Allahabad High Court
Ram Kumar And Others vs State Of U.P. on 18 November, 2021
Bench: Ramesh Sinha, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on : 15.11.2021 Delivered on : 18.11.2021 Court No. - 1 Case :- CRIMINAL APPEAL No. - 875 of 1981 Appellant :- Ram Kumar And Others Respondent :- State of U.P. Counsel for Appellant :- S.H. Ibrahim,Dharmendra Kumar Tiwari,Ravindra Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Vivek Varma,J.
(Per : Ramesh Sinha, J. for the Bench) (1) The instant criminal appeal under Section 374 (2) Cr.P.C. has been filed by appellants, Ram Kumar and Sangram, against the judgment and order dated 25.11.1981 passed by the III Additional Sessions Judge, Faizabad in Sessions Trial No. 195 of 1981 : State Vs. Ram Kumar and others relating to Case Crime No. NIL of 1981, under Sections 307 and 323 I.P.C., which was later on converted under Section 302 I.P.C., Police Station Ibrahimpur, District Faizabad, whereby the III Additional Sessions Judge, Faizabad, convicted the appellants, Ram Kumar and Sangram, under Section 302 read with Section 34 Indian Penal Code, 1860 and sentenced them to undergo imprisonment for life, however, accused Ram Sundar has been acquitted of the charges.
(2) It transpires from the record that a Co-ordinate Bench of this Court, vide order dated 11.10.2018, partly allowed the instant appeal. The operative portion of the order dated 11.10.2018 is reproduced as under :-
"28. In view of the aforesaid discussion, the present appeal is partly allowed and the accused-appellants are convicted under Section 304 Part I IPC instead of Section 302 IPC and their sentence is modified for life to 10 years rigorous imprisonment.
29. The accused-appellants are on bail. Their bail bonds are cancelled and sureties are discharged. After they complete their sentence they would be free forthwith."
(3) Subsequently, appellant no.2-Sangram has filed application for condonation of delay in filing the modification application (C.M. Application No. 115040 of 2019) and the application for modification of the judgment and order dated 11.10.2018 (C.M. Application No.115042 of 2019). A Co-ordinate Bench of this Court, vide order dated 18.11.2019, condoned the delay in filing the modification application and rejected the application for modification. The order dated 18.11.2019 is reproduced as under :-
"(C.M.A. No. 115040 of 2019- Delay & C.M.A. No. 115042 of 2019 - Modification Application) Heard learned counsel for the applicant and perused the record.
In view of the facts stated in the accompanying affidavit filed in support of application for condonation of delay in filling the application for modification of order dated 11.10.2018, delay is condoned.
Further, by means of application for modification, the appellant has sought modification of judgment/order dated 11.10.2018 passed in Criminal Appeal No. 875 of 1981 by a Division Bench of this Court (Hon'ble prashant Kumar, J. and Ho'nble Dinesh Kumar Singh, J.).
After hearing learned counsel for appellant and going through the record, we are of the considered opinion that the application moved by the appellant for modification of judgment/order dated 11.10.2018 passed in Criminal Appeal No. 875 of 1981 by a Division Bench of this Court (Hon'ble prashant Kumar, J. and Ho'nble Dinesh Kumar Singh, J.) is not maintainable under the law as there is no provision for modification/ review of the final judgment/order under Code of Criminal Procedure.
Accordingly, the application for modification is rejected."
(4) Feeling aggrieved by the aforesaid judgment and order dated 11.10.2018, appellant no.2-Sangram has approached the Hon'ble Supreme Court by filing Criminal Appeal No. 907 of 2021 (arising out of SLP (Crl.) No. 6432 of 2021) : Sangram Vs. The State of Uttar Pradesh & Anr. The Hon'ble Supreme Court, vide judgment and order dated 27.08.2021, condoned the delay in filing the appeal and disposed of the appeal. The order dated 27.08.2021 is reproduced as under :-
"1 Delay condoned.
2 Leave granted.
3 The appeal arises out of a judgment of a Division Bench of the High Court of Judicature at Allahabad dated 11 October 2018 in Criminal Appeal No 875 of 1981.
