Surinder Singh, J.
1. This judgment will dispose of Criminal Writ Petitions Nos. 25 and 28 of 1979, as the facts in both the cases are quite parallel and the point involved is also the same.
2. For the purpose of this judgment, the facts in Criminal Writ Petition No. 25 of 1979 shall be noticed. It is undisputed that the petitioner along with twelve others was convicted under Sections 302/149, 326/149 and 148, I.P.C. by the Sessions Judge, Ferozepore, who sentenced them to various terms of imprisonment for these offences. The material part of the sentence is the one imposed upon them under Sections. 302/149, I.P.C. i.e., imprisonment for life. It is also a matter of record and, in fact, this allegation is contained in the petition itself that the petitioner filed an appeal in this Court against his aforesaid conviction and sentence, which was dismissed by a Division Bench of this Court. The age of the petitioner in this petition as also in the connected Writ Petition, was mentioned during their trial as sixteen years. The question as to whether they ought to have been dealt with under the provisions of the East Punjab Children Act, 1949 (hereinafter referred to as the Act) was, however, not agitated, nor gone into either at the trial or at the appellate stage. The petitioner was, therefore, housed in Borstal Jail at Faridkot, where he is undergoing a sentence of imprisonment for life.
3. The present petition has been launched by the petitioner with the base that by virtue of the provisions of Section 42 of the Act, he could not be detained in prison after attaining the age of eighteen years. The contention is that if the age of the petitioner is deemed to be sixteen years at the time of the trial, having undergone, by now more then four years of imprisonment, he is deemed to have crossed the age of eighteen years and, hence, entitled to the benefit under the aforesaid provision of the Act. When the Writ Petition was heard at the motion stage, it was thought expedient that the same should be considered by a Division Bench, in view of the fact that the conviction and sentence imposed upon the petitioner had been upheld in appeal by a Division Bench of this Court. This is how the two Writ Petitions have been placed before us for consideration.
4. We have heard the learned Counsel for the petitioner at considerable length. The two relevant provisions to which our attention has been invited, are Sections 34 and 42 of the East Punjab Children Act, 1949, which are reproduced below for ready reference:
34(1) When a child is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment which, under the provisions of this Act, it is authorised to inflict is sufficient, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and report the case for the orders of the State Government.
(2) Notwithstanding the provisions of Section 27, the State Government may order any such child to be detained in such place and on such conditions as it thinks fit, and while so detained the child shall be deemed to be in legal custody:
Provided that no period of detention so ordered shall exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed.42. The period for which a child or youthful offender is to be detained in a certified school shall be specified in the order in pursuance of which he is sent there and shall be such period not being less then two years in the case of a youthful offender who at the date of the order is over the age of fifteen years and three years in the case of other youthful offenders as the Court may deem proper for his teaching and training but not in any case extending beyond the time when he will, in the opinion of the Court, attain the age of eighteen years.
5. The learned Counsel for the petitioner mainly relies upon the words 'but not in any case extending beyond the time when he will, in the opinion of the Court, attain the age of eighteen years' as contained in Section 42 above. The argument is that in view of this specific provision, resort cannot be had to Section 34 of the Act. We, however, fail to appreciate this line of argument. Both the provisions, namely, Sections. 34 and 42, form part of the statute and it cannot be said that Section 34 was enacted without purpose. A plain reading of the two provisions makes it obvious that Section 42 relates to the case of children or youthful offenders who are to be detained in certified schools and upon whom the benefit under the Act can be conferred. Section 34, on the other hand is a special provision which pertains to a child offender, who is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment which, under the provisions of the Act, it is authorised to inflict, is sufficient. In such cases, the Court has to order the offender to be kept in safe custody in such place or manner as it thinks fit and report the case for the orders of the State Government. The Proviso under the said section recites that the period of detention of such a child shall not exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed by him. The two provisions, thus, do not in any way clash with each other, On the contrary, Section 34 is a special provision which must take precedence over the general provision contained in Section 42. The argument of the learned Counsel must, therefore, be repelled.
6. The learned Counsel for the petitioner has indeed relied upon certain observations of a Division Bench of this Court in Pritam Singh v. State of Punjab 1977 Cri LJ 51, wherein it was thought desirable to deal with the appellants in that case under the provisions of the Act. This was, however, done at the appellate stage and there cannot be any possible objection to this course being adopted. The authority is, therefore, of no assistance in so far as the piesent case is concerned. The other authority cited by the learned Counsel is of a learned Single Bench of this Court in Jaswant Singh v. State of Punjab 1977 Chand LR (Cri) 246 (Punj & Har) in which a Criminal Writ petition filed on behalf of a child who was eleven years old at the time of his conviction, was allowed and he was ordered to be released as he had attained the age of eighteen years.
The question of the applicability of Section 34 of the Act was, however, not before the learned Judge, nor was it touched in the said judgment. As against the aforesaid decision, there is a direct authority on the point by a Division Bench of this Court in Criminal Writ No. 34 of 1972 (Narjit Singh v. State of Punjab) decided on April 6, 1973, and one of us was a party to the said decision. After a detailed consideration of the factual as well as the legal aspect of the whole matter, the Bench in the said case found that the only appropriate course was to report the case to the State Government under Section 34(1) of the Act and it was ordered accordingly. The learned Counsel for the petitioner has tried to distinguish the said case by urging that the petitioner in that case was attributed with a serious participation in the crime, which was not so in the case in hand. We do not however, agree with this contention. It is not merely the part ascribed to each individual accused which is relevant for the purpose of considering whether the offence committed was of a serious nature, but it is the totality of all the circumstances which have to be taken into account. Considering the matter from that angle, we find that both the petitioners in the present Writ Petitions before us ought to be dealt with under the provisions of Section 34(1) of the Act. Following the dictum of Narjit Singh's case (supra), we report the case to the State Government under Section 34(1) of the Act and direct that the petitioner, who is already housed in the Borstal Jail, Faridkot, be kept in safe custody in that institution, separate from adult prisoners and hardened criminals, having proper facilities for education, vocational training and ethical instruction, on such conditions and for such period as the State Government thinks fit. Of course, as postulated under the Act, the said period shall not exceed the maximum period of imprisonment to which the petitioner could be sentenced for the offence of murder. We further direct that the State Government shall take the decision under Section 34(2) of the Act within two months from today, with respect to the place and conditions of the petitioner's detention.
7. Both the Writ Petitions are disposed of accordingly.