Case: State of Punjab Vs. Dalbir Singh

facts of the case are that the respondent Dalbir Singh, a constable in 36th Battalion Central Reserve Police Force, at the relevant time was posted at Fatehabad, District Amritsar, Punjab. On April 11th, 1993, Harish Chander, the Battalion Havaldar Major (hereinafter `B.H.M.) in `Company D of the Battalion, reported to Hari Singh, the Deputy Commandant Quarter Master (hereinafter `Deputy Commandant), that the accused had refused to carry out the fatigue duty assigned to him. On such report being made, the Deputy Commandant directed the B.H.M. and Sub Inspector Kewal Singh to produce the accused before him. As per these directions, the accused was produced before the Deputy Commandant at 11:15 a.m. Upon being warned verbally about his non compliance of the orders for fatigue duty, the accused requested the warning to be issued in writing. Upon such a response, the Deputy Commandant ordered the B.H.M. and the Sub Inspector to have the accused present before him the next morning.3. However, immediately after these talks, the Deputy Commandants office saw firing from a Self Loading Rifle (SLR), even as the Deputy Commandant himself and the B.H.M. were inside it. As the Deputy Commandant positioned himself underneath a table, he allegedly noted that it was the accused who was firing from a rifle from a tent pitched outside. He was allegedly hit in his back. The B.H.M. sustained multiple bullet injuries in his shoulders.4. 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 (Ex. PH) and an F.I.R. (Ex. PH/2) was registered at the hospital by Sub Inspector Jaswant Singh.5. During investigation, the Investigating Officer, in the presence of SI Kewal Singh and Constable Mishra, found 20 empty bullet-cartridges (Ex.P4-P23) at the Battalion Headquarters at Khawaspur. These were taken into possession after putting them in a sealed parcel through recovery memo (Ex.PK). The empty cartridges were sent to the Forensic Science Laboratory on 15.4.1993 and the SLR was forwarded on 23.4.1993.6. After investigation a challan was put in the Court of the Ilaqua Magistrate who found that the case was exclusively triable by the Court of Session, committed the same to Court of Session. The accused was charged under Section 302 and 307 of IPC and under Section 27 of the Arms Act. The accused pleaded not guilty and the Prosecution was called upon to examine its witnesses including DCQM Hari Singh (PW.6), SI Kewal Singh (PW.7), Constable Mishra (PW.9) and Sub Inspector Jaswant Singh. The accused, upon examination, denied all circumstances and asserted that he was innocent and had been falsely implicated. The Trial Court consequently convicted the accused under Section 302 of IPC, sentencing him to rigorous imprisonment for life and fine of Rs.2,000/-, under Section 307 of IPC, sentencing him to rigorous imprisonment for 5 years and fine of Rs.2,000/-, and under Section 27 of Arms Act, sentencing him to rigorous imprisonment for 3 years and fine of Rs.1,000/-. The substantive sentences were ordered to run concurrently.7. In the impugned judgment the High Court while reversing the order of conviction found that there is some irreconcilable inconsistency in the prosecution case. The High Court found that PW.9 the alleged eye witness deposed that the respondent was apprehended at the spot by him and he was disarmed by him and the SLR which was being used by the accused was taken in his possession and the accused was handed over to the Court. But according to the Investigating Officer (IO) PW.12, he went to the place of occurrence on the date of occurrence i.e. on 11.4.93, but neither the accused nor the SLR allegedly used by the accused were handed over to him. The further evidence of the IO is that on 14.4.93, the accused was handed over to him outside the CRPF headquarters. Then on his disclosure statement the SLR was recovered. In view of such irreconcilable discrepancy in the evidence of the prosecution, the High Court came to the finding that the prosecution was trying to suppress a vital part of the case and the incident did not take place in the manner presented by the prosecution. 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. The High Court found that the same is very surprising when the prosecution version is that 20 bullets were actually fired in a room towards the side where there are no windows. It is, therefore, impossible that none of the bullets had been recovered. In view of the aforesaid finding of the High Court the accused was given the benefit of doubt.

Reasoning:
86. However the aforesaid opinion of Lord Diplock, was subsequently noticed by the Privy Council in Bowe (supra) at page 1644, wherein the decision in Ong Ah Chuan (supra) was explained inter alia, on the ground that the Constitution of Singapore does not have a comparable provision like the Eighth Amendment of the American Constitution relating to cruel and unusual punishment.87. It is clear from the discussion hereinabove 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.88. It has already been noted hereinabove that in our Constitution the concept of `due process was incorporated in view of the judgment of this Court in Maneka Gandhi (supra). The principles of Eighth Amendment have also been incorporated in our laws. This has been acknowledged by the Constitution Bench of this Court in Sunil Batra (supra). In para 52 at page 518 of the report, Justice Krishna Iyer speaking for the Bench held asTrue, our Constitution has no `due process clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.Almost on identical principles mandatory death penalty provided under Section 303 of the Indian Penal Code has been held ultra vires by the Constitution Bench of this Court in Mithu (supra). Apart from that it appears that in Section 27(3) of the Act the provision of mandatory death penalty is more unreasonable inasmuch 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 shallbe punishable withdeath. The word `use has not been defined in the Act. Therefore, the word `use has to be viewed in its common meaning. 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.90. 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.91. In Dr. Bonham case - (1610) 8 Co Rep 114a : 77ER 646, Lord Coke explained this concept several centuries ago. The classical formulation by Lord Cokeappears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.The principle of `due process is an emanation from the Magna Carta doctrine. This was accepted in American jurisprudence [See MunnAgain this was acknowledged in Planned Parenthoodof Southeastern Pennsylvania vs. Casey, 120 L ED 2dwherein the American Supreme Court observed asguarantees of due process, though having their roots in Magna Cartas `per legem terrae and considered as procedural safeguards `against executive usurpation and tyranny, have in this country `become bulwarks also against arbitrary legislation.All these concepts of `due process and the concept of a just, fair and reasonable law has been read by this 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.95. Apart from that the said Section 27 (3) is a post Constitutional law and has to obey the injunction of Article 13 which is clear and explicit. Article 13(2) is asThe State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.In view of the aforesaid mandate of Article 13 of the Constitution which is an Article within Part-III of our Constitution, Section 27(3) having been enacted in clear contravention of Part-III rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void.97. 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.98. This power has been acknowledged in Section 302 of the Indian Penal Code and in Bachan Singh (supra) case it has been held that the sentencing power has to be exercised in accordance with the statutory sentencing structure under Section 235(2) and also under Section 354(3) of the Code of Criminal Procedure.99. Section 27(3) of the said Act while purporting to impose mandatory death penalty seeks to nullify those salutary provisions in the Code. This is contrary to the law laid down in Bachan Singh (supra).100. In fact the challenge to the constitutional validity of death penalty under Section 302 of Indian Penal Code has been negatived in Bachan Singh (supra) in view of the sentencing structure in Sections 235(2) and 354 (3) of the Criminal Procedure Code. By imposing mandatory death penalty, Section 27(3) of the Act runs contrary to those statutory safeguards which give judiciary the discretion in the matter imposing death penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which is one of the basic features of our Constitution.101. It has also been discussed hereinabove that the ratio in both Bachan Singh (supra) and Mithu (supra) has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in Mithu (supra) and Bachan Singh (supra) represents the concept of Jus cogens meaning thereby the peremptory non derogable norm in international law for protection of life and liberty.102. 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(vide Article 359(1)(a) of the Constitution.103. This Court therefore holds that Section 27(3) of the Arms Act is against the fundamental tenets of our Constitutional law as developed by this Court.