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Emperor Vs. Balkrishna Hari Phansalkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Revision No. 171 of 1932
Judge
Reported in(1932)34BOMLR1523
AppellantEmperor
RespondentBalkrishna Hari Phansalkar
Excerpt:
emergency powers ordinance (ii of 1932), sections 4, 39, 51-power of governor general to promulgate ordinance-time of application and areas to be affected can be fixed by a third party-government of india act (5 and 6 geo. v, c. 101), sections 65, 71,12, 107-high court-powers of superintendence-governor general or indian legislature cannot take, away the powers-special courts treated by ordinance-courts 'subject to appellate jurisdiction of the high court'-superintendence of high court extends over such courts-amended letters patent, clauses 27, 88,29, 44-criminal procedure code (act v of 1898), sections 435 to 489-revision powers of high court-powers of superintendence under letters patent-such powers can be taken away by indian legislature or by governor general.;under section 72 of.....john beaumont, kt., c.j.1. in this case we have already held that we possess powers of superintendence. but the exercise of a power of superintendence is not the same thing as the hearing of an appeal. we have, i think, a discretion to revise or bet aside any conviction under our powers of superintendence; but we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. it is suggested in this case that the order was illegal for this reason. the order was originally made by the district magistrate ofsholapur, and it is an order which in terms has to be carried out within the district of sholapur. but the order was served on the accused when he was in jail at bijapur. the rights of the district magistrate arise in this way......
Judgment:

John Beaumont, Kt., C.J.

1. In this case we have already held that we possess powers of superintendence. But the exercise of a power of superintendence is not the same thing as the hearing of an appeal. We have, I think, a discretion to revise or Bet aside any conviction under our powers of superintendence; but we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. It is suggested in this case that the order was illegal for this reason. The order was originally made by the District Magistrate ofSholapur, and it is an order which in terms has to be carried out within the District of Sholapur. But the order was served on the accused when he was in jail at Bijapur. The rights of the District Magistrate arise in this way. Section 57 of the Ordinance authorises the Local Government to invest the DistrictMagistrate with the powers of the Local Government under Sub-section of Section 4, and in pursuance of that authority the Local Government did on January 5, 1932, publish a notification stating that in exercise of the powers conferred by Sub-section (1) of a, 57 of the Emergency Powers Ordinance, 1932 (II of 1932), the Governor in k Council hereby invests all District Magistrates including the Commissioner of Police, Bombay, with the powers of the Local Government under Sub-section (1) of Section 4 of the said Ordinance. The notification is not, I venture to think, very artistically worded. If the words be taken literally, the Governor invests all District Magistrates and the Commissioner of Police, Bombay, with these particularpowers. which suggests that all the District Magistrates and the Commissioner of Police, Bombay, must act in the matter as a sort of corporate body, A power conferred on all. Magistrates is not the same thing as a power conferred on each Magistrate. But, when one has regard to the nature of the office of District Magistrate, and Commissioner of Police, Bombay, one cannot, I think, construe the order as meaning that, and I am disposed to think that what the order really means, and should be construed as meaning, is that the Government invests each District Magistrate with the powers of the Local Government in his particular District. It is then said that if that is the meaning of the order, the District Magistrate of Sholapur could not make an order and serve it upon somebody in Bijapur. It is not, 1 think, necessary to consider exactly what was the power of the District Magistrate of Sholapur in the matter, because I am clearly of opinion that if there was any irregularity, it was waived by the accused. He did not remainoutside the District of Sholapur, and he did not take the point that the order had not been validly made, or had not been validly served upon him. If he had taken such a point, the order could have been re-issued and re-served ; but he came within the District of Sholapur, and for a considerable period obeyed the order, and, in my opinion, he waived any irregularity that there might have been in the order. It was then suggested that another defect in the order was that it was not justified by the terms of Section 4 of the Ordinance. Apart from other considerations, I think that Section 59 of the Ordinance is a complete answer to any argument of that sort, because that section provides that no proceeding or order purporting to be taken or made under the Ordinance shall be called in question by any Court. The Magistrate was, therefore, bound to treat the order as properly made.

