“A law which is not consistent with notions of fairness while it imposes an irreversible penalty like ‘death penalty’ is repugnant to the concept of right and reason.”
|Case name:||State of Punjab vs. Dalbir Singh|
|Case number:||CRIMINAL APPEAL NO.117 OF 2006|
|Court:||SUPREME COURT OF INDIA Crl. Appellate Jurisdiction|
|Bench:||Asok Kumar Ganguly and Jagdish Singh Khehar|
|Decided on:||1 February 2012|
|Relevant Act/Sections:||Section 27 Arms Act; Section 302,303,307 of IPC|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- In this case, Dalbir Singh, a constable in 36th Battalion Central Reserve Police Force, was posted at Fatehabad, District Amritsar, Punjab. On April 11th, 1993, Harish Chander, the Battalion Havaldar Major (‘B.H.M.’) reported to Hari Singh, the Deputy Commandant Quarter Master (‘Deputy Commandant’), that constable Dalbir Singh had refused to carry out the fatigue duty assigned to him.
- After being warned verbally because of his noncompliance of the orders for fatigue duty, constable Dalbir Singh requested the warning to be issued in writing.
- Immediately after these orders, firings were heard from a self-loading rifle (SLR). It was allegedly noted by the Deputy Commandant Hari Singh, that it was the accused who was firing the shots from a tent pitched outside the police station.
- This entire incident was allegedly witnessed by Constable Dalip Kumar Mishra and Sub Inspector Kewal Singh. Eventually, when the firing had stopped and the accused was trying to reload his gun, he was overpowered and disarmed by Constable Mishra.
- The Deputy Commandant directed the Sub Inspector Kewal Singh to hand over the accused to the police, while he himself and B.H.M. Harish Chander were rushed to Sri Guru Nanak Hospital. Unfortunately, B.H.M. Harish Chander died en route and his body was identified in the hospital.
- The Deputy Commandant recorded his statement and an F.I.R. was registered at the hospital by Sub Inspector Jaswant Singh.
- During investigation, the Investigating Officer, in the presence of SI Kewal Singh and Constable Mishra, found 20 empty bullet-cartridges at the Battalion Headquarters at Khawaspur. The empty cartridges were sent to the Forensic Science Laboratory on 15.4.1993 and the SLR was forwarded on 23.4.1993.
- The Trial Court consequently convicted the accused under Section 302 and 307 of IPC and Section 27 of the Arms Act. In the impugned judgment the High Court found out some irreconcilable inconsistency in the prosecution case. According to the investigating officer, neither the accused nor the SLR allegedly used by the accused were handed over to him.
- The High Court further found that even though the prosecution allegation is that 20 cartridges were fired, only 7 empties were recovered and none of the bullets were recovered. In view of the aforesaid finding of the High Court the accused was given the benefit of doubt.
- ISSUE BEFORE THE COURT:
- Whether Section 27(3) of the Arms Act is unconstitutional being violative of the Article 13, 14 and 21 of the constitution of India and must be declared void or not.
- Whether the decision held by the High court is valid or not.
- RATIO OF THE COURT
- Manufacture and sale of arms and ammunition is dealt with in Section 5 but Section 7 deals with prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms and ammunition. Therefore, there is a reasonable classification between Section 5 and Section 7 of the Arms Act. Consequently, there is valid classification between Sections 27(1) and 27(2) on the severity of the punishment.
- Section 27(3) is very wide in the sense anything done in contravention of Section 7 of the Act and with the use of a prohibited arms and ammunition resulting in death will attract mandatory death penalty. Even if any act done in contravention of Section 7, namely, acquisition or possession, or manufacture or sale, of prohibited arms results in death of any person, the person in contravention of Section 7 shall be punished with death.
- According to the court, this is thus a very drastic provision for many reasons. Apart from the fact that this imposes a mandatory death penalty, the Section is so widely worded to the extent that if as a result of any accidental or unintentional use or any accident arising out of any act in contravention of Section 7, death results, the only punishment, which has to be mandatorily imposed on the person in contravention is, death.
