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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: NASIMKHAN AHMAD KHAN MALI KHAN, ETC.

DATE OF JUDGMENT: 17/08/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. DUA, I.D.

CITATION:  1971 AIR  381            1971 SCR  (2) 833  1970 SCC  (2) 454

ACT: Bombay  Probation of Offenders Act, 1938, s.  5(1)(a)--Scope of--If  should  have been applied in a case  where  strikers caused grievous bodily harm to loyal workers.

HEADNOTE: The  respondents  were  employees of  B.E.S.T.  running  bus services  in  the city of Bombay.  They were  members  of  a Union  known  as B.E.S.T. Union which declared a  strike  in August,  1963.  As a result several workers struck work  but some disregarded the call for strike and continued to  work. On the third day of the strike the respondents stopped a bus in   operation  and  attacked  and  seriously  injured   the conductor  and  the driver of the bus as well  as  a  police constable.   The  respondents  were  thereafter  tried   and convicted  on various, charges and the trial  judge  imposed sentences  of two years imprisonment on one  respondent  and one year imprisonment on the others.  In their appeal to the High,  Court  the  respondents  did not  challenge   their conviction but only prayed for alteration of the  sentences. The  learned single judge, while agreeing with the  findings of the trial court, took the view that the accused had acted on  a sudden impulse and on account of heat and anger;  that they did not belong to the regular class of criminals and in all the circumstances he directed the respondents to  enter. into  a  bond under s. 5(1) (a) of the Bombay  Probation  of Offenders  Act,  1938,  for specified  periods,  instead  of sentencing them to imprisonment. On appeal to this Court, HELD : The learned single judge seriously erred in  applying the provisions of s. 5(1) (a) in the present case. The learned judge did not take into consideration the age or the  physical or mental condition of the offenders.  So  far as the character of the accused was concerned, he could have considered  it only in the context of what they did  on  the day  of the occurrence.  There was no other material  before him.   The offences committed by them showed that they  were desperate characters.  The only thing that the learned judge could  be said to have considered were the circumstances  in which the offences were committed.  The fact that there  was a  call for strike is no ground for arson and assault  of  a

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grievous  character.   No  section of  the  society  can  be permitted to take law into its own hand.  There are ways  to remedy  social  injustices.   No individual  can  take  upon himself  the right to remedy any wrong done to him.   It  is impossible  to  have an orderly society, if we take  to  the ways of the jungle.  There may be a genuine desire to change the  present  social  order but that must and  can  be  done through  the instrumentalities of the State.  In  the  final analysis.  it  is the people of this country  through  their representatives that must decide the social goals. if social wrongs are sought to be remedied in the streets, then  there can be neither peace nor progress.  Without progress the Sup.CI(P)/71-9 834 attainment  of  social justice is  impossible.   Under,  our Constitution the rule of law has been made our way of  life. It is a fallacy to think that rule of law and the law of the jungle can co-exist. [837 D-G] [As  the  period of the suspended sentences  was  over,  the Court dismissed the appeal with the above observations].

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeals  Nos.  181 and 182 of 1967. Appeals  by special leave from the judgment and order  dated October  31,  1966  of the Bombay  High  Court  in  Criminal Appeals Nos. 356 and 357 of 1965. H. R. Khanna     and S. P. Nayar, for the appellant. Hardev Singh, for the respondent (in C.A. No.. 181/67). The Judgement of the Court was delivered by Hegde,  J.  In these appeals by special leave, we  are  only concerned with the question of sentence.  The respondents in Criminal  Appeal No. 182 of 1967 are not represented  though they were served with the notice of the appeal. The question of sentence in this case has assumed  consider- able  importances  In order to assess that question,  it  is necessary  to  refer  to the incidents that led  up  to  the prosecution of the respondents.  The respondents in both the appeals were prosecuted in case No. 254 of 1964 in the court of  Sessions  for Greater Bombay.  They  were  charged  with various offences.  These respondents were members of a Union known as B.E.S.T. Union.  In about the middle of August  _of 1963, that Union declared a strike.  B.E.S.T. is running bus services  in  the  city  of Bombay.   As  a  result  of  the declaration  of the strike several workers struck work.   It appears  that some of the workers disregarded the  call  for strike  and  continued  to work.  On the third  day  of  the strike when a single Decker but No. BMR 3561 was  proceeding on the road, the respondents and others stopped the bus  and the  respondent  in Criminal Appeal No. 181  of  1967  threw burning petrol on the conductor, Abdul Kadar as a result  of which  Abdul Kadar sustained several severe  injuries.   His face was partially burnt up.  At the time of the  occurrence one  of the respondents caused grievous hurt to the  driver, Kamalashankar  Mishra.  During the course of  the  incident, injuries  were also caused to police constable Namdeo  Arjun Kharat  who  was  on bandobast duty in  the  bus.   Injuries sustained  by  the  conductor  and  the  driver  were  quite serious.  The conductor sustained bums on the fare left  ear and in the arms and he had to be in the hospital for over 20 days.  The driver’s left ear was cut and the flap of the ear was hanging.  Further there was a fracture of cartilage. 835