2. Then the next point which was taken, and one which merits serious consideration, was with regard: to the sentence. I think that our powers of superintendence are certainly wide enough to enable us to alter a sentence. But, on the other hand, we have to remember that it is for the trial Court toinflict the sentence, and we are not justified in altering the sentence which the Magistrate has thought fit to inflict merely because we may think that we our- selves would have inflicted a different sentence, We have got to be satisfied that the Magistrate has erred on some point of principle. Apart from actual illegality in sentence, if one had a case in which the accused admitted breaking an order to report himself to the police, but said that his failure to report was due to an accident or was inadvertent, and that he had no intention of disobeying the order in future, and one found in such a case that the Magistrate had inflicted the maximum sentence, I think we should be bound to say that the Magistrate had not exercised, as he was bound to do, a discretion in the matter, and we could interfere. But putting it generally, I think we are in great difficulty in cases of this sort, because we have really no standard by which to measure the sentence. Where in the administration of the ordinary criminal law we are asked to revise a sentence, we have the experience of many other cases of a similar nature to guide us in determining whether the sentence is right or not, Here we are dealing with a matter which is made an offence under a particular Ordinance, in the interests of the preservation of public peace and for a limited time, and we have no experience which assists us in saying what sentence should be imposed. Now, what had the Magistrate before him in this case when he was considering the proper sentence He had, in the first place, the fact that the accused is a pleader, a man who knows the law, and a man of middle age. He also had the fact that the breach of the order was deliberate. The accused says that he thought that compliance with the order was humiliating, and that he was not prepared to obey the order which required him to report to the police. So that it comes to this that the accused deliberately disobeyed the order, and intends to disobey it in the future. Whatpenalty ought the Magistrate to impose for a breach of that nature It was suggested with some courage by Mr. Thakor that the prosecution should have led evidence to 'how that a breach of this particular part of the order to report himself to the police was a serious matter likely to lead to serious: consequences, and that in the absence of such evidence the Magistrate should have assumed that the offence was a trivial one. But, in my opinion, evidence that the offence was either serious or trivial would be wholly irrelevant and inadmissible. Such evidence would really involve a consideration of the grounds upon which the order was made by the executive officer, and that is a matter into which no Court can enter. The Magistrate had simply got the facts that an order had been broken, an order which was made in the L interests of the preservation of public peace, and which the Magistrate must assume was properly made ; that the order had been deliberately broken, and that there was no expression of regret by the accused and no promise to obey the order in future. He was bound to take into account the question of what effect on other people in his neighbourhood the breach of the order by the accused was likely to have, that is to say, he had to consider the effect of the sentence as a deterrent upon other people. On that particular point he is of course in a far better position to form an opinion than this Court, which does not know the local conditions. The fact that the accused thought it humiliating to obey the order was not a matter, as itseems to me, to which the Magistrate could attach any importance, If an order is made by a competent authority, it must be obeyed, and it can be no excuse for a person to say that he considers it a humiliation to obey it It might very well be that a man accustomed in his own country to go about armed would consider it humiliating if compelled to go unarmed. Nevertheless he would have to comply with an order which required him to go unarmed. Having regard to all the facts, there is, in my opinion, no ground, consistent with the principles on which this Court acts in revising sentences, which can justify us in interfering with this sentence.

3. There is one comment on the judgment of the learned Magistrate which is, I think, legitimate, and that is that he does refer in one place to about thirty youths having conducted themselves in a way in which he thinks they would not have done but for the example of such people as the accused. I think he was wrong in referring to a matter as one of fact which had not been proved in the case, and if I thought that his view as to the proper sen-tence had really been affected by facts which were not proved, I should have been in favour of sending the case back to him to ascertain what sentence he would have imposed on the basis that those facts ought not to be taken into account. But I am quite satisfied that those facts did not really affect the. sentence which he was imposing. He was considering the effect on the neighbourhood of conduct such as that of which the accused was guilty, and I think he only referred to the thirty youths by way of illustration. I do not think, therefore, that that is a ground on which we should be justified in interfering. I think, therefore, that we cannot make any order on the reference.

