1. These are thirteen cases referred by the District Magistrate (Judicial), Nandyal, for setting aside the orders of the Stationary Sub-Magistrate, Jammalmadugu, in C. C. Nos. 120 to 132 of 1952, releasing 13 persons convicted under Section 4A of Act 10 of 1937, the Prohibition Act, under Section 562(1), Cr. P. C. on their entering into bonds for Rs. 200 each to appear and receive sentence whenever called upon to do so and for inflicting substantial punishment on them. The learned Stationary Sub-Magistrate considered that, as these accused persons belonged to primitive backward tribes, like Dommara, Salai, Thogata etc., and as these were their first offences they should be released under Section 562(1), Cr. P. C. instead of awarding substantive sentences of imprisonment or fine. He also relied on the fact that two doctors differed regarding the question of these accused persons being really intoxicated by taking any illicit liquor.
2. The learned District Magistrate rightly attacks these orders on three grounds. Firstly, he says that any difference between doctors' opinions regarding the factum of the offence would only be a matter for acquitting the accused, if the Court entertained any reasonable doubt regarding their guilt, and would not be a reason for applying Section 562(1), Cr. P. C. I agree. Indeed, small or lenient sentences in cases of doubt are highly objectionable, because they might allow illegal or unsustainable sentences to stand by making the party fear that if he appeals he might get a more severe sentence. Every Court must award the sentence suited to the offence and the offender, and not make the sentence smaller because of any doubt regarding the commission of the offence itself. Of course, the case is different where there is a doubt whether a graver offence or a smaller offence has been committed.
3. The second reason given by the learned District Magistrate is that Section 562(1), Cr. P. C. should not be applied to cases like these. I agree that this section should not be applied to cases like these normally. To apply Section 562 (1), Cr. P. C. to all first offences of drunkenness is neither the intention of the law, nor will it be consistent with sense or common sense. Nor can all first offenders claim action under Section 562. Thus, a man committing murder for the first time cannot invoke the aid of Section 562(1), Cr. P. C., nor can, normally, offences under Prohibition Act be properly dealt with under Section 562(1), Cr. P. C. There will, of course, be exceptional cases, as, for instance, when a father or a mother makes a son or daughter, just past 14 or even 18, drunk. But in all such cases, the antecedents of the offenders and the circumstances of the offence must be considered individually, and not in a kind of omnibus fashion, as here.
4. The third reason given by the District Magistrate is that backward classes should not be treated on a more lenient footing than forward classes regarding such offences. I agree. The Prohibition Act is largely intended to help the backward classes to save themselves from the drink evil, and to let off members of the backward classes committing such offences on the ground of backwardness, giving them the same preference as under the Constitution for appointments etc, will not be proper.
5. But I cannot agree with the learned District Magistrate regarding two other reasons relied on by him. The first was that these accused persons could not be deemed to be first offenders, as they must have committed, or must be presumed to have committed, several offences like these which went undetected. It is no part of a Court's function to speculate regarding such undetected offences and cause an undeserved slur on the accused and the police or other detecting authority. Courts in our Indian Union are only to act on proved facts and ought not to say anything not warranted by evidence admissible under the Indian Evidence Act. To presume, on no evidence, that a man committing an offence must have committed several offences before which went undetected is not allowable under our law. So, I consider that all these accused are really first offenders.
6. The next reason relied on by the learned District Magistrate is that the offenders belong to that class of society in which drink was common in pre-prohibition days and, so, deserve a far more deterrent punishment than if they had belonged to non-drinking class in pre-prohibition days. It is 'prima facie' ridiculous to say that the spread of drink to classes not addicted to it before is to be treated more indulgently than the continuance of drink among the classes addicted to it before.
7. After perusing the records, and hearing the learned Public Prosecutor, who did not want notices to issue to the accused in the peculiar circumstances, I have no doubt whatever that the conviction of everyone of the accused was fully supported by the evidence on record and need not be interfered with. But, I am of opinion that, in the peculiar circumstances, where only small fines would have been imposed by me had I tried these cases in the first instance, it will be against all justice, equity and good conscience to issue notices to these accused-petitioners, after a delay of several months, to appear in this Court, causing to them enormous waste of time, energy and money in coming from distant Kurnool to this place to answer notices for enhancement of punishment.
8. The learned Public Prosecutor agrees.
9. In the end, therefore, I see no reason to interfere with the orders passed under Section 562 (1), Cr. P. C. even though they were not strictly warranted. The references are answered accordingly.