H.N. Kapoor, J.
1. This is a revision against the order and judgment dated 6-9-1973 in Criminal Appeal No. 496 of 1972, affirming the conviction and sentence of the applicant Under Section 3 of the Railway Property (Unlawful Possession) Act.
2. The prosecution case is that the applicant was Assistant Sub-Inspector in the Railway Protection Force and was [posted at Agra. On 17-5-1969. Sub-Inspector C. N. Mehrotra of Railway Protection Force at Agra Cantt. received information through an informer that many utensils and brasswares had been stolen away from the transhipment shed of Agra Cantt, in the night between May 14 and 15, 1969 and utensils were still in the Railway quarter occupied and resided by Behari Lai. He along with others first went to the police station and took a Head Constable with him. He also picked up Illahbadi and Babu Khan as witnesses. When they were near the quarter of the applicant they saw Nauhat Lai (who was co-accused) coming from the house of Behari Lai with some utensils (Exs. 3 and 33). He informed them that he had purchased the same from the house of Behari Lai. The Sufc-Inspector prepared recovery memo (Ex. Ja-7), He also recorded statement of Naubat Lai (Ex. Ka-8) and proceeded to the house of Behari Lai. He took search of his house. His storeroom was opened with a key produced by Behari Lai, 'His Sub-inspector re- covered three empty bags with railway marks and many utensils (Exs. 37 to 383) from his house, besides woollen clothes, other clothes and boxes etc. A recovery memo was prepared. Sub-Inspector Mehrotra conducted the investigation of the case. After completing the investigation he filed a complaint against the applicant and Naubat Lai who were duly tried. Naubat Lai admitted that he purchased the utensils from Behari Lai for Rs. 100.00. He received the utensils from Behari Lai in lieu of his debts as Behari Lai owed Rs. 200.00 to him. Behari Lai at first denied that there was any recovery of these articles from his house but later on he .admitted the recovery of clothes and utensils etc. from his house and he stated that he had purchased these articles from Morada-bad and Agra in connection with the marriage of his sisters. Obviously he did not accept the recovery of three bags from his house. The utensils were put up for test identification and were identified by the owners. Recovery had been proved. The learned Magistrate on the basis of the appraisal of evidence found the case proved against Behari Lai and convicted and sentenced him to two years' R.I. and to pay a fine of Rupees 2,000.00. In default of payment of fine he was ordered to go further R.I. for 6 months. Naubat Lai was, however, acquitted as it was not proved that the two articles recovered from him were railway property. The order was confirmed in appeal. Feeling aggrieved the applicant has filed this revision.
3. Before the lower appellate court, only following two points were argued. (1) copies of the statements of P. Ws. recorded during the enquiry were not supplied to the applicant. (2) statements of P. Ws. recorded during the enquiry were got signed by the P. Ws,
4. Second point now stands concluded by a decision of the Hon'ble Supreme Court in the case of State of U.P. v. Durga Prasad : 1974CriLJ1465 . Only first point was therefore pressed before me. In support of this contention reliance was placed on the decision of Mohd. Sayeed v. State 1977 Cri LJ 902 (All) decided by Asthana, C.J. It was no doubt held in that case that compliance of provisions of Section 173, Cr.PC was necessary in a case which was investigated by Railway Protection Force under the Railway Pro-jperty (Unlawful Possession) Act. He also took the view that the statement re corded by the officer making investigation under that Act would be covered by Section 173, Cr.PC In taking this view he has placed reliance on the case of Indal Singh v. State 1972 All Cr J 188 : 1972 BCLJ 183. I find that in the case of Indal Singh reliance had been placed on an earlier Single Judge decision in the case of Durga Prasad v. State 1971 All WR (HC) 175 : 1971 Cri LJ 1582. That very decision has been reversed by the Hon'ble Supreme Court in the case of State of U.P. v. Durga Prasad : 1974CriLJ1465 . Obviously, this decision was not brought to the notice of the Hon'ble Chief Justice who decided the case of Mohd. Sayeed v. State (supra). Once it is held that the investigation made by an officer of the Railway Protection Force under the Railway Property (Unlawful Possession) Act, is not an investigation Under Section 161, Cr. P. C and as such Section 162, Cr.PC is not attracted, it will naturally follow that the provisions of Section 173, Cr.PC also do not apply to such a case. It was so held, by Parekh, J. in the case of Prem Chan- i dr.a v. State 1973 All LJ 565. I respectfully agree with the view taken by Parekh, J. In my opinion the decision in the case of Mohd. Sayeed v. State (Supra) cannot be considered to be good law in view of the authority of the Hon'ble Supreme Court in the case of State of U. P. v. Durga Prasad (supra) reported in : 1974CriLJ1465 . I, therefore, do not consider it necessary to refer this matter to a larger Bench as in my opinion the matter stands concluded by the authority of the Supreme Court.
5. learned counsel for the applicant next argued that the sentence is excessive. He has filed an affidavit to the effect that the services of the applicant have already been terminated in 1972, that he has a large family to support consisting of his one son, four daughters and wife. It is further stated that he is suffering from tuberculosis. The affidavit has been supported by the patient's outdoor card and prescription. He has prayed that benefit of the U. P. First Offenders' Probation Act be given to the applicant. The age of the applicant is given as 45 yeans. The Scheme of the U. P. First Offenders' Probation Act is that it is primarily meant for youthful offenders. It is, therefore, not possible to give benefit of the U. P. First Offenders' Probation Act to the applicant. However, under the circumstances of this case specially in view of the fact that the applicant is suffering from T.B. in my opinion, no useful purpose will be served by sending the applicant to jail again. He has already undergone sentence of imprisonment for about a month. He has also been sentenced to a fine of Rs. 2,000/- His sentence of fine can be maintained.
6. In the result the revision is partly allowed to this extent that the conviction of the applicant Under Section 3 of the Railway Property (Unlawful Possession) Act is maintained but the sentence of imprisonment is reduced to the sentence already undergone. The sentence of fine is, however, maintained. In default of payment of fine, the applicant shall undergo further R.I. for six months. The applicant is allowed three months time to deposit the fine. He is on bail. Hi.s bail bonds shall stand automatically discharged after the fine is deposited.