4. By a judgment dated 25 November 1981, the appellant was convicted by the IIIrd Additional Sessions Judge, Faizabad in Sessions Trial No 195 of 1981 for an offence punishable under Section 302 of the Indian Penal Code 1860.
5. During the pendency of the appeal before the High Court, a plea of juvenility was raised on behalf of the appellant on the ground that on 8 January 1981, when the incident took place, the appellant was about fifteen years of age. The order of the High Court dated 22 November 2017 (Annexure P-3) records, thus:
"Principal Magistrate, Juvenile Justice Board, Ambedkar Nagar vide his letter dated 13.10.2017 has sent the enquiry report regarding the declaration of juvenility of appellant No. 2(Sangram).
According to the said report, appellant No. 2(Sangram) juvenile on the date of occurrence i.e. 08.01.1981. Let this report be kept on the record.
As prayed, list this appeal on 08.12.2017."
6. The appeal was disposed of by the High Court on 11 November 2018, without considering the issue as to whether the appellant was a juvenile on the date on which the alleged offence is stated to have been committed.
7. Subsequently, the appellant moved CM Application No 115042 of 2019. By an order dated 27 September 2019, the application was directed to be listed before the Division Bench which had disposed of the appeal. However, the application was dismissed by an order dated 18 November 2019 on the ground that there is no provision for modification/review of the final judgment and order under the Code of Criminal Procedure 1973. The appeal has accordingly travelled to this Court.
8. The plea of juvenility was raised before the High Court during the pendency of the appeal. The order of the High Court dated 22 November 2017 indicates that the Principal Magistrate of the Juvenile Justice Board, Ambedkar Nagar has submitted his report with a letter dated 13 October 2017. The plea of juvenility has not been decided by the High Court. In this view of the matter, it would be necessary to remit the proceedings back to the High Court to consider the issue of juvenility. It is a settled principle of law that the plea of juvenility can be raised at any stage of the proceedings.
9. The High Court shall consider the plea of juvenility which has been raised by the appellant with reference to which a report dated 13 October 2017 of the Principal Magistrate, Juvenile Justice Board, Ambedkar Nagar has been submitted. We clarify that we have not expressed any view on the merits of the plea of juvenility which shall be decided by the High Court in accordance with law. If the plea of juvenility succeeds before the High Court, necessary consequences under the law shall then follow.
10. For the aforesaid purpose, we remit the proceedings back to the High Court which shall be dealt with on the file of Criminal Appeal No 875 of 1981 before the appropriate Division Bench according to the roster of work assigned by the Chief Justice. The High Court is requested to take up the matter and dispose it of in terms of the aforesaid directions within a period of three months from the date of receipt of a certified copy of this order.
11. An application for bail, being IA No 90943 of 2021, has been moved in these proceedings on behalf of the appellant. We grant liberty to the appellant to move the High Court of Judicature at Allahabad for the grant of bail which may be considered expeditiously by the High Court.
12. In the event that the appellant requires the benefit of legal aid, a legal aid counsel shall be made available by the High Court.
13. The appeal is accordingly disposed of.
14. Pending application, if any, stands disposed of."
(5) In these backgrounds, the instant criminal appeal has come up before this Court.
(6) At the outset, Sri Ravindra Kumar Dwivedi, learned Counsel appearing on behalf of the appellant no.2-Sangram, has pointed out that though appellant no.2-Sangram has sent a letter from the Jail for providing him the services of amicus curiae as he is unable to engage the Counsel of his choice, but subsequently, son of the appellant no.2-Sangram has engaged him to argue the present appeal.
(7) Heard Shri Ravindra Kumar Dwivedi, learned Counsel appearing on behalf of the appellant no.2-Sangram and Ms. Smiti Sahay, learned Additional Government Advocate appearing on behalf of the State.
