BHUPA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner Bhupa Singh was convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to undergo life imprisonment by the trial Court. He was further convicted under section 307 of the Indian Penal Code and sentenced to three years rigorous imprisonment. The sentences were ordered to run concurrently. In appeal before a Division Bench of this Court, it was found that the petitioner was less than fifteen years of age at the time of commission of crime. It was, therefore, considered appropriate to deal with him in the manner provided under section 34 of the East Punjab Children Act, 1949 (hereinafter called as the Act. It was held that the offence committed by him, was of serious nature and no punishment which could be imposed under the provisions of the Act, would be sufficient to meet the ends of justice. In such circumstances, the Division Bench of this Court reported his case for orders of the State Government under section 34 of the Act with the direction that he would be kept in safe custody in the Borstal Jail, Faridkot till the orders are passed by the State Government under sub -section 2 of Section 34 of the Act and the period of detention shall not exceed the period to which a child could have been sentenced for the offence committed. In pursuance of this order of the Division Bench, the State Government passed the orders dated 2 -8 -1982 under section 34(2) of the Act (Annexure P. 2) wherein it was directed that the petitioner be kept separate from the adult prisoners and hardened criminals in Borstal Jail, Faridkot and should be given proper facility for education, vocational training and ethical instructions till he attains the age of twenty one years. It was further directed that after the petitioner attained the age of twenty one years, he would be transferred to some other ordinary jail and the order in connection thereof will be issued by the Home Department for undergoing the remaining period of detention which shall not exceed the maximum period of imprisonment to which the petitioner could have been sentenced for the offence committed. In the present petition, the validity of this order (Annexure P. 2) has been challenged and it is sought to be quashed.

(2.) THE impugned order has been challenged mainly on the ground that the Petitioner had not been given an opportunity of being heard before passing of the order. Concededly, such an opportunity was not granted to him. It is however, contended on behalf of the State Government that section 34 of the Act does not provide for any opportunity of hearing and so the impugned order cannot be deemed to be invalid on this ground.

(3.) LEARNED counsel for the petitioner referred me to a previous judgment of this Court in Criminal Revision No. 1483 of 1982 decided on November 11, 1932 (Mithu Singh v. State of Punjab and another). In that case a similar situation arose. It was held that no doubt the language of section 31 of the Act does not provide for any opportunity of hearing, but taking into account the object and the scheme of the Act it can he fairly concluded that the principles of natural justice are implicit in the language of the section. Support was also drawn to this view by a precedent in Criminal Revision No. 261 of 1981, decided on April 20, 1981 (Jaswinder Singh v. State of Punjab), wherein it was held, "it is a cardinal principle of the rules of natural justice that nobody can be condemned without affording him an opportunity of being heard. In my view it would be in the interest of justice if the petitioner who is to be affected by the order of the Government passed under section 34(2) of the East Punjab Children Act, 1949 is given an opportunity of being heard before any order is passed by the Government even if it is not so provided under the aforesaid provisions of the Act." The aforesaid two prior judgments of this Court are fully applicable to the facts of the present case. Agreeing with the observations made therein the petition is allowed and the impugned order (Annexure P 2) is quashed. The State Government is directed to decide the case of the petitioner fresh under section 34 of the Act after giving him an opportunity of hearing within a period of two months from today. This petition is disposed of in these terms.