# 8 33 STATE OF MAHARASHTRA v. NASIMKHAN AHMAD KHAN MALI KHAN, ETC

- **Citation:** [1971] 1 S.C.R. 833
- **Court:** Supreme Court of India
- **Decided:** 1970-08-17
- **Case number:** Criminal Appeals Nos. 18! and 182 of 1967
- **Bench:** K. S. Hegde, l. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-33-state-of-maharashtra-v-nasimkhan-ahmad-khan-mali-khan-etc-5291
- **Pages:** 6

## Headnote

Bombay Probation of Offenders Act, 1938, s. 5(1)1a)-Scope of --If
should have been applied in a case where strikers caused grievous bodily
hann to loyal ·workers.
T,he respondents \Vere 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.
L
1nion \vhich de.clarcli a strike in August,
1963.
As a result several
"orkers struck work but some disregarded the call for strike and continued to work.
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 t"'o years imprisonment on one respondent and one
ye"r imprisoment on the others.
In their appeal to the High Court the
r°'pondents 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 di<l not
belong to the regular class of criminals and in all the circumstances he
directed the rcspon<lents to enter into a bond under s. 5 ( 1) (a) of thi.:
Bombay Prohation of Offenders Act, 1938, for specified periods, instead
of sentencing them to imprisonment.
On appeal to this Court,
HELD : The le"rned 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 choracters.
The only thing that the learned judge could
G
he 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 he done
H
through tne instrumentaliti"5 of the State.
In the fi 0 al analysis. it is the
peoolc of this country through their representatives that must decide the
social goals.
Jf social wrongs are sought to be remedied in the streets,
then there can he neither peace nor progress.
Without progress
the
L 169S:ip.CHPl/7t-9
834
SUPREME COURT REPORTS
[1971] I S.C.R.
attainment of social justice is impossible.
Under our Constitution the
A
rule of law has been made our way of life. It is a fallacy to think that
rule of Jaw and the law of the jungle can co-exist. [83 7 D-G]
[As the period of the suspended sentences was over. the Court dismissed
the appeal with the above observations].

## Text

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8 33
STATE OF MAHARASHTRA
v.
NASIMKHAN AHMAD KHAN MALI KHAN, ETC.
August 17, 1970
[K. S. HEGDE AND l. D. DuA, JJ.]
Bombay Probation of Offenders Act, 1938, s. 5(1)1a)-Scope of --If
should have been applied in a case where strikers caused grievous bodily
hann to loyal ·workers.
T,he respondents \Vere 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.
L
1nion \vhich de.clarcli a strike in August,
1963.
As a result several
"orkers struck work but some disregarded the call for strike and continued to work.
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 t"'o years imprisonment on one respondent and one
ye"r imprisoment on the others.
In their appeal to the High Court the
r°'pondents 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 di<l not
belong to the regular class of criminals and in all the circumstances he
directed the rcspon<lents to enter into a bond under s. 5 ( 1) (a) of thi.:
Bombay Prohation of Offenders Act, 1938, for specified periods, instead
of sentencing them to imprisonment.
On appeal to this Court,
HELD : The le"rned 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 choracters.
The only thing that the learned judge could
G
he 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 he done
H
through tne instrumentaliti"5 of the State.
In the fi 0 al analysis. it is the
peoolc of this country through their representatives that must decide the
social goals.
Jf social wrongs are sought to be remedied in the streets,
then there can he neither peace nor progress.
Without progress
the
L 169S:ip.CHPl/7t-9
834
SUPREME COURT REPORTS
[1971] I S.C.R.
attainment of social justice is impossible.
Under our Constitution the
A
rule of law has been made our way of life. It is a fallacy to think that
rule of Jaw and the law of the jungle can co-exist. [83 7 D-G]
[As the period of the suspended sentences was over. the Court dismissed
the appeal with the above observations].
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
18! and 182 of 1967.
Appeals by special leave from the judgment and order dated
October 31, 1966 of the Bombay High Court in Criminal Appeal<
Nos. 356 and 357 of 1965.
·
H. R. Khanna and S. P. Nayar, for the appellant.
Hardev Singh, for the respondent (in C.A. No. 181/67).
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 considerable importance. In order to assess that question, it is necessary
to refer to tl:e incidents tl)at 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 Bowbay.
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 1' ~udobast duty in the bus.
Injuries sustained by the conductor and the driver were quite serious.
The conductor sustained bums on the face, 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 3
fracture of cartilage.
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MAHARASHTRA v. NASJMKHAN (Hegde, J.)
835
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The karned trial judge summarised the
prosecution
case
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libus :
'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 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 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
assaulted
the
driver .......... "
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 concurrently 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 excessive.
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 :
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
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 wbich 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. ) (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 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, 1938
reads·
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"Notwithstanding anything contained in any enactment for the time being in force, when--
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(a) ·any male person is convicted of an offence not
punishable with death or transportation for life, or
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MAHARASHTRA v. NASIMKHAN (Hegde, J.)
837
{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, 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 riesperate 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 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
SU 0 REME COURT REPORTS
(1971] l SC.R.
We are told that as a result of this incident they have been disA
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.
R.K.P.S.
Appeals dismissed.