Gossain Missir and Another vs Emperor

John Bucknill, J.—This is an application in Criminal Revisional Jurisdiction No. 354 of 1921. The applicants are two men, named Gossain Missir and Nandun Missir, and they ask for the setting aside of, or the interference by this Court in, an order of the Deputy Magistrate of Motihari, dated the 13th June of this year, convicting and sentencing them u/s 506 of the Indian Penal Code to three months'' rigorous imprisonment each, from which an appeal to the District Magistrate of Champaran was dismissed on the 9th July 1921.

I have thought over this case very carefully. There is no doubt that the two applicants threatened the complainant; whether they would have ventured to turn their words and gestures into an actual assault it is impossible to say--had they done so, the consequence would have been very serious for them. Both the Deputy Magistrate of Motihari and the District Magistrate of Champaran considered that the sentence was a deterrent one, the former specifically passed it as such on the ground that--to use his own words,

I must consider the times and the prevailing atmosphere of the country all round, the latter thought the sentence appropriate in times which are somewhat exceptional.

The complainant, who was mounted on a horse, says that he did not feel "comfortable" when the two applicants threatened him and expected they would attack him; the two applicants were Indian residents of Sugaon villag : the complainant is the European manager of Sugaon faatory, the complainant had endeavoured to intervene between the applicants here and a man called Chaudbur Turaha, Who had a dispute about the ownership of the fruit of a bael tree; the applicants had resented this.

In none of these circumstances can I, I must confess, see anything relating to this particular occurrence which renders the offence of exceptional gravity.

It is said at the Bar that the planters are isolated in these country totalities; I appreciate fully that statement which I have no doubt is correct.

In the decisions of the Deputy Magistrate and District Magistrate the expressions occur, which I have quoted just above; I do not, however, see any evidence or indeed anything in the papers before me, which indicate that at or in the neighbourhood of the locality where this incident occurred there was any marked popular excitement creating or likely to create breaches of the public peace or any public tumult or disorder. I think it is of some importance that the theory of deterrent punishments should not be loosely put into practice and that the principles upon which alone deterrent penalties should, as a rule, be Inflicted I early comprehended. Normally, most penalties in one sense are supposed to be primarily punitive (that is, a punishment imposed upon the offender personally) and from a secondary aspect and in minor degree of a nature admonitory to others (that is, a warning to those who may at any time contemplate a like offence), a ''deterrent'' penalty is an elaboration of the latter. Penalties were at one time of a type which to modern mentality were ravage and wrong; but those were based largely on class distinctions, most of which have long since disappeared, and on the theory of the deterrent effect which crushing punish-merits were thought to have on crime. But that hypothesis has long since been exploded; for experience has shown that where the general average of punishment was of a cruel severity, the effect was bat to minimize in the public the social tense and recognition of crime as an evil and to produce a callous and brutalizing indifference.

Deterrent punishments are now regarded only as of utility--and it cannot be denied that they have, under certain circumstances, their value--in what are luckily as a rule exceptional circumstances, When waves of imitative crime, such as for example (and I speak from personal experience) garroting, gang robbery (or dacoity as it is called here) and forgery of counterfeit coin or note?, commence to sweep over a State, judicious and increasing severity may properly be utilized to check and deter such an inundation: again, in times of public tumult when there is danger of a wide breach of the public peace or security, or where a highly organized or what one may call semi-professional association of persons engineer series of offences, such as swindling or burglary, deterrent punishments may be with caution advantageously inflicted--such a category is naturally not exhaustive but illustrative only; and sound knowledge, experience and a proper sense of perspective are alone the guides which can safely be followed in concluding whether the use of such an aid to the maintenance of the order and tranquility of a locality is properly permissible and desirable.

It is now recognised that the hardest and most difficult task of those who are set as Judges over the crimes of misdemeanors of their fellowmen is that most important question, i.e., what is the proper penalty. Few, however, I fear, make a serious study of this almost unwritten branch of criminal jurisprudence: and it is unwritten because the facts which make up the environment of an offence are so infinitely diversified that comparatively seldom are two crimes exactly identical.

To adjust the punishment so as to make it appropriate should be the aim: and to balance it so that it v justly fits the gravity of the offence bat does not shock the public conscience (and thus warp and dull the public''s social sense and appreciation of crime as evil) is no easy task.

Now, in this Case, as I have stated at the outset of my remarks, I can see no apparent reason for any punishment of a deterrent character such as this is explicitly stated to be. It is, of course, ethically untoward that persons should not be of one mind and should have differences of opinion; but it is indeed deplorable when in countries such as this and others, where Indians and Europeans have to reside together and where they should live side by side in amity and community of interest, either should provoke the other, self-control and the treatment of one''s neighbours as you would that they should treat you are the keys of all higher life, call that by whatever phrase one may. I shall set aside these sentences as inappropriate, I shall fine each of these men Rs. 30 each, and as their offence is one which, not least for their own sakes, I am most anxious they should not repeat, I shall bind them over each in one surety of Rs. 100, to keep the peace for a period of one year. I hope and trust that my action in this matter may be of general value.