Broomfield, J.

1. On the merits of the case, the first point taken by Mr. Thakor was that the District Magistrate of Sholapur had no jurisdiction to make the order under a 4 of theOrdinance, because at the time when the order was made the accused Was in jail at Bijapur. The accused is a pleader living and practising at Pandharpur in the Sholapur District, and it appears that after his arrest he was taken to the Bijapur jail because there happens to be no jail in Sholapur. In connection with this point, the first thing to note is that the notification of January 5, which has been already referred to and read, invested all District Magistrates including the Commissioner of Police, Bombay, with the powers of the Local Government under Sub-section (1) of Section 4, The notification follows the wording of Section 57 of the Ordinance. It would have been very easy to state in the notification that the District Magistrates were invested with the powers of the Local Government within the limits of their respective districts. But the Ordinance does not say this and as it stands, it appears to me to mean that every District Magistrate is given the powers of the Local Government under Sub-section (1) of Section 4 without territorial limit. It is, of course, a well settled principle of construction that the Courts cannot speculate as to the intention of the legislature unless the language is fairly capable of different constructions or unless the literal construction would lead to a manifest absurdity. Speaking for myself, and with the greatest deference to the learned Chief Justice, I feel a doubt as to whether this can be said to beso. It might, I think, be necessary to regulate the movements of a person within wider limits than a single district, or to regulate the user of property situated in more than one. And yet in an emergency it might not be possible to obtain the concurrence of several District Magistrates in time to avert the danger. I think it possible, therefore, that the notification may mean exactly what it says. But apart from that point, even if one is to apply the ordinary Criminal Procedure Code rule as to territorial jurisdiction, I am of opinion that the District Magistrate, Sholapur, was the proper authority to make the order which was made in this case, The jurisdiction of Courts under the Criminal Procedure Code ordinarily depends not upon the place where the accused happens to be at the time the order is made, but on the cause of action, if I may use a convenient expression which is more commonly used in connection with civil proceedings. We have to note the language of Section 4. before making an order the Local Government or the District Magistrate must be satisfied that there are reasonable grounds for believing that any person has acted, is acting, or is about to act, in a manner prejudicial to the public safety. Now, in this case it seems fairly obvious that anything done by this accused must ' have been done in Pandharpur where he lives and practises, and anything likely to be done by him was presumably likely to be done also in Pandharpur within the Sholapur District, The order clearly could not have been made on account of what the accused was doing in the jail at Bijapur, and, in my opinion, the District Magistrate of Bijapur could not have made this order. Possibly he could have made another kind of order under the section directing the accused to remain in Bijapur or to conduct himself in some particular manner within that district. The section itself provides that an order made is to be served on the person to whom it relates in the manner provided in the Code for service of a summons, and Section 73 of the Code enables a summons to be served outside the local limits of the Court's jurisdiction, In my view, therefore, the District Magistrate's order was a valid order.

2. Mr. Thakor's second point on the merits appears to be that the order of the District Magistrate was not one which could legally have been made under Section 4 We are only concerned with condition No. 7 of the conditions imposed by the order, because that was the only condition which has been broken, That condition was that the accused should report himself to the officer in charge of Pandharpur Town police-station three times a day. The condition was presumably imposed underClause (d) of Section 4, Sub-section (1), of the Ordinance, which enables a, direction to be made that a person shall conduct himself in such manner, abstain from such acts, etc, as may be specified in the order. Mr. Thakor's argument is that the direction which is to be given must have reference to the reasons for the order given in the first paragraph of the section, that is to Bay, there must be reasonable grounds for believing that a person has acted, is acting, or is about to act, in a manner prejudicial to the public safety or peace. Therefore, Mr. Thakor says, the conduct directed must be such as to prevent the accused from acting in such a manner, Assuming that to be so, I can see nothing illegal in the condition imposed in this case, which appears to me to come clearly within the terms of S; 4. The Local Government, or the District Magistrate to whom the powers of the Local Government are delegated, is in the best position to decide what steps are necessary to preserve the peace, and it seems obvious that in certain circumstances ah order to a person considered to be of adangerous, character to report to the police morning and evening may be a very effective method of doing so. It is to be noted that one of the conditions imposed in this case was that the accused should not leave Pandharpur. I think there is no real substance in this point either.

