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SUPREME COURT OF INDIA
ASOK KUMAR GANGULY & JAGDISH SINGH KHEHAR
State of Punjab
Versus
Dalbir Singh
CRIMINAL APPEAL NO.117 OF 2006
Decided on: 01-02-2012
(b) Arms Act, 1959 – Section 27 – Sub-section (2) provides for higher punishment than sub-section (1) – Sub-section depends upon section 5 and sub-section (2) depends upon section 7 – There being reasonable classification between section 5 and 7 – Therefore classification between sub-sections (1) and (2) of section 27 in matter of quantum of punishment is valid. (Para 20)
(c) Arms Act, 1959 – Section 27(3) – Similar to sub-section (2) but providing for death penalty in case of death of the victim – Very wide and drastic provision – Not providing any guideline or exception leading to mandatory punishment of death penalty – Government taking steps to amend the Act in pursuance of (1983) 2 SCC 277. (Para 21, 25, 30)
(1983) 2 SCC 277 – Referred
(d) Constitution of India – Article 13 – Power of judicial review is inherent in our Constitution. (Para 28)
(e) Arms Act, 1959 – Section 27(3) – Constitution of India – Articles 14 and 21 – `Due process of law’ is part of our Constitutional jurisprudence – Provision of mandatory death sentence without guidelines – Not proper – Section 27(3) of the Arms Act, 1959 is violative of Articles 14 and 21 of the Constitution (Para 46, 94)
(1978) 1 SCC 248; (1980) 2 SCC 684; Mithu;
428 US 280 : 49 L Ed 2d 944; 428 US 325 : 49 L Ed 2d 974; 431 US 633 : 52 L Ed 2d 637; 483 US 66 : 97 L Ed 2d 56; (2002) 2 AC 235 : (2002) UKPC 11; (2002) 2 AC 259 : (2002) UKPC 12; (2002) 2 AC 284; (2006) 1 WLR 1623; Criminal Appeal No. 10/2006 – Grenada; [2007] M.W.H.C.1; (1981) A.C. 648; 24 L Ed. 77 : 94 US 113, 142 (1876); 120 L ED 2d 674; Constitution Appeal No.03/2006 (Uganda); Criminal Appeal No.17/2008 (Kenya) – Referred
(2003) 1 SCC 506; (2002) 1 SCC 266; Murder Reference No. 5 of 2000 – Distinguished
(f) Arms Act, 1959 – Section 27(3) – Mandatory death sentence – Deprives Superior Courts of their power of judicial review of sentencing procedure – Not valid. (Para 97 to 100)
Facts of the 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.’) in `Company D’ of the Battalion, reported to Hari Singh, the Deputy Commandant Quarter Master (`Deputy Commandant’), that the accused had refused to carry out the fatigue duty assigned to him.
On thje direction of the Deputy Commandant the accused was produced before the Deputy Commandant. 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.
Immediately after these talks, the accused started firing from a rifle from a tent pitched outside. The Deputy Commandant was allegedly hit in his back. The B.H.M. sustained multiple bullet injuries in his shoulders. The BHM succumbed to his injuries and died in hospital.
The Trial Court 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.
The High Court reversed the order of conviction.
Finding of the Court:
Section 27(3) of the Arms Act, 1959 is ultra vires the Constitution and is declared void.
Result: Appeal dismissed.
Judgment :
GANGULY, J.
1. This appeal at the instance of the State has been preferred from the judgment of the Division Bench of the High Court of Punjab and Haryana at Chandigarh, dated July 27, 2005 in Criminal Appeal No. 250/1996 whereby High Court gave the appellant the benefit of doubt and acquitted him of the charges framed against him.
2. Briefly, the 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 Commandant's 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 o
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