(8) It has been pointed out by the learned Counsel for the parties that no appeal against the judgment and order dated 11.10.2018 passed by the Co-ordinate Bench of this Court has been preferred by the appellant no.1-Ram Kumar. However, the judgment and order dated 11.10.2018 passed by the Co-ordinate Bench of this Court has been challenged by the appellant no.2-Sangram before Apex Court and the Apex Court, vide order dated 27.08.2021, disposed of the criminal appeal preferred by the appellant no.2 and remitted the matter to this Court for deciding the plea of juvenility which has been raised by the appellant no.2-Sangram with reference to which a report dated 13 October 2017 of the Principal Magistrate, Juvenile Justice Board, Ambedkar Nagar has been submitted. Hence, the instant criminal appeal has been listed before this Court only with respect to test the plea of juvenility which has been raised by the appellant no.2-Sangram only with reference to which a report dated 13 October 2017 of the Principal Magistrate, Juvenile Justice Board, Ambedkar Nagar has been submitted.
(9) Learned counsel for appellant no.2-Sangram did not raise any argument about finding returned by a Co-ordinate Bench of this Court vide judgment and order dated 11.10.2018 on the point of conviction of accused-appellant no.2 in the aforesaid offences but before this Court, only submission of the learned Counsel for the appellant no.2-Sangram is that the plea of juvenility was raised before this Court during pendency of the instant appeal by filing an application in this regard (C.M. Application No. 23429 of 2017) and a Co-ordinate Bench of this Court, vide order dated 31.08.2017, disposed of the aforesaid application with a direction to the Juvenile Justice Board, Faizabad (now Ambedkar Nagar) to inquire into the matter and report to this Court and the appellant no.2 was also directed to appear before the Juvenile Justice Board, Ambedkar Nagar.
(10) It has been argued by the learned Counsel for the appellant no.2-Sangram that pursuant to the order dated 31.08.2017, the appellant no.2-Sangram had appeared before the Juvenile Justice Board, Ambedkar Nagar and filed Transfer Certificate of Class-5, wherein the date of the appellant no.2-Sangram has been mentioned as 16.07.1965. Thereafter, the Juvenile Justice Board, Ambedkar Nagar, vide order dated 11.10.2017, after hearing the parties and going through the record, declared the appellant no.2-Sangram as juvenile on the date of the incident i.e. on 08.01.1981. He argued that no appeal/revision has been filed against the order dated 11.10.2017 passed by the Juvenile Justice Board and also no objection on behalf of the State or the complainant had also been filed challenging the report dated 11.10.2017 passed by the Juvenile Justice Board. He further argued that as the accused-appellant no.2 (Sangram) is languishing in jail since 07.05.2018 and has been declared Juvenile on 11.10.2017 in conflict with law by the Juvenile Justice Board, Ambedkar Nagar, therefore, he confined his submission to the extent of imposition of sentence/treatment only.
(11) The learned AGA has admitted the fact that no appeal/revision has been filed against the order dated 11.10.2017 passed by the Juvenile Justice Board and also no objection on behalf of the State or on behalf of the complainant had also been filed challenging the report dated 11.10.2017 passed by the Juvenile Justice Board.
(12) The report of Juvenile Justice Board, Ambedkar Nagar dated 11.10.2017 reveals that accused-appellant no.2-Sangram was aged about 15 years 05 months and 22 days on the date of incident i.e. on 08.01.981. It transpires from the report of the Juvenile Justice Board, Ambedkar Nagar dated 11.10.2017 that inquiry was conducted as per Rules and opportunity was given to the complainant as well as accused-appellant no.2-Sangram to lead evidence. Opinion formed by the Juvenile Justice Board, Ambedkar Nagar is based on the Transfer Certificate of Class-5 of appellant no.2-Sangram, which was proved by the Headmaster of the concerned school by placing relevant document of the said school. No appeal has been filed against the order dated 11.10.2017 passed by Juvenile Justice Board, Ambedkar Nagar declaring accused-appellant no.2 (Sangram) Juvenile in conflict with law as would be clear from the admission made by the learned AGA in this regard before this Court. It also appears that no objection on behalf of State is raised challenging the report dated 11.10.2017 passed by Juvenile Justice Board, Ambekdar Nagar. Thus, we are of the view that report dated 11.10.2017 passed by Juvenile Justice Board, after making thorough inquiry, is liable to be accepted and we, accordingly, accept the same.
