T.P. Naik, J.
1. This order shall govern the disposal or Criminal Revision No. 520 of 1962 also, as the point involved in both the revisions is the same.
2. The accused-non-applicants Sarman and Nanne were convicted by the Additional District Magistrate, Chhatarpur, respectively under Sections 34(a) and (34)(f) of the Madhya Pradesh Excise Act, and sentenced to simple Imprisonment till the rising of the Court, together with a fine of Rs. 10/- each. On revision, the Sessions Judge, Chhatarpur, has reported the case to this Court under Section 438 of the Code of Criminal Procedure recommending that In view of the Madhya Pradesh Excise (Amendment) Act No. 4 of 1961, the minimum sentence, which should have been passed against the accused-non-applicants, was one month's imprisonment and a line of Rs. 100/- each, because there were no special and adequate reasons to the contrary mentioned in the Judgment of the Court.
3. On 13.8.1962, at village Katarwara, Tahsil and district Chhatarpur, the accused-non-applicants were found in possession of illicitly distilled liquor and an apparatus for manufacturing illicitly distilled liquor respectively which were duly seized. On being prosecuted, each of them flied an application in writing in the Court of the trying Magistrate admitting his guilt and praying to be excused. They further stated that they did not want any investigation to be made into the allegations made against them. Accepting the aforesaid statement of the non-applicants as a plea of guilty, the trial court convicted them under Sections 34(a) and 34(f) of the M.P. Excise Act respectively and sentenced each of them to imprisonment till the rising of the court, together with a fine of Rs. 10/-.
4. As regards the sentence the second proviso to Section 34 of the M.P. Excise Act, as amended, says that:
In the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one month and such fine shall not be less than one hundred rupees.
Reading the Judgments in the cases before me. I find that the only reasons which find mention in the judgments justifying the passing of a sentence less than the minimum prescribed are:
(a) that the accused had admitted the facts alleged against them as well as their guilt; and
(b) that they were first offenders.
The question, therefore, Is whether these reasons can be said to be 'special and adequate reasons' to the contrary within the meaning of the proviso aforesaid bearing in mind that the proviso requires that the reasons must be both 'special and adequate'.
5. So far as the first reason is concerned, It could neither be a special nor an adequate reason because, as pointed out by the Supreme Court in Kapur Chand v. state of Bombay : 1958CriLJ1558 'the sentence should depend upon the gravity of the offence committed and not upon the fact that the accused pleaded guilty or made an attempt to defend the case'.
6. I am, therefore, left with the only reason, e.g., that each of the accused was a first offender, and as to this the learned Additional Government Advocate contends that this could neither be a, special nor an adequate reason because the policy, of the Act in prescribing the minimum sentence appears to be that Irrespective of the fact that the accused is a first offender, he must be given the minimum sentence, unless there is something extraneous to the case which warrants the infliction of a lesser penalty. Further support to the argument is sought to be derived from the provisions of Section 45 which prescribes a higher punishment for repetition of the offences after the first.
7. With our growth of Knowledge, especially in the field of experimental psychology, our ideas regarding punishment have gone a considerable change. Emphasis is now gradually shifting from deterrent or retributive aspect of punishment to its reformative aspect. The view now gaining ground is that punishment is to be determined not only by the gravity of the crime but by the nature at the criminal. The purposive theory is that the main aim of punishment is the regeneration of the individual as an effective and useful member of the society. To this end, the respective claims of the individual and the society have to be suitably balanced. This tendency of the individualisation of punishment with emphasis on its reformative aspect is now well reflected in the new statutory provisions, like the Abolition of Whipping Act (Act 24 of 1053), where the statement of objects and Reasons states that 'Whipping is a barbarous form of punishment which has no reformative value'; the Probation of offenders Act; and the Childrens' Acts in some of the States and Union Territories.
8. According to Sir Winston Churchill:
The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused-and even of the convicted-criminal against the state; a constant heart searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.
(Quoted from Rolph's 'Commonsense about Crime and Punishment'.)
9. In this view, the measure of punishment cannot be a mechanical retribution provided by the statute divorced from its social purpose, it must be adopted to the nature of the individual and be commensurate with the enormity of his crime, it must take note of the age, sex, rank, fortune, culture, education and many other circumstances, such as whether the accused are first offenders or whether they are mentally abnormals or subnormals etc., because the same nominal punishments are not always the same real punishments when applied indiscriminately. The same pecuniary punishment may be trifle to the rich but very oppressive to the poor. The same prison sentence, which may bring back from prison a young man in good health, healthy and alive, may mean the death of an aged and infirm. The same punishment, which may mean the ruin of a man of rank and position, may not produce even the slightest strain on an offender of an inferior class.
10. The law, therefore, while prescribing a maximum and a minimum as regards sentence to be inflicted for different categories of offences, advisedly leaves a wide discretion to the Judge to suit its measure according to the exigencies of the case, in the exercise of this discretion, if the trial judge, while taking note of the factors aforesaid, chose to contrast first offenders as against recidivists, it cannot be said that he had acted in violation of any well recognised judicial principles. Being a first offender is in my opinion, both a special and an adequate reason warranting the Infliction of a penalty less than the minimum prescribed.
11. The contention that there must be something extraneous to the offence or offender to warrant the reason being 'special and adequate' has no substance, Nor can the fact that for subsequent offences higher penalties have been prescribed be any reason for saying that for first offenders the minimum sentence prescribed the aforesaid proviso must necessarily be inflicted.
12. The references are not, therefore, accepted.