Delhi High Court
Spe Inder Pal Singh And Anr. vs Union Of India (Uoi) on 1 May, 1994
Equivalent citations: 54(1994)DLT718
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal
JUDGMENT Mr. Y.K. Sabharwal, J.
1. On 16th June, 1987, four Army Officers, Col.S.S.Sahota, Major Jaspal Singh, Captain B.K.Chottri and Captain A Shrivastava were murdered. Col.Sahota was Commanding Officer and Major Jaspal Singh was second in command of Unit 8 Jat. Captain Chottri was also an Officer of same unit while Capt.Shrivastava belonged to 302 Field Ambulance. These officers were murdered by Lance Niak Inder Pal Singh and Sepoy Mahavir, petitioners herein, also belonging to 8 Jat.
2. The General Court Martial was held between 16th August and 10th December, 1988. The petitioners were sentenced to death by Order dated 10th December, 1988. The petitioners preferred a petition under Section 164 (1) of the Army Act, 1954 (For short 'The Act') on 31st December, 1988 against the finding and sentence of the General Court Martial. By letter dated 13th February, 1991, petitioners were informed that the said petition was considered and rejected by the Central Government. By letter dated 7th October, 1992, petitioners were informed about rejection of their post confirmation petition dated 7th March, 1991 filed under Section 164(2) of the Act and hence this petition.
3. The petitioners were charged with the following offences:--
"First Charges Army Act Section 69 (against both the accused.
Committed a Civil Offence, that is to say, Criminal conspiracy, contrary to Section 120-(6) of the Indian Penal Code.
In that they together, at field, between 28 May, 1987 and 16th June, 1987, entered into a conspiracy to do an illegal act, to sit to murder IC-1480 7N Col S.S. Sahota and IC-28739 W Maj. Jaspal Singh both of 8 JAT.
Second Charge Army Act Section 69 (against both the accused.) Committing a civil offence that is to say, Murder, contrary to Section 302 read with Section 34 of the Indian Penal Code.
In that they together, at Field on 16th June, 1987, by causing the death of IC-28739W Major Jaspal Singh of 8 JAT, committed murder.
Third charge Army Act Section 69 (against accused No. 1).
Committing a civil offence, that is to say, murder, contrary to Section 302 of the Indian Penal Code in that the, at Field, on 16th June, 1987, by causing the death of IC-41176A Cap B.K.Chottri of 8 JAT, committed murder.
Fourth Charges Army Act Section 69 (against accused No. 1), Committing, a civil offence, that is to say, murder, contrary to Section 302 of the Indian Penal Code.
In that he, at Field, on 16th June, 1987, causing the death of MS-1173A Capt. A Shrivastava of 302 Field Ambulance committed murder.
Fifth Charge Army Act Section 69 (against accused No. 2.).
Committing a civil offence, that is to say, murder, contrary to Section 302 of the Indian Penal Code.
In that he, at Field on 16th June, 1987, by causing death of IC-14807N Col. S.S. Sahota of 8 JAT, committed murder."
4. The thrust in present petition is to challenge the legality of death penalty imposed on the petitioners. Learned Counsel for the petitioners has not made any submission questioning the finding of guilt recorded by the Court Martial and we think rightly so since the petitioners in their confessional statements had admitted the killing but had pleaded that they were instigated by their superior officer Major Budhawar. Learned Counsel, however, contends that the sentence of death deserves to be converted into imprisonment for life and the grounds put forth are:--
1. Violation of principles of natural justice in as much as no reasons have been recorded while pronouncing sentence and rejecting petitions filed under Sections 164 (1) and 164 (2) of the Act.
2. The petitioners were not granted opportunity of hearing before awarding death sentence and special reasons for awarding death sentence have not been stated.
3. There is long delay in decision of pre and post confirmation petition and in the execution of death sentence.
4. It is not rarest of rare case deserving death sentence.
5. We have no difficulty in accepting the general proposition urged by Mr.S.K.Bagga, learned Counsel for the petitioners, that the rules of natural justice should be followed in a Court Martial. The further contention that the violation of principles of natural justice is writ large because no reasons have been given in the order dated 10th December, 1988 and in the letters rejecting pre and post confirmation petition cannot be accepted in view of decision of Supreme Court in the case of S.N. Mukherjee v. Union of India . It has been held in this decision that at the stage of recording of findings and sentence the Court Martial is not required to record its reasons and at that stage reasons are only required for the recommendation for mercy if the Court Martial makes such a recommendation. In this case there was no question of any such recommendation as maximum sentence had been awarded by the Court Martial. It has also been held in Mukherjee's case that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post confirmation petition. In view of law laid down by Supreme Court, the reliance of Mr.Bagga on a Single Bench decision of Gauhati High Court in the case of KH.R Singh v. Union of India and Ors. (1993) 1 Gauhati Law Reports 293, is misplaced. It seems the decision of Supreme Court in Mukherjee's case was not cited before Gauhati High Court.
