Back
2012 Supreme(P&H) 1197
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Paramjeet Singh
Crl.W.P. No. 1971 of 2011(O&M)
Gurdarshan Singh
v.
State of Punjab & Anr.
{Decided on 27/09/2012}
For the Petitioner:Mr. Deepak Bhardwaj, Advocate.
For the Respondent: Mr. J.S. Bhullar, AAG, Punjab.
Headnote:Habeas Corpus--Habeas corpus is not an ordinary criminal proceeding process, rather, it amounts to a collateral attack challenging the validity of conviction or sentence under ordinary procedure of law.
Juvenile Justice--Even after disposal of cases of juveniles in conflict with law, the State Government or the Board can, either suo motu or on an application made for the purpose, review the case of juvenile, determine the juvenility and pass an appropriate order for immediate release of the juvenile whose period of detention has exceeded the maximum period of 3 years.
(A) Juvenile Justice (Care and Protection of Children) Act, 2000, Ss.7-A, 16 & 15--Rape--Juvenile offender--But accused was tried under the law as applicable to adult accused--Plea of juvenile neither raised at trial nor at appeal--Accused established to be juvenile on date of commission of offence--Trial of petitioner was unjust, unconstitutional and caused prejudice to rights of petitioner--Detention can be of maximum 3 years--Accused has undergone actual period of sentence of about 1 year and 8 months--At present age of 35 years, not conducive to send him to special home--Conviction maintained--Sentence quashed--Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3)--Indian Penal Code, 1860, Ss.376 & 366--Constitution of Indian, Art.226. (Para 27.1)
(B) Juvenile Justice (Care and Protection of Children) Act, 2000, Ss. 7-A, 16 & 15--Habeas Corpus--Habeas corpus is not an ordinary criminal proceeding process, rather, it amounts to a collateral attack challenging the validity of conviction or sentence under ordinary procedure of law--There is no constitutional right to appeal, only statutes create the right to appeal--The habeas corpus review can be used to testing the unlawfulness of the imprisonment as an indirect challenge to the sentence--Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3)--Indian Penal Code, 1860, Ss.376 & 366--Constitution of India, 1950, Art.226. (Para 27)
(C) Juvenile Justice (Care and Protection of Children) Act, 2000, Ss. 7-A, 16 & 15--Trial of Juvenile offender--Procedure explained--Claim of juvenility can 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--Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3)--Indian Penal Code, 1860, Ss.376 & 366--Constitution of India, 1950, Art.226. (Para 21)
(D) Juvenile Justice (Care and Protection of Children) Act, 2000. Ss. 7-A, 16 & 15--Even after disposal of cases of juveniles in conflict with law, the State Government or the Board can, 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 has exceeded the maximum period provided in Section 15 of the Act i.e. 3 years--Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3)--Indian Penal Code, 1860, Ss.376 & 366--Constitution of India, 1950, Art.226. (Para 21)
(E) Constitution of India, 1950, Arts.20 & 21--Protection is respect of certain offences--Scope of--Explained--The expression 'law in force' in Article 20 refers to the law factually in operation and applicable to a particular case at the time when offence was committed and expression 'penalty greater than that which might have been inflicted' in the Article 20 means a person may be subjected by the law which is in force at the time when he commits offence for which he is being punished--The sentence imposable on the date of commission of offence has to determine the sentence imposable on completion of trial--In the Article 21 words 'except according to procedure established by law' are very significant--The word 'law' has been used in the sense of law enacted by the legislature--Hence expression 'procedure established by law' in this Article means the procedure prescribed by enacted law of the State. (Para 16)
Mr. Paramjeet Singh, J.: - The Prayer in Criminal Writ Petition: The instant criminal writ petition has been filed by the petitioner under Article 226 of the Constitution of India praying for issuance of an appropriate writ in the nature of habeas corpus directing the respondents to release him from District Jail, Roopnagar forthwith as the detention is contrary to the fundamental rights guaranteed under Article 21 of the Constitution of India and the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the Act’).
The facts :
2. The matrix of this case, bereft of unnecessary details is that petitioner along with Balkar Singh and Sewa Singh was named in FIR No 04 dated 07.01.1990 under Sections 376/354/366/34 IPC registered at Police Station Kharar.
3. The Investigating Officer arrested the accused persons, namely, Balkar Singh, Sewa Singh and Gurdarshan Singh (petitioner herein). After trial, the learned Sessions Judge, Roopnagar, vide order dated 23.10.1990 held all the three accused to be guilty of various offences punishable under Sections 376, 366, 354 read with Section 34 IPC and sentenced each of them to suffer various types of imprisonments under different Sections. Petitioner was sentenced under Section 366 IPC for 2 years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for six months and also under Section 376 IPC to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo RI for one year.
4. Against the abovesaid judgment, all the three accused filed an appeal before this Court. This Court, by judgment dated 11.01.2008, allowed the appeal qua Balkar Singh and Sewa Singh and acquitted them, however dismissed the appeal qua petitioner but reduced his sentence from 5 years to 3 years.
5. Learned counsel for the petitioner states that no special leave petition was preferred by the petitioner in the Hon’ble Supreme Court of India. Hence, above judgment of this Court has become final.
Contentions of the Parties
5A. I have heard the learned counsel for the petitioner and the learned counsel for the State.
6. The learned counsel for the petitioner contends that the petitioner was juvenile at the time of the alleged offence and therefore, he could have been tried according to provisions of “the Act” and consequently, only by the Juvenile Justice Board (in short ‘the Board’).
7. The learned counsel for the petitioner further contends that the petitioner had not completed 18 years of age as on the date of commission of the offence and even on the date of FIR i.e. 07.01.1990, though he had completed 18 years as on 01.04.2001 i.e. the date of implementation of the Act. According to Amending Act, 2006 the benefit of juvenility should be extended to the petitioner. Further contended that the petitioner is entitled to get the benefit of the amended Act even at this stage after his conviction and when sentence order has become final. Learned counsel for the petitioner relied upon the judgments of the Hon’ble Supreme Court in the cases of Hari Ram v. State of Rajasthan and Others, [2009(4) Law Herald (SC) 2210] : (2009)13 SCC 211, and Dharambir v. State (NCT of Delhi) and another, [2010(3) Law Herald (SC) 1942] : 2010(2) RCR (Criminal) 773, and contended that legal position has been settled in the above said judgments, whereby Hon’ble Supreme Court gave effect to the Proviso and the Explanation to Sections 20 and 7A of the Act which were introduced by the above said Amending Act, and made the provisions of the Act applicable with retrospective effect.
8. Learned State counsel has vehemently opposed the contentions raised by the petitioner and submitted that once the order of conviction and sentence has become final, this Court has no jurisdiction under Article 226 of the Constitution of India to modify the order of sentence. The petitioner should have filed Special Le
