1977 Supreme(SC) 269

SUPREME COURT OF INDIA
V.R. KRISHNA IYER AND P.K. GOSWAMI, JJ.
Hiralal Mallick, Appellant
Versus
State of Bihar, Respondent.
Criminal Appeal No. 256 of 1977,
D/- 16-8-1977.
Advocates Appeared
Mr. D. Goburdhan, Advocate, for Appellant; M/s. U. P. Singh and S. N. Jha, Advocates, for Respondents.

Headnote:

Children Act, 1960 – Indian Penal Code - Section 302/34 - Criminal Procedure Code - Section 562 – Constitution of India, 1950 - Article 15 (3) and 39 (f) – Offence of murder - Imprisonment for life – Appeal against conviction - Whether he was under twelve as conditioned by Section 83, I.P.C. is adduced no attention to feeble understanding or youthful frolic is addressed - Sole appellant before us was a twelve years old lad when he toddled into crime conjointly with his two elder brothers - Three together were charged with the homicide of one which ended in a conviction of all under S. 302 read with Section 34, I. P. C - Trial Judge impartially imposed on each one a punishment of imprisonment for life - On appeal by all three High Court taking note of some peculiarities directed conversion of convictions from S. 302 into one under S. 326 I. P. C. and, consequently pared down punishment awarded to the co-accused into rigorous imprisonment for 8 years - Third accused appellant before us was shown consideration for his tender age of twelve years and Court in a mood of compassion softened sentence of boy into rigorous imprisonment - A close-up of participatory role of the youthful offender as distinguished from that of his elder brothers discloses a junior partnership for him - For argued while accused 1 and 2 caused the fatal stabs appellant was found to have inflicted superficial cuts on victim with a sharp weapon probably angered by episode of an earlier attack on their father induced by stress of reprisal urge and spurred by his brothers rush after the foe but all same definitely helping them in their aggression - That he was too infantine to understand the deadly import of sword blows he delivered is obvious that he inflicted lesser injuries of a superficial nature is proved that he like other two chased and chopped and took to his heels is evident - Immature age of offender fraternal company which circumstanced in his involvement the degree of intent gauged by depth of the wounds he caused and other facts surrounding occurrence should persuade us to hold that this juvenile was guilty - Not of death dealing brutality - But of naughty criminality in a violent spree – Held, Court make these observations in the expectation that facilities being available and prisoners consent being forthcoming he will be given under proper initiation and medical authorization courses which will refine his behavior develop his full potential and thereby justify the justice of his forced tenancy for four years - An afterword on power - Within limits of Prison Act and rules, there is room for reform of the prisoners progress - And court whose authority to sentence deprives sentences of his constitutional freedoms to a degree has the power – indeed duty - to invigorate the intra-mural management so that citizen inside has spacious opportunity to unfold his potential without overmuch inhibition or sadistic overseeing - No traditional judicial hands off doctrine nor prison departments Monroe doctrine can dissuade or disentitle this Court from issuing directives consistently with law for purpose of compelling institutional confinement to conform to the spirit and standards of fundamental rights which belong to man walled off - Court cannot in all conscience, order him to be shut up and forget about him - Brooding presence of judicial vigilance is institutional price of prison justice - Court have sojourned in sentencing chapter of this judgment for so long our anxiety being to work out purposeful incarceration shot with just and effective prescription - Red-hot rhetoric of flaming recommendations can have no more than romantic value since statutory authority is the only sanction behind a courts directive - So Court requested counsel to search for the sections and rules under Prisons Act bearing on constructive correction oriented orders Court has power to pass Counsel for State drew court attention to vintage measures lost in the statute book like Reformatory Act as well as Bookstall Schools Act apart from Probation of Offenders Act and the rules under these laws - This study has served only to convince us that while statutory guidelines to fix quantum of punishment are marked by unanalyzed fluidity courts correctional role in meaningful sentencing is marginal justifying Judge cynical expression - Criminal Sentences Law without Order - Prisons continue gerent logically in their grimy grimness dress diet bed drill organization and discipline - Why even philosophy and fears have hardly responded to rehabilitative penology or human decency – Indeed it is still an attitude of `lock them up and throw away key save for some casual open jail experiments and radical phrases in academic literature – Court omit Chambal oasis where changes are being tried out And this is a startling anti-climax when court remember that our Freedom Struggle had found nearly all post-Independence leaders in wrathful incarceration and most Indian Ministers now and before had been no strangers to prison torments - Time has come for reform of sentencing process with flexibility humanity restoration and periodic review informing system and involving court in the healing directions and corrections affecting sentence whom judicial power has case into cage - For nonce however Court as Judges have to work within the law as it now stands And court cannot impose what is not sanctioned or is not accepted by State - Court have couched what would have been binding mandates in terms of hopeful half-imperatives - Appeal is dismissed