Page No.# 1/9 GAHC010012052013 2025:GAU-AS:12961 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./412/2013 BINOD GOGOI and ANR. S/O TILESWAR GOGOI R/O SRIPURIA SUKAPHA NAGAR, P.S. TINSUKIA, P.O. TINSUKIA DIST. TINSUKIA, ASSAM. 2: RAJESH DEORI S/O A DEORI R/O GATE NO. 700 SRIPURIA P.O. TINSUKIA P.S. TINSUKIA DIST. TINSUKIA ASSAM VERSUS THE UNION OF INDIA Advocate for the Petitioner : MR.P CHOUDHURY, MR.S NATH Advocate for the Respondent : MR.A K SARKAR, MR.D K DEY,SC, NF RLY BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT Date : 17-09-2025 None has appeared for the petitioners. Heard Ms. T. Debnath, learned counsel appearing on behalf of Mr. D.K. Page No.# 2/9 Dey, learned counsel, appearing for the respondents. 2. The present Criminal Revision Peition has been instituted under Section 401 Cr.P.C. assailing the judgment and order dated 13.08.2013 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No.15(2)/2013, upholding the conviction of the appellant herein, by the Court of learned Special Railway Magistrate, Tinsukia in SRCR 88/2011 under Section 145/146 of the Railways Act with modification of the sentence so passed by the learned Trial Court. 3. The prosecution case, in brief is that on the intervening night i.e. on 02.07.2011 and 03.07.2011 at about 12:40 AM at LC Gate No. 47 DD, the informant Sri Noni Gopal Mirdha, who was the gateman therein, had pulled down gate, as a train was to pass through the level crossing. At the relevant point of time, a tanker had arrived at the spot and the accused persons, who were in the tanker, started to shout upon the informant, and had also tried to apply force to open the railway gate. The informant having expressed his inability to open the railway gate, the accused persons abused him. In the meanwhile, a motor cycle rider had come to the spot and he had asked the accused persons to stop the menace they were creating. However, the said request was not paid any heed to by the accused. The matter was thereafter informed by the informant to the on duty ASM/NTSK West Cabin and he fled away from the spot to escape from the clutches of the accused persons, after opening the railway gate on the train passing through. On the complaint being lodged by the informant, the case was registered as RPF/POST/NTSK No.25/2011 under Section 145/146/153 of Railways Act. Page No.# 3/9 4. The accused persons including the petitioners herein, were arrested and forwarded to the Court of the learned Railway Magistrate, 1st Class, Tinsukia after observing all the necessary formalities. The learned Railway Magistrate vide order dated 16.11.2011, on considering the matter framed charges under Section 145/146 of the Railways Act, against the petitioners, herein, and they having pleaded not guilty to the said charges on the same being read over and explained to them, a trial ensued. 5. During the trial, the prosecution had examined 6 (six) witnesses and thereafter, the statement of the petitioners, herein, were recorded under Section 313 Cr.P.C.. The learned Trial Court after appreciating the evidence coming on record vide judgment and order dated 13.08.2013, proceeded to convict the appellants, herein, under Section 145 and 146 of the Railways Act and sentenced them to undergo RI for 6 (six) months and to pay a fine of Rs.500/- (Rupees Five Hundred) only under Section 145 of the Railways Act, in default to undergo RI for 15 (fifteen) days. The learned trial Court also sentenced the petitioners herein to R.I. for 3 (three) months and a fine of Rs.500/- (Rupees Five Hundred) in default RI for further 15 (fifteen) days each, for the offence under Section 146 of the Railways Act. 6. The petitioners, herein, along with one Pankaj Gogoi, being aggrieved by their conviction by the Trial Court, assailed the judgment and order dated 30.03.2013 passed by the learned Special Railway Magistrate, Tinsukia, before the Court of learned Sessions Judge, Tinsukia, by way of instituting Crl.A. No.15(2)/2013. The Appellate Court upon appreciating the evidences coming on record in the trial, was pleased vide judgment and Page No.# 4/9 order dated 13.08.2013 to uphold the conviction of the appellants, therein, under Section 145 and 146 of the Railways Act. Upon upholding the conviction of the petitioners, herein, and said Pankaj Gogoi, the learned Appellate Court proceeded to modify the sentence as passed by the learned Trial Court. The Appellate Court modified the sentence to that of R.I. for 2 (two) months and to pay a fine of Rs.500/- (Rupees five hundred), in default to undergo RI for further 15 (fifteen) days for the offence under Section 145 of the Railways Act, 1989 and further to undergo RI for 2 (two) months for the offence under Section 146 of the Railways Act. 7. I have heard the learned counsel for the respondents and perused the materials coming on record. 8. The learned Trial Court upon appreciating the evidences coming on record had drawn the following conclusion:- “17) It has surfaced that the tume, place and date of occurrence of incident have fully been made out by the witnesses in evidence to the extent that the incident occurred on the intervening night of 02.07.11 and 03.07.11 at about 00:40 hours at L.C. gate no. 47DD of Tinsukia. 18) Non examination of the independent eye witnesses is not a unearthly lacuna or deficiency here by considering the fact that at that hour of the day. it was unlikely that any independent eye witness could be found in and cell Past around the place of occurrence as the incident occurred midnight. As sach, the evidence presented by the railway employees as well as the RPF Personnel seem to be genuine, believable, reliable and fathomable by considering the fact that they rushed to the spot after getting information from PW.I and the Station Master of the NTSK Railway Station and as such were the eye witnesses to the incident. 19) From the above analysis of evidence on Record, it has unfurled that the Prosecution has been able to prove its case U/s, 145/146 of the Railways Act as it has cropped up from evidence on record that the accused persons were found committing nuisance and indecency at the place of occurrence on the relevant Page No.