3. Another argument put forward by Mr. Thakor is of a more fundamentalcharacter, but I think even less tenable. He maintained that it is not enough for the prosecution to prove that an order has been made under the power given by the Ordinance, and that the order has been disobeyed, but that ifc must farther prove the justification for the order. This must be dona, ifnecessary fund in many cases it could only be done,) by calling the responsibleauthority as a witness. How the District Magistrate is to find time to deal with an emergency if he is being continually summoned to Court to justify his action, one does not know. It would obviously be necessary to find some other and probably more drastic method of enforcing the provisions of the Ordinance than a judicial trial. But I think this is not a correct statement of the legal position. Under Section 4 the District Magistrate and not the Court has to be satisfied of the necessity for the order. He is the sole judge of that necessity. The reasons that satisfy him may be confidential. In any case they do not concern the Court trying an offence under Section 21, The Court has only to be satisfied that an order or direction has been made in accordance with the provisions of Section 4, and that it has been disobeyed. That is the view taken by the Special Magistrate and by the Sessions Judge in appeal. I think it was the correct view.

4. That leaves nothing which can possibly call for revision, except the alleged excessive severity of the sentence. I think in none of the numerous cases cited before us in the course of the arguments has a High Court interfered in exercise of its general power of superintendence on such a ground as this. According to my experience even the power of revision given by the Criminal Procedure Code is very rarely exercised on such a ground alone. I am not prepared to say that it never could be a sufficient ground for interference under Section 107 of the Government of India Act, but I do certainly hold, and in this I entirely agree with the learned Chief Justice, that unless some obvious question of principle is involved, we should not interfere, Generally speaking, the lower Courts with their knowledge of local conditions are in a better position than this Court to determine what is a just and reasonable punishment. If the punishment awarded is in excess of the maximum allowed by the law, if it is of a kind forbidden by the law, and, apartfrom illegality, if it is patently unreasonable, as, for instance, if the maximumsentence were to be given for an offence by a mere boy or for a technical offence orfor an offence committed by inadvertence, in such cases there might be a good reason for interference. But if as in this case there is acelebrate breach of a legal order by an adult person, an educated man who knows perfectly well what he is doing, and means to do it, I know no standard by which it can be said that any sentence not exceeding the legal maximum is excessive. These emergency Ordinances are an Exceptional form of legislation. Fortunately they are also novel. So there are few precedents. It is not suggested th the sentence in this case was butof proportion to those generally imposed in similar cases. Mr. Thakor pointed out that the accused is only alleged to have broken one of the seven conditions named in the order, that of reporting to the police. Bat for anything we know to the contrary that may have been a moat important condition, It must be remembered that the Ordinance, which we have to take to be a necessary evil, is not likely to serve its purpose if it is not enforced. Deliberate disobedience is not, therefore, a trivial matter, and further it may be necessary, as the lower Courts thought it was necessary in thifi case, to make an example of people of influence who defy the Ordinance, lest defiance become wide-spread. It seems to me to be no answer to say that all persons disobeying the Ordinance might be imprisoned for six months, and that this might furnish a standard of punishment. There are obvious limits to the capacity of Government to keep offenders in confinement, especially in a time of emergency. The suggestion that evidence ought to have been placed before the Court as to the consequences of the accused's disobedience or the consequences that might have ensued if he had not been arrested seems to me impracticable and unwarranted. It is impracticable because in a time of emergency the consequences of unchecked defiance of orders which the Executive holds necessary for the preservation of the public peace are incalculable. You cannot in fact isolate the consequences of an individual case of disobedience. It seems to me to be an unwarranted suggestion because it does not appear that the prosecution in this case was pressing for an exemplary sentence. The matter of sentence was left entirely to the discretion of the Court. If the Magistrate thought that he required further information to enable him to determine the proper sentence, he might have asked for it, although, if he wanted information an to the probable consequences of the accused's act, it is not likely that he would have obtained it. Anyhow apparently he did not consider further information necessary. Both the Magistrate and the Sessions Judge in appeal have exercised their discretion, and I am not prepared to say that they have not done so in a judicial manner. In my opinion, therefore, this application should be dismissed.