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The learned trial judge summarised the prosecution case thus               "The miscreants had invaded the bus from  both               the sides : some came from the front side  and               some  from the rear near the  entrance.   They               were  not bona fide passengers.   Though  they               rushed  dear the entrance they did  not  enter               the bus but engaged the conductor in  talking.               Accused No. 2 was one of the persons  invading               the bus from the front.  He tampered with  the               machine  which stopped and the bus  could  not               start.  Some of them had assaulted the  driver               and  accused  No. 1 had thrown  the  container               with  the  burning petrol into the  bus  which               clearly  shows that the common object  of  the               offenders  was to break down the bus  service,               run and operated by the loyal servants and  to               intimidate  them  by  acts  of  violence   and               causing damage and destruction by fire to  the               vehicle.   It is clear that on the  rear  side               there  were  accused Nos. 1, 3, 5  and  6  and               others.  On the front side there were  accused               No.  2 and two others, who bad  assaulted  the               driver.......... From this summary of the facts found, it is quite clear that the offence committed by the respondents was a serious  one. It did not only result in serious damage to the bus it  also caused serious injuries to the conductor and the driver. After  taking all the facts into consideration, the  learned trial judge convicted the respondents under various charges. The  sentences imposed on various charges were made  to  run concurrently  and  the maximum sentence imposed  to  Accused No.-1  (respondent  in Cr.  Appeal No. 181 of 1967)  is  two years  and on the rest one year.  The sentences  imposed  by the learned trial Judge cannot be considered by any standard as having been excessive. The  accused took up the matter in appeal to the High  Court of  Bombay  and the same was heard by Paranjape  J.  At  the hearing  Counsel  for  the accused  did  not  challenge  the conclusion  reached by the trail court or the conviction  of the  respondents.They merely prayed for alternation  of  the sentences.  The learned judge. in our opinion   erroneously acceded  to this request.  He thought that on the facts  and circumstances proved in this case, it is sufficient to  take action  against  the respondents under s. 5 (1) (a)  of  the Bombay  Probation of Offenders Act, 1938.  This is what  the learned judge observed 836               "It   is  clear  that  these  offences   were-               committed by the accused who entertained wrong               notions as to- the manner in which they  could               make  the  strike successful.   Obviously  the               persons who had sponsored the strike were  the               leaders of the Union of which the accused were               members and no doubt the leaders of the  Union               could  have  observed  greater  restraint  and               could have controlled the members in a  better               manner.   But the fact still remains that  the               accused have acted on a sudden impulse and  on               account  of  the  heat  and  anger  that   was               generated,  they have committed these acts of               violence.   The accused do not belong  to  the               regular class of criminals.  They were  honest               workers  and  if  on account  of  their  wrong               notions  about the manner in which they  could               better the conditions of their lives they have

