- (1.) THIS writ petition has been filed by Amrinder Singh S/o Tara Singh, who is being tried for the offence under sections 4 and 5 of the Anti Hijacking Act, 1982 (hereinafter to be referred to as 'the Act') in case No. ASC/Ajmer/1/1985 pending before the Addl. Special Court (Judicial Zone Chandigarh) at Central Jail, Ajmer established under section 7 (2) of the Terrorist Affected Areas (Special Courts) Act, 1984.
(2.) SECTIONS 4 and 5 of the aforesaid Act read as under :- "Section-4 Punishment for Hijacking- Whoever commits the offence of hijacking shall be punished with imprisonment for life and shall also be liable to fine. Section-5 Punishment for acts of violence connected with hijacking-Whoever, being a person committing the offence of hijacking of an aircraft, commits, in connection with such offence, any act of violence against any passenger or member of the crew of such aircraft, shall be punished with the same punishment with which he would have been punishable under any law for the time being in force in India if such act had been committed in India." The petitioner's counsel urged that so far as Section 4 of the Act is concerned, the maximum and minimum punishment for hijacking is life imprisonment. The Judge trying the offence under section-4 has not been conferred any discretion to award lesser punishment than to life imprisonment, which has been made mandatory in the case of hijacking of an aircraft. The counsel for the petitioner urged that the aforesaid provision contained in Section-4 infringed Sections 235 (2) and 354 (3) of the Code of Criminal Procedure. Section 235 (2) of the Code of Criminal Procedure provides : "Sec. 235 (2) : If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." Section-354 (3) of the Code of Criminal Procedure provides : "Sec. 354 (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."
(3.) CLAUSE (2) of Section 235 Cr.P.C. was newly added and it did not exist in the old Code of 1898. This provision is according to the new trend in penology and envisages that after a Court holds a person guilty, it must consider the question of sentencing in the light of various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety and social adjustment, emotional and mental condition, and the prospects of his returning to normal path of conformity with the law. This, however, did not apply to the trials provided under the Act. At this place, we may make a mention of Section 5 of the Code of Criminal Procedure. Ordinarily, the Code will not affect (i) any special law (ii) any local law (iii) any special jurisdiction or power and (iv) any special form of procedure. The Anti-Hijacking Act, 1982 is a special law. The trials under this Act have to be conducted and concluded in the manner provided in that Act. Section 235 (2) Cr.P.C. does not apply to the trials of Anti Hijacking Act. ;