Court No. - 4
In Re : Criminal Misc. Application No. 402620 of 2017.
Case :- CAPITAL CASES No. - 5263 of 2006
Appellant :- Devendra & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Anoop Trivedi,Brajesh Kumar,Pradeep Kumar Pandey
Counsel for Respondent :- Govt. Advocate
Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.
Counter affidavit filed by learned A.G.A. on behalf of the State in the juvenile matter in the Court today is kept on record.
Learned counsel for the appellants has stated that he does not propose to file any rejoinder affidavit to the counter affidavit of the State.
Heard learned counsel for the appellants and learned A.G.A. for the State.
This application has been moved on behalf of the applicant-appellant no. 2, Sunder in Capital Case No. 5263 of 2006 filed by the applicant- appellant no. 2, Sunder and the other appellants against the judgment and order dated 22.08.2016 passed by Additional District & Sessions Judge, Court No. 2, Bulandshahar in Sessions Trial No. 1424 of 2002 (State vs. Sunder) by which applicant-appellant no. 2, Sunder was convicted and sentenced to be hanged till his death under Sections 302/149 I.P.C. together with fine of Rs. 5000/- and in default of payment of fine one year additional imprisonment which was dismissed by this Court by its order dated 16.3.2007.
This application has been filed by the applicant-appellant no. 2, Sunder to release him from the prison on the ground stated in the affidavit accompanying this application that he has already remained in jail for the last more than 16 years.
It appears that the applicant-appellant no. 2, Sunder subsequent to the judgement and order dated 16.3.2007 passed by this Court dismissing this appeal, moved by the appellants for declaration of his juvenility on the date of incident before the Juvenile Justice Board, Bulandshahar being Misc. Case No. 99 of 2016. The Juvenile Justice Board by it's order dated 25.2.2017, copy whereof has been brought on record as Annexure-8 to the affidavit accompanying this application arrived at the conclusion that the age of the applicant-appellant no. 2, Sunder on the date of incident was about 13 years and thereby he was below 18 years of age. Accordingly, by the said order, the Juvenile Justice Board declared him as a juvenile offender. The order passed by Juvenile Justice Board further indicates that the applicant-appellant no. 2, Sunder was declared juvenile on the basis of his medical examination conducted by the Medical Board.
Learned counsel appearing for the applicant-appellant no. 2, Sunder submitted that in view of the fact that applicant-appellant no. 2, Sunder was declared juvenile by the Juvenile Justice Board, Bulandshahar by order dated 25.2.2017 which has admittedly attained finality as is evident from the averments made in paragraph 3 of the counter affidavit filed on behalf of the State in the juvenile matter, the applicant-appellant no. 2, Sunder is entitled to exemption under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 which has now been substituted by Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the "Act").
He further submitted that applicant-appellant no. 2, Sunder is in jail since June, 2002 which has not been disputed by learned A.G.A. In these circumstances, the applicant-appellant no. 2, Sunder now having being declared juvenile on the date of incident is entitled to be released forthwith.
Learned A.G.A. appearing for the State opposed the submissions made by the learned counsel for the applicant-appellant no. 2, Sunder. However, he has not disputed the fact that the applicant-appellant no. 2, Sunder is in jail for the last more than 16 years and he has been declared juvenile by the Juvenile Justice Board, Bulandshahar by order dated 25.2.2017 which has attained finality.
The Apex Court in Ajay Kumar v. State of M.P., (2010) 15 SCC 83 has observed as hereunder :
"......................In the light of the aforesaid provisions, the maximum period for which a juvenile could be kept in a special home is for three years. In the instant case, we are informed that the Appellant who is proved to be a juvenile has undergone detention for a period of about approximately 14 years. In that view of the matter, since the Appellant herein was a minor on the date of commission of the offence and has already undergone more than the maximum period of detention as provided for Under Section 15 of the Juvenile Justice Act, by following the provisions of Rule 98 of Juvenile Justice Rules, 2007 read with Section 15 of the Juvenile Justice Act, we allow the appeal with a direction that the Appellant be released forthwith. "
The same view as followed in Hakim v. State, (2014) 13 SCC 427 and Lakhan Lal v. State of Bihar, (2011) 2 SCC 251.
For the aforesaid reasons, we are of the view that applicant-appellant no. 2, Sunder is entitled to get the benefit under the Act, since he was juvenile on the date of commission of occurrence.
However, since the recorded conviction by the trial has been affirmed by this Court while dismissing the conviction of the applicant-appellant no. 2, Sunder, we direct that applicant-appellant no. 2, Sunder shall be released forthwith.
Order Date :- 31.5.2018 SA