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PETITIONER: SUSHIL CHOWDHARY AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT06/09/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N.

CITATION:  1980 AIR 1716            1980 SCR  (1) 587  1979 SCC  (4) 488

ACT:      Sentencing  process-Sentence   for  aged   persons  and youthful offenders-Sections  354(3), 360  and 365 Crl. P.C., 1973.

HEADNOTE:      Dismissing the appeal by special leave, the Court ^      HELD: 1.  Having due  regard to  the age of the accused Munni Marandi  and to  the  absence  of  any  overt  act,  a sentence of  two years  R.I. would,  in the circumstances of his case  meet the  ends of  justice for the offence u/s 149 read with Section 326 I.P.C. [587 G-H]      2. Absence  of legislation  cannot be  made up  for  by judicial legislation, Babua Marandi was aged 15 years at the time of  the offence  and there is no Children Act in Bihar. Though the conviction or sentence cannot be interfered with, in the hapless circumstances of the case and in the helpless situation of  legislative vacuum  all that this Court can do is to  direct that Babua Marandi be placed either in an open prison or in a model prison or any other prison available in the State  where young  offenders are  kept apart  from  the adult offenders. The special directions for doing so is that adolescents  should  be  separated  from  adults  in  prison campuses for obvious reasons. [588C-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 483 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 22-3-1979  of the  Patna High Court in Crl. A. No. 356 and 407/73.      B. P. Singh and L. R. Singh for the Appellants.      S. N. Jha and U. P. Singh for the Respondent.      The Order of the Court was delivered by      KRISHNA  IYER,  J.  We  have  heard  the  arguments  of appellants’ counsel with specific reference to Munni Marandi and Babua  Marandi the  appellants herein. We have also read through the evidence relating to these accused persons aided by counsel  for the  State. The  role  attributed  to  Munni

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Marandi is  that he  was a  member of the crowd which chased the deceased  and in that sense was liable under Section 149 read with  326 I.P.C. We cannot fault the High Court for the conviction rendered, but having due regard to the age of the accused and  to the absence of any overt act on his part, we consider that  a sentence  of two  years’ R.I.  will, in the circumstances of this case, meet the ends of justice. 588      Babua Marandi, a boy aged 15, was also in the crowd. In the excited  chase of  the deceased,  this boy also followed and  when  the  actual  sword  thrust  was  made  by  Ranjit Chaudhry, this  boy held  the deceased.  In this  sense, his part is  different from  that of  Munni Marandi. We are not, therefore, disposed  to interfere with his conviction or the sentence. Nevertheless,  it is  important to  remember  that Babua Marandi  was aged  15 years at time of the offence. It is regrettable-and this Court has pointed this out more than once-that there  is no  Children Act  in Bihar,  and in this International Year  of the  Child we  have to emphasize that the Legislature  is expected  to do its duty by the children of Bihar  by considering  the passing  of a measure like the Children Act  which long  ago had  been  circulated  by  the Central Government  and which exists in some other states in the country.  Be that  as it may, we are unable to deal with Babua Marandi  as a child for the simple reason that absence of  legislation   cannot  be   made  up   for  by   Judicial legislation.  All   that  we   can  do,   in   the   hapless circumstances of  the case  and in the helpless situation of legislative vacuum,  is to  direct  that  Babua  Marandi  be placed either  in an open prison or in a model prison or any other prison  available in  the State  where young offenders are kept  apart from the adult offenders. The special reason which induces  us to make this direction is that, as is well known, adolescents should be separated from adults in prison campuses. The  vices are  obvious and  we, therefore, direct accordingly. V.D.K.                                     Appeal dismissed. 589