(13) Now, since the appellant no.2-Sangram was Juvenile on the date of incident i.e. on 08.01.1981 and no argument has been advanced about conviction of accused-appellant no.2 for the aforesaid offences, therefore, this Court has to take into consideration provisions of Sections 18 and 21 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 (hereinafter referred to as "JJ Act, 2021") to pass order in respect of accused/appellant no.2-Sangram (Juvenile in conflict with law).
(14) At this juncture, it would be apt to reproduce Sections 18 and 21 of the JJ Act, 2021, which are as under :-
"Section 18 : Orders regarding child found to be in conflict with law.-
(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence 1[or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under section 15, disposed of the matter], then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to--
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."
"Section 21 : Order that may not be passed against a child in conflict with law No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force."
(15) From perusal of the aforesaid provisions, it is noticed that a juvenile in conflict with law cannot be sentenced to undergo life imprisonment, and further the maximum period of which a juvenile may be sent to a Special Home is only three years.
(16) It is pertinent to mention here that if the submission raised by learned counsel for appellant no.2-Sangram as well as learned A.G.A. are taken into consideration, the accused/appellant no.2-Sangram declared Juvenile in conflict with law under JJ Act, 2021 can be sent to Special Home for a maximum period of three years or other treatments to deal with juvenile in conflict with law have also been given under Section 15 of JJ Act, 2021.
(17) In the present case, as is evident from record and submission raised by learned counsel appearing for appellant no.2-Sangram, appellant no.2-Sangram is languishing in jail since 07.05.2018 and has undergone about more than three years imprisonment.
(18) At this juncture, it would be appropriate to look into the ratio laid down by Apex Court while dealing with the similar situation like in the case in hand.
(19) In Pradeep Kumar Vs. State of U.P. : 1995 SCC (Cri) 395, the Apex Court, on finding that accused was below 16 years on the date of commission of offence, held that as per the then provisions of Uttar Pradesh Children Act, he cannot be sentenced to life and as the accused had crossed 30 years, directed his release from Jail.
(20) In Upendra Kumar Vs. State of Bihar : 2005 (3) SCC 592, under similar circumstances, the Apex Court sustained the conviction under Section 302 IPC, however, quashed the life sentence and ordered release of juvenile from jail.
(21) In Vaneet Kumar Gupta @ Dharminder Vs. State of Punjab : 2009 (17) SCC 587, accused, who was sentenced to life under Section 302 read with 149 I.P.C., was found to be a Juvenile at the time of commission of the offence. The Apex Court noticing the fact that he is in jail for several years, directed his release from jail.
(22) Similar view has also been taken in Satish @ Dhanna Vs. State of M.P. and others : 2009 (14) SCC 187 and in Vikram Singh Vs. State of Haryana : 2009 (13) SCC 645.
(23) In Dharambir Vs. State : 2010 (2) SCC 344, appellant was sentenced to life. In the course of his Criminal Appeal before Apex Court, in the enquiry conducted, it was found that at the time of commission of offence, he was below 18 years of age and was a juvenile in conflict with law and by the time his appeal reached the Supreme Court, he had reached 35 years of his age and had spent 2 years, 4 months and 4 days in jail. So, even as per Section 15 of the JJ Act, 2000 he has to be sent to the Special Home for the balance 8 months. The Apex Court noticing that sending him to Special Home will not be in the interest of other juveniles in the Home, directed his release from jail.
(24) In Bhim @ Uttam Ghosh Vs. State of West Bengal 2010 (14) SCC 571, appellant was sentenced to 5 years rigorous imprisonment. It was established before the Apex Court that on the date of offence, he was a juvenile in conflict with law and he is entitled to the benefit of JJ Act, 2000 and by that time, he has become 42 years old. But, he was in jail for less than 3 years. In the circumstances, the Apex Court did not detain him in jail for the remaining period but directed his release from jail.
(25) In Lakhan Lal Vs. State of Bihar : 2011 (2) SCC 251, accused who was sentenced to life under Section 302 read with 34 I.P.C. was found to be a Juvenile in conflict with law at the time of commission of the offence. By the time his appeal reached to Supreme Court, he had crossed 40 years age. He was in jail for more than 7 years. Under these circumstances, referring to Dharambir Vs. State (supra), the Apex Court set aside his life sentence and directed his release.