5. We have no doubt a residuary power of superintendence under a 107, which is not taken away by the Ordinance. Bat it is a power of superintendence over the Courts and not over the Executive: an obvious point, which nevertheless, it seemed to me, was occasionally overlooked in the course of the argument. I am notsatisfied that the Courts in this case have been guilty of any illegality or irregularity such as to call for interference.

Nanavati, J.

1. The first point that has to be decided arises from the fact that the order was served on the accused atBijapur. The order has been passed by the District Magistrate of Sholapur, and it appears that the accused is apermanent resident of that district. I do think that the powers conferred on the District Magistrate by the Government notification already referred to must have reference to the district of which he is the Magistrate. Section 10(2) of the Criminal Procedure Code says:-

In every district outside the presidancy-towns the Local Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.

2. It seems from this quite clear that the District Magistrate is such only with reference to his district, and that his powers as aDistrict Magistrate are also limited to his district. He can give orders only to persons within his district, because only they are subject to his jurisdiction. The power of a Court to serve a summons outside the local limits of a Court's jurisdiction furnishes no real parallel to the present case; and in any case that power had to be expressly conferred by the Code, while the Ordinance is silent on the poinb before us.

3. But in the present case the order of the District Magistrate, Sholapur, was with reference to a person permanently residing within his district, and it was to be obeyed within that district. The only special feature is that it was served on the accused when he was at Bijapur. If as a matter of fact the accused had not returned to Sholapur, or if when he returned to that district he had taken up the position that the order served on him at Bijapur was not a legal order within the Ordinance, there might have been something more to be said in favour of this point. But it appears that he did attempt to obey the order for a certain time, and that even at the trial he has not taken the point that it was served on him at Bijapur. In these circumstances, itseems to me that the service outside the district was an irregularity which has caused no substantial injustice or hardship, and is not such as would call for interference in revision.

4. As regards the second point whether the order to report himself to the police three times a day was one that could legally be made under Section 4 of the Ordinance, it seems to me that the Ordinance has given such wide powers that it is not competent to the Court to go behind the discretion of the District Magistrate in' that matter. The Court must assume, until the contrary is shown that the order has been made for preventing the accused from acting in a manner prejudicial to the public safety or peace. That being so, and the disobedience being admitted, the offence in this case is complete.