- In the case of Subhash Ramkumar Bind Alias Vakil and another vs. State of Maharashtra, the appellant Bind was charged under Section 302/34 and also under Section 27(3) of the Act and death sentence was awarded to Bind by the Sessions Court and the same was affirmed by the High Court. This Court while reducing the death sentence awarded by the High Court to one of life did not pronounce on the constitutional validity of Section 27(3).
- The question of constitutional validity of mandatory death sentence was examined by this court in Mithu vs. State of Punjab. In that case the constitutional validity of Section 303 of IPC came up for consideration. Provision of Section 303 of IPC is: “303. Punishment for murder by life convict – Whoever, being under sentence of imprisonment for life, commits murder shall be punished with death.” Mandatory death penalty provided under Section 303 of the Indian Penal Code has been held ultra vires by the Constitution Bench of this Court.
- Chief Justice Y.V. Chandrachud giving the majority opinion held that the sentence of death, prescribed by Section 303 of IPC for the offence of murder committed by a person who is under a sentence of life imprisonment is a savage sentence and this Court held that the same is arbitrary and oppressive being violative of Articles 21 and 14 of the Constitution.
- Once the concept of ‘due process of law’ and the guarantee against harsh and cruel punishment are woven in our Constitutional guarantee, it is the duty of this Court to uphold the same whenever any statute even prima-facie seeks to invade the same.
- Mr. Banerjee, learned ASG has rendered considerable assistance to this Court by placing before the Court judgments from different jurisdiction on the question of mandatory capital punishment and also decisions where Court examined cases of cruel and unusually harsh punishment. In this connection the court has referred to the judgment of the U.S. Supreme Court in the case of James Tyrone Woodson and Luby Waxton vs. State of North Carolina, 428 US 280.
- In that case the petitioners were convicted of first-degree murder. The petitioners were found guilty of the charges and sentenced to death. But then certiorari was granted by the U.S. Supreme Court to examine the question whether imposition of death penalty in that case constituted a violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. Stewart, J., speaking for the Court held that the said mandatory death sentence was unconstitutional and violated the Eighth Amendment.
- The second issue was on the constitutionality of hanging. Section 4(1) and Section 7 of the Constitution of Belize are as follows: – “4(1). A person shall not be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted.” “7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.” The Privy Council thus overruled the decision of the Court of Appeal of Belize.
- The court was of the opinion that It is clear from the discussion that mandatory death penalty has been found to be constitutionally invalid in various jurisdictions where there is an independent judiciary and the rights of the citizens are protected in a Constitution.
- Apart from that it appears that in Section 27(3) of the Act the provision of mandatory death penalty is more unreasonable as it provides whoever uses any prohibited arms or prohibited ammunition or acts in contravention of Section 7 and if such use or act results in the death of any other person then that person guilty of such use or acting in contravention of Section 7 shall be punishable with death.
- The word ‘use’ has not been defined in the Act. In view of such very wide meaning of the word ‘use’ even an unintentional or an accidental use resulting in death of any other person shall subject the person so using to a death penalty. Both the words ‘use’ and ‘result’ are very wide. Such a law is neither just, reasonable nor is it fair and falls out of the ‘due process’ test.
- All these concepts of ‘due process’ and the concept of a just, fair and reasonable law has been read by the Court into the guarantee under Articles 14 and 21 of the Constitution. Therefore, the provision of Section 27(3) of the Act is violative of Article 14 and 21 of the Constitution.
- Section 27(3) of the Act also deprives the judiciary from discharging its Constitutional duties of judicial review whereby it has the power of using discretion in the sentencing procedure.
- The ratio in both Bachan Singh case and Mithu case has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio represents the concept of Jus cogens meaning thereby the peremptory non derogable norm in \ international law for protection of life and liberty. That is why it has been provided by the 44th Amendment Act of 1978 of the Constitution, that Article 21 cannot be suspended even during proclamation of emergency under Article 359 of the Constitution.
- DECISION HELD BY COURT:
- That Section 27(3) of the Arms Act is against the fundamental tenets of our Constitutional law as developed by this Court.
- Section 27(3) of Arms Act, 1959 is ultra vires the Constitution and is declared void.
- The appeal is thus dismissed on merits and the High Court judgment acquitting the respondent is affirmed.