Patna High Court - Orders
Vijay Kumar @ Bhola Yadav @ Vijay Yadav & ... vs The State Of Bihar And Ors. on 31 January, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.1248 of 2010
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1. Vijay Kumar @ Bhola Yadav @ Vijay Yadav, Son of Jattu Yadav @ Ram Chandra
Yadav.
2. Gaina Yadav @ Vijay Kumar, son of Fagu Yadav
3. Nanhaque Yadav @ Nanhak Yadav @ Nanhak.
All residents of Village: Neema, P.S. M.M.C.H., District-Gaya. . .... Petitioners.
Versus
1. The State of Bihar, through Chief Secretary, Govt. of Bihar, Patna.
2. The Secretary, Home, Government of Bihar, Patna.
3. Inspector General of Police (Prison), Bihar, Patna.
4. Jail Superintendent, Central Jail, Gaya. .... .... Respondents.
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with
Criminal Writ No.1267 of 2010
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Hari Yadav, Son of Late Fagu Yadav, resident of Village-Aura, P.S. M.U. Bodh gaya,
District-Gaya. .... .... Petitioner.
Versus
5. The State of Bihar, through Chief Secretary, Govt. of Bihar, Patna.
6. The Secretary, Home, Government of Bihar, Patna.
7. Inspector General of Police (Prison), Bihar, Patna.
8. Jail Superintendent, Central Jail, Gaya. .... .... Respondents.
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Appearance :
(In CR. WJC No.1248 of 2010)
For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Advocate.
Mr. Sanjay Kumar, Advocate.
Mr. Sadanand Roy, Advocate.
For the State : Mr. Udai Shankar Singh, AC to G.A.-2.
(In CR. WJC No.1267 of 2010)
For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Advocate.
Mr. Sanjay Kumar, Advocate.
Mr. Sadanand Roy, Advocate
For the State : Mr. Udai Shankar Singh, AC to G.A.-2.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)
2 31.01.2012In Cr.W.J.C. No.1248 of 2010 Vijay Kumar @ Bhola Yadav @ Vijay Yadav, Gaina Yadav @ Vijay Kumar, Nanhaque Yadav @ Nanhak Yadav @ Nanhak are petitioners while in Cr.W.J.C. No.1267 of 2010. Hari Yadav happens to be the petitioner. In both two writ petitions common question of law has been pleaded and raised, therefore with the consent of Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 2 learned counsels of both the parties, both have been heard analogously and is being disposed of by common order.
Brief facts of the case are independently dealt with:
(A) So far Cr.W.J.C. No.1248 of 2010 is concerned, it originate on the basis of MMCH (Magadh Medical College Hospital) P.S. Case No.12 of 1996 registered under Section 376(2)(g), 380, 450, 34 of the I.P.C. and 3(1)(xi)(xii) of SC ST (Prevention of Atrocities) Act and accordingly petitioners were tried and ultimately convicted and sentenced by First Additional Sessions Judge (Special Judge) vide judgment dated 18-08-1998, passed in Sessions Trial No.18/98. Then thereafter two appeals were filed before the Hon‟ble High Court vide Cr. Appeal No.1513 of 1998 as well as Cr. Appeal No.526 of 1998 and the same was dismissed vide judgment dated 11.03.2003.
The aforesaid dismissal, let institution of two Cr. Appeals 280 of 2004, 283 of 2004 before the Hon‟ble Supreme Court and the same was also dismissed on 21.11.2006.
Earlier, petitioners on account of crossing of their age of 16 years on the date of occurrence, by which accused were to be identified as juvenile as per the then existing Juvenile Justice Act, could not raised the plea of juvenility during course of trial, but subsequently as per amendment, now the Juvenile Justice Act given an opportunity to the petitioners to raise their plea of juvenility on account of being less than 18 years on the alleged date of occurrence. Consequent thereupon, prayer was made before Jail Superintendent, Central Jail, Gaya to refer the matter to Juvenile Justice Board for determination of age and for passing of appropriate order and accordingly, the Jail Superintendent, Central Jail, Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 3 Gaya referred the matter to Juvenile Justice Board vide letter no.3802 dated 14-09-2010. The Juvenile Justice Board returned back the matter vide letter no.210 dated 23-09-2010 with a direction to take proper permission from the court by which conviction was recorded. Then thereafter, the Jail Superintendent, Central Jail, Gaya vide letter no.3598 dated 25-09-2010 placed the matter before Special Judge, Gaya who vide letter no.397 dated 22.01.2010 communicated that as the judgment of conviction and sentence had already been confirmed by the Appellate Court, therefore, he is not competent to accede with the prayer. The above referred letter has been annexed as Annexure-3 and a prayer has been made to quash the same followed with passing of appropriate order in this regard.