5. That brings me to the question of sentence passed in the case. Here I am in the unfortunate position of having to differ from the majority of the members of this Bench, and as the most junior member of it, it is not without diffidence that I have come to a different conclusion. But having come to that conclusion, it becomes my duty, to state as briefly as possible my reasons for the view that I hold. The finding that the offence has been committed is, after all, a mere skeleton of the facts necessary for passing a proper sentence. The Ordinance itself gives discretion to vary the sentence from a nominal fine up to rigorous imprisonment for two years and an unlimited amount of fine. Therefore, it aeems to me that the legislature (in this case the Governor General) has recognised that offences punishable under this section can and must vary greatly in gravity. If the legislature had thought that because of exceptional times every offence of disobedience to an order must be punished with extreme severity, there was nothing to prevent the legislature from saying so, and, enacting that every offence under the section shall be punishable with so much imprisonment and so much fine. Minimum sentences are not unknown to the Indian law, and the mostwell-known example of that is the sentence provided for the offence of murder under Section 302 of the Indian Penal Code. The legislaturehas not left it to the discretion of the Court, if it finds an accused guilty of murder, to punish him with anything less than transportation for life. But in this case the legislature having left the quantum of punishment to the discretion of the Court, it has recognised not only that offences may vary in gravity, but also that there are no considerations of emergency or of public policy requiring every offence to be punished with extreme severity. It has imposed on the Court the duty of assessing the gravity of the particular offence and has required it, by the exercise of its discretion, to fit the punishment to the crime. That discretion the Courts are bound to exercise on well-known judicial principles, In imposing sentence for an offence in any case that comes before the Courts, they always take all the circumstances of the offence into account. If in any case the Court has not sufficiently taken into account the relevant circumstances, and has seriously gone wrong in assessing the punishment, or has not exercised any judicial discretion in assessing the punishment, the High Court in its power of superintendence does interfere to set the matter right. It was suggested by the learned Advocate General that the power of superintendence does not extend so far, and he cited the case of Adya Saran Singh v. Jagannath I.L.R. (1924) All. 323 in support, but a reference to the case of Pigot v. Ali Mohammad Mandal I.L.R. (1920) Cal. 552 shows that the power of superintendence can be used to set right all forms of judicial highhandedness, and 1 venture to think that under this power, if a Court has failed to exercise its discretion in assessing the sentence, that would be a proper ground for interference. If I understood nay brother Broomfield aright, he also conceded that if a sentence was patently unreasonable, that might be a reason for interference. With respect I agree with that view, and itseems to me that the present case clearly comes within that description, and that in imposing the sentence that has been imposed the Magistrate has not proceeded on well-known ordinary judicial principles. If this were a solitary case the matter might not be of general importance however important it might be to the particular accused concerned. But three other cases of a similar kind have been called on along with this case in two of which the sentences are even more disproportionate being the maximum sentences awardable and in which the Magistrate has not even discussed the question of sentence or given any reason at all for giving the maximum term of imprisonment for a first offence, Indeed there is reason to believe that this failure to exercise the discretion vested by the Ordinance itself in the Courts is so widespread that it is all the more necessary for this Court to draw attention to the need for moderation and a due sense of proportion in assessing the sentences.

6. In the present case there is one special feature, namely, that the Magistrate has referred to matters outside the evidence, which, as has been already pointed out, he should not have referred to, unless it was merely by way of illustration. I mean his reference to the fact that ' thirty youths have recently been run in for taking part in the civil disobedience movement in this town'. He further adds, ' It is influential men like the accused who delude these young men and boys into a false ideal of partiotisim...' I find myself unable to aay that this consideration not based on any evidence did not influence the Magistrate in imposing the very heavy sentence that he has imposed.

7. The second point, and it is one of general application in other cases of this type, is that the accused, in giving a reason for his disobedience of the order, stated that he felt that it was a humiliating order. Whether he considered it humiliating or not, it must be conceded that under the Ordinance it was an offence to disobey it; but when be has to be punished for the disobedience, I think it is a relevant consideration whether he disobeyed the. order from a spirit of defiance and from a desire to indulge in activities dangerous to the public peace or because he rightly or wrongly felt the order to be humiliating. Section 585 of the Criminal Procedure Code enables orders to be passed against persons requiring them to report themselves periodically to the police, but such an order under that section can only be passed against a person who, having been convicted of a serious offence like theft or house-breaking, is again convicted of a similar offence. In practice such an order is rarely passed against a person who has not had several previous convictions. Similarly, orders to report to the police are also passed under the Criminal Tribes Act against members of such tribes, It is, therefore, clear that such orders are ordinarily passed only against persons who have been proved to be of the very worst character and who in fact are the dregs of society. It is not surprising if an order of that character passed against a man of education and good position in the town was felt by him, rightly or wrongly, to be humiliating. And if he gives an explanation of his conduct which is comparatively innocent, I do not think it is right for the Court to assume that the worst explanation of his conduct that is possible must be the true one. Nor is it at all easy to understand what activities dangerous to the public safety he could indulge in by neglecting to obey the order to report himself to the police three times a day which he would be unable to indulge in if he complied with that order. I do not say that his explanation justifies his conduct, but I do say that it is an important factor in considering and mitigating thesentence.

