STATE OF MAHARASHTRA v. NASIMKHAN AHMAD KHAN MALI KHAN, ETC

'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 lllear the entrance they did not enter the bus but engaged the conC:uctor in talking. Accused No. 2 was one of the persons in vading 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 clown the bus service, run and operated by the loyal servants and to intimidate them by acts of violance and causing damage and destruction by fire to the vehicle. It is clear that on the rear side there were accus¥d Nos. 1, 3, 5 and 6 and others. On the front side there were accused No. 2 and two others, who had driver .......... " assaulted 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 con currently and the maximum sentence imposed on Accused N~ 1 (respondent in Cr. Appeal No. 181 of 1967) is two years and on the rest one year. The sentences imposed by the 1earned trial J ~dge cannot be considered by any standard as having been exces sive. The accused took lip 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 trial court or the conviction of the respondents. They merely prayed for alteration '1f 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 : B c D E F G H 83 6 SUPREME COURT REPORTS [1971] l S.C.R. "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 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 wbich they could better the condi tions of their lives they have 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. ) (I ) (a) of the Bombay Probation of Offenders Act, 1938, instead of sentenc_ing them at once to undergo imprisonment, ......... " Some of the findings reached by the learned judge are factually incorrect. His notions about the social purpose behind s. 5 (I )(a) of the Bombay Probation of Offenders Act, 1938 may endanger Jaw 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 com plained 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 per verted notions are considered as mitigating circumstances 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, 1938 reads· "Notwithstanding anything contained in any enact- ment 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 A B c D E F G H MAHARASHTRA v. NASIMKHAN (Hegde, J.) 837 A {bl 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 had to the age, charac ter, antecedents or physical or mental condition of the offender, or to the circumstances in which the offence was committed, it is expedient 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 enter ing 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 exceed ing three years as the court may direct, and in the meantime to keep the peace and be of good beha viour." In this case, the learned appellate judge did not take into con sideration the age or the physical or mental conditions of 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 riespe rate characters. The only thing that the learned appellate judge can be said to have considered is the circumstances in which the offences ··1ere committed. The fact that there was a call for strike is no 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 l!timself the right to remedy any wrong done to him. It is impossible tc have an orderly society, if we take to the ways of the jungle. There may be a genuine desire to change the pre sent social order but that must and can be done through the instru mentalities 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 co exist. 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. B c D E F G H 838 SU 0 REME COURT REPORTS (1971] l SC.R. We are told that as a result of this incident they have been dis- missed frcm 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) B of the Bombay Probation of Offenders Act, 1938. That purpose is now achieved. Hence we dismiss these appeals subject to ihe observations made above. A R.K.P.S. Appeals dismissed.