Holding

The Court upheld the convictions, imposed a two‑year rigorous imprisonment on the adult offender, and ordered the juvenile offender to be placed in a facility separating him from adult prisoners, noting that judicial legislation cannot substitute for absent statutory provisions.

Summary

The Supreme Court dismissed an appeal by special leave concerning the convictions of Munni Marandi and Babua Marandi for offences under Section 149 read with Section 326 of the IPC. Munni, an adult, was found to have participated in a crowd that chased the deceased and was sentenced to two years of rigorous imprisonment, deemed appropriate given his age and lack of overt act. Babua, a 15‑year‑old, had held the deceased during the incident; while his conviction and sentence were not altered, the Court noted the absence of a Children Act in Bihar and could not create judicial legislation to treat him as a child. Consequently, the Court directed that Babua be placed in an open, model, or any suitable prison where young offenders are kept separate from adult inmates. The judgment emphasized the need for legislative action to protect juvenile offenders and upheld the principle that courts cannot fill legislative gaps.

Issues considered

Whether the conviction and sentence of a minor can be altered in the absence of specific juvenile legislation.
Appropriate sentencing for an adult participant in a rioting offence under Section 149 read with Section 326 IPC.
Whether the judiciary can legislate for the separation of juvenile offenders from adult prisoners when no statutory provision exists.

Legislation cited

Code of Criminal Procedure, 1973s. 354(3), s. 360, s. 365
Indian Penal Code, 1860s. 149, s. 326

Subjects

sentencingjuvenile offenderadult offenderprison segregationlegislative vacuumjudicial legislationIPCCrPCChildren Actriotingmurder

Judgment

587

SUSHIL CHOWDHARY AND ORS. A
v.
STATE OF BIHAR
September 6, 1979
(V. R. KRISHNA IYER AND P. N. SHINGHAL, JJ.] B
Sentencing pro.ccs.\-Sent£nce for aged persons and youthful offenders---
Sections 354(3), 360 and 365 Crl. P.C., 1973.

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 oveit act, a sentence of two years R. I. \VOuld, in the cir- C
~umstanccs of his case me~t 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 yea~ 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 D
vacuun1 all that this Court can dt'.:l 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 d.oing so is that adolescents should be separated ffom adults in
prison campuses for obvious reasons. [588C-E]

OtIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 483 E
of 1979.
Appe:al by Special Leave from the Judgment and Order dated
22-3-1979 of the Patna High Conrt in Cr!. 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. F

The Order of the Court was delivered by
KRISHNA IYER, J. We have heard the arguments of appellants'
<:ounsel with specific reference to Munni Marandi and Bitbua Marandi
tlre appellants herein. We have also read through the evidence relat-
G
ing to these accused persons aided by counsel for the State. The
role attributed to Munni Marandi is that he was a member ot 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 re'gard to the age of the
accused and to the absence of any overt act on his part, we consider B
that a sentence of two years' R.I. will, in the circumstances of this
case, meet the ends of justice.
588 SUPREME COURT REPeRTS (1980] 1 S.C.R.

A Babua Marandi, a boy aged 15, was also in the crowd. In the
excited chase of the deceased, this boy also followed and when ihe
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 con-
viction or the sentence. Nevertheless, it is important to remember
B 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 Legisl'ature 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 beeri circulated by
c 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
D
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.
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