal or in revision" in the said provision. It is therefore, obvious even though point relating to applicability of Section 6 was not raised before courts below, it can be raised before appellate or revisional court, as the case may be. Similar view was expressed in Mohammad Aziz Mohammad Nazir v. State of Maharashtra, AIR 1976 SC 730 : 1976 Cri LJ 583.