State of Maharashtra Vs. Nasimkhan
Ahmad Khan Mali Khan  INSC 164 (17 August 1970)
17/08/1970 HEGDE, K.S.
CITATION: 1971 AIR 381 1971 SCR (2) 833 1970
SCC (2) 454
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.
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
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 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
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
Hardev Singh, for the respondent (in C.A.
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 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
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
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 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 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.