8. Then also we have the fact before us that the order in the present case consisted of seven parta. Under the first part of that order the accused was not to take part in public meetingsor processions, etc, Under the second part he was ordered not to encourage or take part in picketing and similar movements. Under the third part he was ordered not to promote or take part in any movement such as the civil disobedience movement. Theseorders indicate the nature of the harmful activities of which the accused was likely to be guilty according to the information of the executive authorities, and seem to have & more direct bearing on the question of preserving the public safety or peace than the order which he has actually disobeyed, namely, that of reporting himself to the officer in charge of the Pandharpur police-station. It is of course conceivable that this part of the order was really important for the preservation of the public peace and was not simply ancillary to the others. But if that was so, I think it was for the prosecution to prove the facts which made its breach a serious matter.

9. Punishment for disobedience of orders of public servants lawfully promulgated is not a new thing in the Indian criminal system, nor is there anything mysterious in considerations affecting the public peace which the Courts might not be able to understand. Section 188 of the Indian Penal Code provides for punishing such offences, and on looking into the monthly returns of criminal cases from the districts during the past few months I have found several cases under that section in which the punishment varied from three weeks simple imprisonment to six months rigorous imprisonment for disobedience to orders not to take part in meetings or prabhat feris, or processions etc., orders of exactly the same character as were given to the accused is the present case. It will be seen from that section that the punishment is there made to vary with the anticipated consequences of the disobedience. If the disobedience causes or tends to cause obstruction, annoyance or injury etc., the punishment provided is simple imprisonment for a term which may extend to one month or with fine, and if the disobedience causes or tends to cause danger to human life, health or safety, etc., it is made punishable with imprisonment for a term which may extend to six months, of with fine, or with both. It is true that under the Ordinance the maximum sentence is much higher, I am only referring to Section 188 of the Indian PenalCode to show that the legislature has recognised that the anticipated results of the disobedience Would also be a circumstance in mitigation, or it may be, in aggravation of the offence.

10. When an accused is convicted of theft before a Court, he is convicted of doing something which the law prohibits him from doing. If he has stolen something from a house, he is liable under Section 380 of the Indian Penal Code to a maximum punishment of imprisonment for a term which may extend to seven years. But if a man is convicted of stealing an umbrella from the verandah of a house, I do not think any Court would pass the maximum sentence, and if it did, I conceive that it would be a very good ground for setting the matter right in revision if the appellate Court had failed to do so.

11. On the materials before the Court in the present case the offence seems to have been a minor one, which, as far as the Court could judge, was not likely to lead to any serious harm, and might suitably have been punished for a first offence by a very much smaller punishment; and it seems to me that both the lower Courts have failed to exercise a wise discretion in award* ing and maintaining such a heavy sentence, I think the Courts have always recognised that the sentences they pass shall be imposed with moderation, and shall be no higher than are justified by the necessity of the case. It is perhaps not sufficiently recognised that public confidence in the impartiality and moderation of the Courts is of great value in itself in preserving the public peace, and indeed on occasion it may be of more use than battalions of troops or police. It is necessary in the interests of public peace itself that that confidence should be maintained, and it is, therefore, not merely from the point of view of the accused in the present case, but also from the wider point of view of preserving the confidence of the public in the fairness and moderationof the Courts that it seems to me that the present case and other cases of which itis a sample are eminently suitable for revision, Unfortunately, however, as I am in a minority, the question of the exact amount of punishment does not arise.


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