6. In support of the second ground, learned Counsel for the petitioner placing reliance on Section 235(2) and Section 354(3) of Code of Criminal Procedure contends that as required by these provisions neither the petitioners were granted hearing on the question of sentence nor special reasons for awarding death sentence have been stated. In support of the contention two decisions cited are (1) Muniappan v. State of Tamil Nadu and (2) Allauddin Mian and Ors., Sharif Mian and Anr. v. State of Bihar . In the cited decisions, the Supreme Court was dealing with cases governed by Code of Criminal Procedure. In Court Martial proceedings Section 235(2) or Section 354(3) would not apply. Mr.Shali learned Counsel for the respondents rightly relies upon Section 5 Cr.P.C. which lays down that nothing contained in the Code shall in the absence of a special provision to the contrary affect at any special or local law for the time being in force. The Army Act is self contained comprehensive Code. The effect of Section 5 of Code of Criminal Procedure is to render the provisions of the Code inapplicable in respect of all matters covered by such special law. This question is no longer resintegra and is covered by decision of Supreme Court in Ajmer Singh and Ors. v. Union of India and Ors. . (Also see Bhuwneshwar Singh v. Union qf India and Ors., , F.R Jesuratnam v. Chief of Air Staff Vayu Bhavan, New Delhi and Ors. 1976 Crl.LJ.65 (Delhi High Court) and T.S. Ramani v. The Superintendent of Prisons, Central Jail, Madras and Ors., 1984 Crl.LJ. 892 (Madras High Court). Though provision of Sections 235(2) and 354(3) are not applicable but to say that the petitioners were not heard on question of sentence is not correct as would be apparent from the following answer given by petitioner No. 1: "I am 27 years old and my character has been very good throughout in the civil and military life. I have an illiterate wife and small daughter. I am married for the last about two and a half years. My mother is old and without any support. My father has died a few months ago. I am from a very poor family. I have served my country with devotion and patriotism. There is no earning member in my house except me. I, therefore, pray to the Court that the Court in mitigation take a lenient view while awarding punishment." On similar lines was the answer of petitioner No. 2. We do not find any substance in the second ground as well.
7. Regarding the third ground, Counsel for the petitioners points out that pre-
confirmation petition was decided after almost two years and two months and post confirmation petition after about one year and seven months, and contends that on account of this inordinate delay, the death sentence is liable to be converted into life sentence. The delay before decision of post confirmation petition is not relevant as the delay that can be taken into consideration for converting death sentence into life sentence is the one which takes place after finding and sentence has attained finality. This question also now stands concluded by a decision of Supreme Court in the case of Smt. Triveniben v. State of Gujarat . The confirmation of the findings and sentence of the Court Martial is necessary before the said findings and sentence becomes operative (Mukherjee's case).
8. The question of sentence has to be decided by taking into account the aggravating circumstances as well as mitigating circumstances and then drawing a balance. The manner in which the crime was committed, the weapons used and brutality or lack of it are some of these relevant considerations to be borne in mind. One regard is to be given both to the crime and the criminal. This was a case of killing of a Commanding Officer, an Officer Second in Command and two other officers. The Commanding Officer in an Army Regiment is like a father to his subordinates. The contention that the petitioners had good service record and had no advantage in killing these officers and they had killed these officers on instigation of Major Budhawar cannot be accepted in the present petition as without going into these aspects but assuming two views on question of sentence were possible, it is not for this Court to substitute its view for that of the authority under the Act. It cannot be held that the view of authorities in awarding death penalty was in manner perverse. We may notice that according to respondents life sentence was imposed on Major Budhawar as he was charged for abetment whereas petitioners were actual perpetrators of the crime. The decision of Supreme Court in Ranjit Thakur v. Union of India and Ors., and Ex.Naik Sardar Singh v. Union of India and Ors., AIR 1992 SC 417 applying the doctrine of proportionality as part of concept of judicial review even on an aspect which is, otherwise, within the exclusive province of Court Martial on the ground that the Court finds sentence as outrageous defiance of logic, irrationality and perversity has no applicability whatsoever in the present case. In these two decisions the Apex Court was considering cases where harsh and illogical punishment had been inflicted though offences alleged were minor and not very serious.
For the reasons aforesaid we do not find merit in any of the grounds and the petition is, accordingly, dismissed. No costs.