# 5/9 day and were also found committing willful obstruction to the Railway servants who were discharging their duties at the place of occurrence. As such, the accused persons are found guilty on two counts of offence Le, U/s, 145/146 of the Railways Act and accordingly they are convicted U/s. 145/146 of the Railways Act.” 9. Upon drawing the said conclusion, the learned Trial Court had convicted and sentenced the petitioners, herein, as noticed hereinabove. 10. On perusal of the conclusion drawn by the learned Trial Court, this Court finds that the same is supported by the evidences coming on record during the trial and no infirmity is found with regard to the conclusions drawn by the learned Trial Court, in the matter. 11. Accordingly, the conviction of the petitioners herein under Section 145/146 of the Railways Act, 1989 would not mandate any interference from this Court. 12. The Appellate Court vide judgment and order dated 13.08.2013 had drawn the following conclusion:- “11. On the basis of the evidence on record, it is clear that on the night of the occurrence, the accused persons created nuisance at the Railway crossing. They abused the Railway personnel present there and also assaulted the Railway personnel and the Railway contractor P.W.5 Sri Anupam Goswami. P.W.2, P.W.3, P.W.4 and P.W.5 have identified the accused persons as the one involved in abusing and assaulting the Railway personnel at the Railway gate on the night of the incident. The testimony of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 has remained unshaken in cross- examination. These witnesses have clearly stated in their deposition that on the night of the occurrence, the accused persons created nuisance at the Railway gate and abused and assaulted the Railway personnel and others. Page No.# 6/9 12. On the basis of the evidence on record, the Ld. Trial Court has not committed any error in coming to the finding that the appellants were guilty of committing an offence u/s. 145/146 of the Railways Act. Accordingly, the said finding and consequent conviction of the appellants u/s 145/146 of Railways Act is hereby upheld.” 13. The conclusion drawn by the Appellate Court has been perused and this Court finds that the same is supported by the evidences coming on record during the trial and no infirmity has been found with regard to such conclusion drawn in the matter. Accordingly, this Court is of the considered view that the same would also not mandate any interference. 14. Having drawn the above conclusion, this Court notices that the Trial Court, while considering the point of sentencing the petitioners, herein, had noticed the provisions of the Probation of Offenders Act, 1958, but however, the benefit thereof, was not extended to the petitioners on the ground of their conduct only by considering the nature of the offence committed by them. 15. It is also noted that the Appellate Court while considering the matter, had not considered the provision of the Probation of Offenders Act, 1958 and both the learned trial Court as well as Appellate Court had not assigned any special reason for not extending to the appellants, the benefit under the said of Act of 1959. 16. The Hon’ble Supreme Court in the case of Sitaram Paswan –vs- State of Bihar reported in 2005 (13) SCC 110, has laid down the provision for exercise of discretionary power under the Act of 1958 and the consideration required to be made in this connection. The Hon’ble Supreme Page No.# 7/9 Court has laid down that while exercising the discretionary power under the Act of 1958, the Courts are to consider the circumstance of the case, the nature of the offence and the character of the offender. It was also laid down that while considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact, which the offence had on the victim. 17. The power under the provisions of this Act of 1958 is permissible to be exercised even by the Appellate Court or revisional Court or by the Hon’ble Supreme Court while hearing the appeal under Article 136 of the Constitution of India. 18. This Court has noticed that the incident had occasioned on the intervening night of 02.07.2011 and 03.07.2011. As on date, more than 14 years have elapsed, since the date of occasioning of the said incident. The nature of offence and the manner in which it was committed, cannot be also said to be heinous or premeditated and the same was on account of altercation taking place in the matter between the parties. Further from the materials available on record, it is not been revealed that the petitioners, herein, had committed any similar nature of offence prior to the incident involved in the present matter and/or during the pendency of the same. It is seen that the petitioners, herein, were litigating the matter before the Courts for the last 14 years, initially before the Trial Court, thereafter before the Appellate Court and now presently before this Court in the present revision petition. 19. This Court, while upholding the conviction of the petitioners, herein, Page No.# 8/9 under Section 145/146 of the Railways Act, 1989, is of the considered view that for the reasons assigned, herein above, it is a fit case where the benefit of the provisions of the Probation of Offenders Act, 1958, should be extended to the petitioners, herein, by this court. 20. Accordingly, in view of the above discussion, the petitioners be given the benefit under the provision of Probation of Offenders Act, 1958 and consequently the sentencing of the appellant both by the learned trial Court as well as by the Appellate Court stands modified and it is provided that instead of sending the petitioner to jail, they should be given the benefit of Section 4 of the Probation of Offenders Act, 1958. 21. In view of the above discussion, it is directed that the petitioners, herein, shall file 2 (two) sureties to the tune of Rs.10,000/- (Rupee ten Thousand) only, each, along with personal bond before the learned Trial Court i.e. learned Special Railway Magistrate, Tinsukia and undertake to the effect that the appellants shall maintain peace and good behavior through the period of one year from the date of filing of the said Bond. The aforesaid bond be filed by the appellants within a period of 1 (one) month from the date of this judgment. 22. With the above observation and direction, the criminal revision petition stands disposed of. 23. Registry to send down the records of the case to the Court of the learned Special Railway Magistrate, Tinsukia along with a copy of this Page No.# 9/9 present order for enforcement and necessary action. JUDGE Comparing Assistant