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Saturday, August 8, 2015

This application has been filed to release the applicant from the prison on the ground mentioned in the petition that the petitioner-applicant has already served the sentence for more than 10 years and still is in jail. “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 was followed in Hakim v. State, (2014) 13 SCC 427, and Lakhan Lal v. State of Bihar, (2011) 2 SCC 251. Hence, we think that the petitioner-applicant should get the benefit under the said Act since he was a juvenile on the date of commission of the offence. In view of the above, this appeal is allowed and the impugned judgment and order passed by the Trial Court as also the High Court are set aside. The petitioner-applicant is directed to be released forthwith.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL MISC. PETITION NO. 7526   OF  2015
                                     IN
               SPECIAL LEAVLE PETITION (CRL.) NO.1446 OF 2004

Ram Narain                                         … Petitioner
                                  :Versus:
STATE OF U.P.                                            … Respondent




                                  O R D E R

This application has been filed to release the applicant from the prison  on
the ground mentioned in  the  petition  that  the  petitioner-applicant  has
already served the sentence for more than 10 years and  still  is  in  jail.
The petitioner-applicant was sentenced for life imprisonment for  commission
of offence under Section 302 of the  Indian  Penal  Code,  1860  (“IPC”  for
short). Subsequent thereto he filed an application for  declaration  of  his
juvenility on the date of  the  incident,  before  the  competent  Court  of
jurisdiction, under the advice of his counsel, being Application  No.259  of
2013. The Juvenile Justice Board vide its order  dated  16.11.2013,  a  copy
whereof is also annexed hereto, arrived at the conclusion that  the  age  of
the applicant on the date of the incident was 15 years  11  months  26  days
only and thereby he  was  below  18  years  at  the  time  of  occurring  of
incident.  Accordingly,  by  the  said  order  the  Juvenile  Justice  Board
declared him as a juvenile offender. It  further  appears  that  before  the
Juvenile  Justice  Board  the  applicant-petitioner  produced   a   transfer
certificate wherein his date of birth was recorded as December 25, 1960.

Learned counsel appearing for the  petitioner-applicant  submitted  that  in
view  of  the  aforesaid  fact  the  petitioner-applicant  should  be  given
exemption under the provisions of Juvenile Justice (Care and  Protection  of
Children) Act, 2000. He  further  drew  our  attention  to  the  certificate
issued by the Senior Jail Superintendent,  Central  Jail,  Agra,  certifying
the period he is in jail.  The learned  counsel  appearing  in  this  matter
further  submitted  that  according  to  the  prosecution  the   petitioner-
applicant was charged under Section 302 of the Indian Penal Code,  1860  for
committing the murder of one Nathi Lal on 21st December, 1976 at about  6.30
P.M.  by  causing  him  gunshot  injury.  The  petitioner-applicant  pleaded
juvenility before the Trial Court in his statement  recorded  under  Section
313 of the Code of Criminal Procedure, 1973 on 28th July, 1978,  along  with
other grounds in  his  defence,  but  he  could  not  produce  the  transfer
certificate during prosecution being helpless and as  a  result  whereof  he
had to suffer the  sentence  under  Section  302  IPC  culminating  to  life
imprisonment. The special leave petition filed by  the  petitioner-applicant
before this Court was dismissed on 20.08.2004 and the  review  petition  was
also dismissed by this Court by its order dated 13.10.2004.

In these circumstances, the petitioner-applicant had to spend more  than  10
years in prison without getting any  remedy  under  the  provisions  of  the
Juvenile Justice (Care and Protection of Children) Act, 2000. We have  heard
the learned counsel for the petitioner-applicant. We  have  also  considered
the decisions cited by the learned counsel.

In the case of Upendra Pradhan v. State of Orissa,     2015 (5)  SCALE  634,
wherein the appeal of the accused was allowed granting him  the  benefit  of
the provisions of the Juvenile Justice (Care  and  Protection  of  Children)
Act, 2000, this Court observed:
“The learned counsel for the appellant raises the plea of  juvenility  under
Section 7(A) of the Juvenile Justice (Care and Protection)  Act,  2000.  The
plea can be raised before any Court and at any point of time. We  feel  that
the stand taken by the counsel is correct and we will look into the  present
lis keeping in mind the juvenility of the accused appellant at the  time  of
commission of  the  crime.  As  stated  earlier,  the  age  of  the  accused
appellant was less than 18 years at the time of the incident.  It  has  been
brought to our notice that the  appellant has undergone  about  8  years  in
jail. The appellant falls within the definition of “juvenile” under  Section
2(k) of the Juvenile Justice (Care and Protection of  children)  Act,  2000.
He can raise the plea of juvenility at any time and before any court as  per
the mandate of Section 7(a) and has rightly done  so.  It  has  been  proved
before us, as per the procedure  given  in  the  Rule  12  of  the  Juvenile
Justice Model Rules, 2007, and the age of the  accused  appellant  has  been
determined following the correct procedure and there is no  doubt  regarding
it.

On the question of sentencing, we believe that the accused appellant  is  to
be released. In the present matter, in addition to the fact that  he  was  a
juvenile at the time of commission of  offence,  the  accused  appellant  is
entitled to benefit of doubt. Therefore, the conviction order passed by  the
High Court is not sustainable in law. Assuming without conceding, that  even
if the conviction is upheld, Upendra Pradhan has undergone  almost  8  years
of  sentence,  which  is  more  than  the  maximum  period  of  three  years
prescribed under Section 15 of the  Juvenile  Justice  Act  of  2000.  Thus,
giving him the benefit under the Act, we strike down  the  decision  of  the
High Court. This Court has time and again held in a  plethora  of  judgments
on the benefit of the Act of 2000 and on the question of sentencing.”


We have also noticed that in Ajay Kumar v State of M.P., (2010) 15  SCC  83,
this Court observed as follows:

“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.”

                                                         (Emphasis Supplied)

The same view was followed in Hakim v. State, (2014) 13 SCC 427, and  Lakhan
Lal v. State of Bihar, (2011) 2 SCC 251.

Hence, we think that the petitioner-applicant should get the  benefit  under
the said Act since he was a juvenile  on  the  date  of  commission  of  the
offence. In view of the above, this  appeal  is  allowed  and  the  impugned
judgment and order passed by the Trial Court as also the High Court are  set
aside. The petitioner-applicant is directed to be released forthwith.




….....….……………………J
(Pinaki Chandra  Ghose)




….....…..…………………..J
(R.K. Agrawal)
New Delhi;
August 07, 2015.

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