(B) In Cr.W.J.C. No.1267 of 2010, petitioner Hari Yadav has been made an accused in Sherghati P.S. Case No.85 of 81 registered under Section 147, 148, 149, 323, 324, 325, 302 of the I.P.C. and was convicted by judgment dated 02.09.1991 in Session Trial No.253/85, 51/85, 12/91. Against the aforesaid judgment of conviction and sentence, Cr. Appeal No.341/91 was preferred on behalf of petitioner which was dismissed on 21.01.2004. Thereafter, Cr. Appeal No.1721/2007 was preferred before the Hon‟ble Supreme Court which was dismissed on 14.12.2007. It has been submitted that as the petitioner had already crossed the age of 16 years on the date of occurrence therefore no plea of juvenility was taken up. However, after repealing of old law (Act) by Juvenile Justice Act 2000, and subsequent amendment where under age of juvenile age of juvenile has been raised up to 18 years, and as per amended provision, a cause has arisen in favour of petitioner and so he prayed for determining him juvenile Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 4 and accordingly Jail Superintendent, Central Jail, Gaya referred the matter to Juvenile Justice Board vide letter no.3802 dated 14.9.2010. However the aforesaid matter was repulsed by the Juvenile Justice Board vide letter no.210 dated 23-09-2010 directing to place the matter before the court concerned from where judgment of conviction and sentence was recorded. Accordingly, the Jail Superintendent, Central Jail, Gaya referred the matter to Special Judge vide letter no.3956 dated 25-09-2010. The learned Special Judge communicated vide letter no.397 dated 22-11-2010 disclosing therein that as the conviction and sentence had already been confirmed by the superior court therefore he is not competent to adjudicate the matter afresh. This letter has been annexed with writ petition as Annexure-3 and a prayer has been made to quash the same as well as for passing proper order.
It has been submitted on behalf of the petitioners that learned Special Judge in both cases closing the chapter vide Annexure-3 happens to be bad in law and so its fit to be quashed. Also submitted that by amendment, special provision has been made where under the cases which have already been concluded in its finality should also be cared of and in case, conclusion is arrived at to be effect that the accused / convict was less than 18 years on the alleged date of occurrence, he was entitled for availing the liberty prescribed under Juvenile Justice Act, 2000 and for that specifically referred Section 7A of the Act. So, it has been pleaded that instead of communicating through Annexure-3 showing inability, incompetency to deal with the matter afresh, the learned Special Judge should have dealt with the matter and would have taken proper recourse as provided under law for ascertainment of claim of petitioners whether they Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 5 be declared juvenile or not. As such, the Annexure-3 is fit to be quashed followed with issuance of necessary guidelines to the learned lower court to determine the issue in hand.
At the other hand the learned A.C. to G.A.-2 refuted the submission and submitted that when petitioners on his own count failed to acknowledge themselves as a juvenile and did not plead up to final stage, then in that event petitioners are precluded to raise the plea. Also submitted that the then Children Act was substituted by Juvenile Justice Act, 1986 which was subsequently replaced by Juvenile Justice Act,2000 and so consuming such long period without raising any grievance during intermediary period for which the petitioners were expected to raise such plea, now they could not avail the plea raising in seldom manner and further have undergone substantial tenure under custody and if found, their plea will be considered by the remission Board at an appropriate stage. As such, submitted that the prayer of the petitioners are not at all tenable.
After amendment of the Act of the year 2005 this question has come up before the Hon‟ble Apex Court and the same was decided by the Constitutional Bench in the case of Pratap Singh vs. State of Jharkhand & Anr. reported in (2005) 3 SCC 551 by formulating following issues:-
A. Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/Competent Authority?
B. Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act and pending when the Act of 2000 was enforced with effect from 1.4.2001? The constitution Bench in the above case held that the benefit of juvenility cannot be extended to the person who has completed the 18 Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 6 years of age as on 1.4.2001 i.e. the date of enforcement of the Act. In the background of this judgment, the Legislature brought Amendment Act 33/2006 proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to the cases pending on 1.4.2001, where a juvenile, who was below 18 years of age at the time of commission of the offence, was involved. The explanation to Section 20 which was added in 2006 makes it clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (1) of Section 2, even if juvenile ceased to be a juvenile on or before 1.4.2001, when the Act came into force and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Board concerned for passing sentence in accordance with the provisions of the Act.
The aforesaid matter has again came for consideration in a case of Hari Ram vs. State of Rajasthan and Others, reported in (2009) 13 SCC 211.
10. After the judgment of the Constitution Bench in Pratap Singh the Hon‟ble Apex Court in the case of Hari Ram (supra) considered the above question of law in the light of Amendment Act 33 of 2006 in the provisions of the Act which substituted Section 2(1) to define a "juvenile in conflict with law" as a "juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence". By way of Amendment Act 33/2006, Section 7A was inserted which reads as follows: -
"7A. Procedure to be followed when claim of Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 7 juvenility is raised before any court. - (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect."
It is clear from the above provision, namely, Section 7A the claim of juvenility to be raised before any court at any stage, even after final disposal of the case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. Apart from the aforesaid provisions of the Act as amended, and the Juvenile Justice (Care and Protection of Children) Rules, 2007, (in short „the Rules‟) Rule 98, in particular, has to be read along with Section 20 of the Act as amended by the Amendment Act, 2006 which provides that even after disposal of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act i.e. 3 years. All the above relevant provisions including the Patna High Court CR. WJC No.1248 of 2010 (8) dt.01-02-2012 8 amended provisions of the Act and the Rules have been elaborately considered by the Court in Hari Ram.
The aforesaid decisions have again been dealt with in a case reported in 2011(4) Bihar Law Judgment SC 52 (Amit Singh vs. State of Maharashtra & Anr.) and the said view has been endoreced.
As such, Annexure-3 cannot be held to be in accordance with law. Furthermore, the learned Special Judge failed to construe that as per amended Act, a cause has arisen in favour of petitioner which was taken to be cared of and properly proceed with and answered in accordance with law.
Consequent thereupon, Annexure-3 of both the writ petitions are quashed. The learned lower court is directed to proceed and decide the matter afresh in accordance with law. Petitioners are directed to place their plea with cogent and reliable materials to substantiate the same. Consequent thereupon, both the sets of writ petitions are allowed.
(Aditya Kumar Trivedi, J.) PN