Ananda Parhi and Others vs Emperor

Courtney-Terrell, C.J.—This is an application for the revision of an order of the learned Additional Sessions Judge of Cuttack refusing to refer the case of the petitioners to the High Court. I may say at once that the circumstances to which I shall refer entirely justified the decision of the Additional Sessions Judge and there was no reason whatever why he should refer the case to the High Court. Nevertheless I proceed to deal in revision with the order of the lower Court from which the case was taken to the learned Additional Sessions Judge.

The circumstances are quite simple. There is a village named Karusuni and there is a village deity. The four petitioners are Brahmins. A certain Sudra named Basu Bharathi desired to offer puja to the deity on the occasion of the brata ceremony of his brother. He knew that the Brahmins were likely to resist his approach to the deity so he went to the thana to get protection. A constable was sent down to see that no breach of the peace occurred. A breach of the peace however certainly did occur and that led to two cases. One which came on before one Magistrate was concerned with charges against the petitioners of forming members of a riotous assembly and assaulting the person named Basu Bharathi. That case, which came on first, ended in favour of the petitioners and one of them indeed appears to have succeeded in proving an alibi. The constable however was subjected to assault when he attempted to protect Basu Bharathi. He was pushed about, his pugree was knocked off and he incontinently fled to the thana and lodged an information. Thereupon the second case arose in which the four petitioners were charged with being members of an unlawful assembly with assaulting the constable and moreover I think somewhat technically with the theft of the constable''s pugree although what valuethis article could have been to the petitioners I do not know. The result was that they were convicted on these charges.

Then the matter came up before the District Magistrate and he set aside the conviction for theft quite properly, but he affirmed the conviction of all the petitioners on the charges of assault and rioting, and he upheld the sentence of three months'' rigorous imprisonment for assault on the constable and for rioting.

There is no doubt whatever that the convictions are perfectly right. Nor is it material that the petitioners were acquitted of the attack on Basu Bharathi. The assault on the constable is an entirely different matter and without regard to the alleged assault on Basu Bharathi the petitioners were rightly convicted of the assault on the constable. The only material question with which I have to deal is whether in the circumstances a sentence of rigorous imprisonment is right. In my view a breach of the peace, even if involving an assault on a public officer of a mild character, unless there be some elements of criminality in it should not ordinarily be punished by sentences of imprisonment. So far as possible the jails should be kept for the reception of persons who perform criminal acts of not merely a technical but of a criminal character. I do not say that the act which these petitioners have committed is of a technical character. It is a definite offence for which they must be definitely punished, but I do not think imprisonment is the proper punishment. For the sentence of imprisonment will be substituted a sentence which possibly they will even more strongly object to. Each of the petitioners in place of the sentence of imprisonment will pay a fine of Rs. 100, in default they will undergo rigorous imprisonment for three months each.