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             committed these offences, I do not see how any               useful  purpose will be served by asking  them               to   undergo   a  sentence   of   imprisonment               immediately.   I-think  a  better  social  and               useful purpose will be served if I direct each               of these accused to enter into a bond under s.               5 (1) (a) of the Bombay Probation of Offenders               Act, 1938, instead of sentencing them at  once               to undergo imprisonment. Some  of  the  findings reached by  the  learned  judge  are factually  incorrect.  His notions about the social  purpose behinds.5(1)(a)  of the Bombay Probation of  Offenders  Act, 1938 may endanger law and order.  It may encourage violence. The  learned  judge  seriously erred in  thinking  that  the respondents acted on a sudden impulse and on account of  the heat  and  anger that was generated.  It is clear  from  the facts  established in the case that the acts  complained  of were  done  after premeditation.  It was a concerted  and  a well  planned attack.  No one but a mad man commits a  crime without some motive or some real or imaginary grievance.  If perverted notions are considered as mitigating circumstances then there will be chaos in society.  We do not know  what the  learned judge meant by saying that the accused did  not belong  to a regular class of criminals.  Most  accused  who come  up  before courts are not old offenders  nor  do  they belong to any criminal tribe.  That does not mean that  the offence  committed  by  them should not be dealt  with  in accordance with law. Section 5 (1) of the Bombay Probation of Offenders Act,  193 8 reads               ,,Notwithstanding   anything   contained    in               any,enactment  for  the time being  in  force,               when-               (a)   any  male  person is.  convicted  of  an               offence   not   punishable   with   death   or               transportation for life, or               837               (b)   any woman is. convicted of an offence of               any kind, if it appears to the. court by which               the  offender is convicted, that regard  being               bad  to  the age,  character,  antecedents  or               physical or mental condition of the  offender,               or  to the circumstances in which the  offence               was  committed,  it  is  expedient  that   the               offender  should be released on  probation  of               good conduct, the court, may for reasons to be               recorded in writing instead of sentencing  him               at  once to any punishment, direct that he  be               released on his entering into a bond, with  or               without   sureties,  to  appear  and   receive               sentence  when called upon during such  period               not being less than one year and not exceeding               three  years as the court may direct,  and  in               the meantime to keep the peace and be of  good               behaviour." In this case, the learned appellate judge did not take  into consideration  the age or the physical or mental  conditions of the offenders.  So far as the character of the accused is concerned,  he could have considered it only in the  context of what they did on the day of the occurrence.  There was no other  material before him.  The offences committed by  them show  that  they are desperate characters.  The  only  thing that  the  learned  appellate  judge can  be  said  to  have considered is the circumstances in which the: offences  were committed.  The fact that there was a call for strike is  no

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ground  for arson and assault of a grievous  character.   No section of the society can be permitted to take law into its own  hand.  There are ways to remedy social injustices.   No individual  can  take upon himself the right to  remedy  any wrong  done  to him.  It is impossible to  have  an  orderly society, if we take to the ways of the jungle.  There may be a genuine desire to change the present social order but that must  and can be done through the instrumentalities  of  the State.   In  the final analysis, it is the  people  of  this country  through their representatives that must decide  the social goals.  If social wrongs are sought to be remedied in the  streets then there can be neither peace  nor  progress. Without  progress  the  attainment  of  social  justice   is impossible.  Under our Constitution the rule of law has been made  our way of life.  It is a, fallacy to think that  rule of law and the law of the jungle can coexist. After  having expressed our views on the question  presented for our determination and thereby corrected the error of law committed  by  the High Court, we feel there is no  need  at present  to send the respondents to jail by having  recourse to  our  power  under Art. 136  of  the  Constitution.   The offence in this case was committed as far back as in August, 1963.  The respondents are all workers- 838 We are told that as a result of this incident they have been dismissed  from service.  Most of them have not even put  in their appearance in these appeals.  The judgment of the High Court was delivered on 5th November, 1966 nearly four  years back.  The suspended sentence imposed by the High Court  has now  been  fully undergone by the respondents.  We  take  it that  the  State  filed these appeals primarily  to  get  an authoritative  interpretation  of  S.  5(1)  of  the  Bombay Probation  of  Offenders  Act, 1938.  That  purpose  is  now achieved.   Hence  we dismiss these appeals subject  to  the observations made above. R.K.P.S.                       Appeals dismissed. 839