(26) In Amit Singh Vs. State of Maharashtra and another : 2011 (13) SCC 744, accused was found guilty under Section 396, 506, 341, 379 read with 120-B I.P.C. and Section 25 (1-B), 5 read with 27 of Arms Act. Apart from the other sentence of imprisonment, he was also sentenced to life and his sentences were confirmed by Bombay High Court. The Apex Court also dismissed his Special Leave Petition. Subsequently, he filed a Writ Petition before Supreme Court under Article 32 of Constitution claiming juvenility which was considered and he was found to be eligible for benefit under JJ Act, 2000 and considering the fact that by that time he had been in jail for 12 years, Court held that he was in jail for more than the maximum period for which a juvenile may be confined in a Special Home and directed his release from jail.
(27) In Kalu @ Amit Vs. State of Haryana : 2012 (3) SCC (Cri) 761, the Apex Court, while confirming conviction of the appellant under Section 302 read with Section 34 I.P.C., since the appellant was a Juvenile in conflict with law within the meaning of JJ Act, 2000 on the date when the offence was committed, he was already in Jail for 9 years and attained majority long back, directed his release from jail and also noticing Section 19 of JJ Act, 2000 held that he shall not incur any disqualification because of his conviction.
(28) In Vijay Singh Vs. State of Delhi : 2012(3) SCC (Cri) 1044, appellant who was convicted and sentenced to undergo 5 years rigorous imprisonment under Section 307 IPC, claimed that he was a Juvenile in conflict with law on the date of commission of offence and Court on the basis of the date of birth mentioned in his School Leaving Register and his Original Admission Register accepted his plea of juvenility and noticing that the appellant is in jail for more than 3 years directed his release from jail.
(29) In Babla @ Dinesh Vs. State of Uttarakhand : 2012 (3) SCC (Cri) 1067, appellant was sentenced to life under Section 302 read with 149 I.P.C. and on the basis of the report of the Sessions Judge, Court accepted that the appellant was Juvenile in conflict with law on the date of commission of offence and since he was in jail for more than 3 years out of the maximum period prescribed under Section 15 of JJ Act, 2000, set aside his life sentence and directed his immediate release from jail.
(30) In Mahesh and others Vs. State of Rajasthan and others : 2019 (3) Crimes 60 (SC), the Apex Court has held as under :-
"10. On the contrary, having regard to the period of custody suffered; the age of the accused Appellants as on date; the efflux of time since the date of occurrence and all other relevant facts and circumstances, we are of the view that while maintaining the conviction of the accused appellants the sentence imposed should be modified to one of the period undergone. We order accordingly."
(31) Keeping in mind the aforesaid legal propositions of law and also considering the facts and circumstances of the case, period of imprisonment, the age of the accused/appellant no.2-Sangram as on date, the efflux of time since the date of occurrence, we are of the considered view that no fruitful purpose would be served by remanding the matter to Juvenile Justice Board as accused-appellant no.2 (Sangram) has already served out more than three years sentence. Moreover, he was aged about 15 years 05 months and 22 days on the day of incident and by now must have crossed the age of 56 years. Therefore, he could not be kept along with other Juveniles in Juvenile Special Home in this age group.
(32) In view of the aforesaid, we confirm the judgment and order dated 11.10.2018 passed by the Co-ordinate Bench of this Court so far as the conviction of the accused/appellant no.2-Sangram. However, so far as sentence imposed vide judgment and order dated 11.10.2018 to appellant no.2-Sangram is concerned, the same is modified to the period already undergone by appellant no.2-Sangram. Appellant no.2-Sangram shall be set at liberty if not wanted in any other case.
(33) The appeal is, accordingly, partly allowed.
(34) Let a copy of this judgment be sent to the trial court concerned forthwith for compliance and further necessary action.
(Vivek Varma, J.) (Ramesh Sinha, J.)
Order Date : 18.11.2021
Ajit/-