KESHUBHAI SOMNATH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioners who are 50 in number have been convicted by the learned City Magistrate 10 Court Ahmedabad for the offences under sec. 143 of the Indian Penal Code and sec. 135(3) of the Bombay Police Act. Petitioners Nos. 1 to 49 are sentenced to rigorous imprisonment for four days under sec. 143 of the Indian Penal Code. THE sentence of fine of Rs. 25/is imposed on each of them under subsec. (3) of sec. 135 of the Bombay Police Act. THE learned Magistrate has directed that in default of payment of fine each of them shall suffer rigorous imprisonment for three days more. With regard to petitioner No. 50 the sentence under sec. 143 of the Indian Penal Code is that of one days rigorous imprisonment and the sentence under sub-sec. (3) of sec. 135 of the Bombay Police Act is that of a fine of Rs. 25.00. In default it is directed that she shall suffer imprisonment for three days. THE petitioners have thereupon invoked the jurisdiction of this Court under sec. 439 of the Code of Criminal Procedure. ... ... .. ... ... 3 It has been argued by the learned counsel for the petitioners that the breach of the order issued under sub-sec(3) of sec. 37 of the Bombay Police Act prohibiting an assembly or procession during the time specified in the notification for the preservation of the public order was made in circumstances of serious provocation. It was complained that taking advantage of the fact that traffic by rail and road was disrupted on account of unprecedented floods the merchants were charging exhorbitant prices for edible oil. And it was only with a view to register their protest against such exploitation that the petitioners had taken out the procession. THE gravity of the provocation or the justness of the grievance will not however nullify a lawful order or render its violation lawful. If the rule of law is to prevail such a plea cannot be countenanced. So far as the question of conviction is concerned therefore the argument that the breach was committed under serious provocation is irrelevant. In regard to the matter of sentence however it has great relevance. In every civilized State the law of the land extends protection to its citizens from being deprived of their possessions except by recourse to due process of law. Why ? What is the ethics underlying this rule I By common consent of the governed the agency created by them to govern themselves does so mainly for two reasons. First that the right to possess property shall not depend solely on the physical strength of individuals. THE dominant idea is to prevent misuse of physical power (might is right) to the prejudice of those who are physically weak and unable to protect themselves or their possessions. And secondly that every one can bring out the best in himself and employ his best efforts to create wealth for the society in the preservation of which every one has a common stake so that law and order has a meaning not only for the strong and the powerful (physically or economically) but for all including those who are weak. It is some what unfortunate that while the law prevents physical power being employed as an engine of oppression it does little to provide a shield against economic power. If physical power is used to deprive others of their possessions law makes it an offence (robbery). If intellectual power is so employed the law at times makes it an offence (cheating). When however economic power (which is no less dangerous) is so employed the law remains a helpless spectator. If muscle power or a gun is employed to deprive the physically weak or helpless of their property it is an offence. Why is it then not an offence to employ economic power (which is possibly much more dangerous) for a similar purpose to deprive the economically weak or helpless persons ? On principle there is no reason to extend immumity to persons who point the economic gun instead of the metal gun to rob others. Nor is there any principle in extending protection only when physical weakness of the victim is sought to be exploited and not extending it when economic weakness or helplessness created by scarcity of goods is sought to be exploited by those who; are strong and powerful. It is unfortunate that the law has so far not made any provision (and it is high time that some provision is made) in regard to those who exploit the helplessness of people in the economic sphere. Returning to the facts of the present case the fact that the rail and road traffic was disrupted and that the people were helpless was no suitable occasion to celebrate it by raising the price of oil and making the persons who were in need of an essential commodity to pay more than what they would have been required to pay if the calamity had not befallen. If under these circumstances in order to register their protest people commit a breach of a lawful order prohibiting an assembly or procession of course it would constitute an offence but the law would not view it seriously in regard to the matter of sentence. Order modified.