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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUNITA AGARWAL, PRADEEP KUMAR SRIVASTAVA, JJ.
Kiranpal @ Kinna – Petitioner
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 1160 of 2019
Decided On : 10-06-2021
Penal Code, 1860 – Sections 147, 148, 302/149, 307/149, 323/149 – Unlawful assembly – Murder/Attempt to murder – Writ of habeas corpus – Detention in jail – Seeking release of petitioner – Fundamental rights guaranteed under Article 21 of the Constitution of India – Declaration of petitioner as juvenile at the time of incidence – Petitioner was a minor at the time of the incident. Since the father of the petitioner was also one of the accused in the said criminal case, there was no one to pursue the matter except the illiterate mother of the petitioner. As a result of it, defence of juvenility of the petitioner could not be taken at the relevant point of time -(i) Whether the writ of Habeas Corpus is an appropriate remedy and this Court can release the petitioner treating his detention or confinement in jail without the authority of law?; (ii) whether the Juvenile Justice Board, Bulandshahr had adopted the prescribed procedure while declaring the petitioner juvenile by the order dated 19.9.2018 ?; (iii) whether the petitioner is entitled to the benefits of the Juvenile Justice Act in view of the said order?
Finding of the Court:
Trial court to first of all look into the question of juvenility, as claimed by the appellants herein and after disposal of the claim made by the appellants that they were minors on the date of the alleged incident, it shall proceed with the trial. In the event the trial court comes to a finding that the appellants were minors at the time of commission of the offence, it shall immediately send them to the Juvenile Justice Board concerned for considering their cases in accordance with the provisions of the 2000 Act – statutory provisions in the matter of determination of age of the person brought before the Board, lays down the manner of enquiry which has to be done strictly in accordance with the provisions mentioned therein by the Court before whom the matter is brought. The credibility or accountability of the documents would depend on the fact and circumstances of each case and no strait-jacket formula can be prescribed as to how and when the Court can record its prima facie satisfaction or reject the claim of juvenility at the stage of initiation of inquiry. However, once enquiry is initiated, the evidence brought before the Court have to be appreciated to ascertain the age of the person who claims to be a juvenile. The claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improper claim of juvenility must be rejected – Three questions posed by us in this matter are answered in ''Negative'. The writ of habeas corpus cannot be issued in the instant case to release the petitioner as his detention in the District Jail, Agra cannot be said to be illegal. No other instance of violation of fundamental rights of the petitioner (a prisoner in jail) could be placed - Order of determination of age of the petitioner passed by the Juvenile Justice Board, Bulandshahr is not sustainable in the eye of law. The Juvenile Justice Board had committed a grave error of law in not following the proper procedure in the matter of determination of age of the petitioner keeping in mind the object of the benevolent legislation namely the Juvenile Justice Act, in as much as, the appreciation of evidence was made in a cursory manner.
Result: Petition dismissed
JUDGMENT :
PRADEEP KUMAR SRIVASTAVA, J.
1. Heard Sri Santosh Yadav learned counsel for the petitioner and Sri D.P.S Chauhan learned Additional Advocate General for the State respondents.
2. The instant petition has been filed for issuance of a writ in the nature of habeas corpus for release of the petitioner namely Kiranpal @ Kinna from the District Jail Agra, on the plea that his detention in jail is contrary to the fundamental rights guaranteed under Article 21 of the Constitution of India.
3. It is contended that vide order dated 19.9.2018, the Juvenile Justice Board, Bulandshahr had declared the petitioner juvenile as he was found to be 17 years, 9 months and 25 days on the date of the incident.
The brief facts of the case relevant to appreciate the plea of the petitioner are that a first information report dated 26.3.2000 was lodged against the petitioner and 13 others co-accused persons under Sections 147, 148, 302/149, 307/149, 323/149 IPC and 7th Criminal Law Amendment Act, registered as Case Crime No. 33 of 2000 at the Police Station Khanpur, District Bulandshahr. The time and date of the occurrence of the incident as per the said report was 9.30 AM on 26.3.2000.
It is contended that the petitioner was a minor at the time of the incident. Since the father of the petitioner was also one of the accused in the said criminal case, there was no one to pursue the matter except the illiterate mother of the petitioner. As a result of it, defence of juvenility of the petitioner could not be taken at the relevant point of time.
The investigating officer had submitted charge sheet and trial was commenced but neither the investigating agency nor the trial court made any effort on its own to find out the age of the petitioner at any point of time, during the course of the investigation or trial of the petitioner. The petitioner along with co-accused was convicted and sentenced vide judgment and order dated 29.9.2003 passed in the Sessions Trial No. 884 of 2000 for life imprisonment for the charges under section 302 read with Section 149 IPC; for seven years rigorous imprisonment for the charges under Section 307 read with Section 149 IPC; and six months rigorous imprisonment for the charges under Section 323 read with Section 149 IPC. All the sentences were to run concurrently. Aggrieved, the petitioner along with other co-accused filed Criminal Appeal No. 5009 of 2003, which was also dismissed vide judgment and order dated 27.3.2013 passed by this Court.
It is stated that on an application dated 21.3.2018 filed by the mother of the petitioner before the Juvenile Justice Board, Bulandshahr that the petitioner was minor at the time of the incident and he was entitled for the benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act, 2000") as amended from time to time, the Juvenile Justice Board, Bulandshahr vide order dated 19.9.2018 had declared the petitioner being 17 years, 9 months and 25 days of age on the date of the incident. It is then contended that the order of the Juvenile Justice Board, Bulandshahr had never been challenged and hence has attained finality.
4. With the above facts, it is vehemently contended by Sri Santosh Yadav learned counsel for the petitioner that with the declaration of juvenility of the petitioner, he cannot be retained in jail and this Court has to issue a writ of habeas corpus for release of the petitioner declaring his detention in the District Jail, Agra as illegal. It is contended that even if, the petitioner had been found to be guilty of the offence under Section 302 read with Section 149 IPC, his detention had exceeded the maximum period provided in Section 15 of the Juvenile Justice Act, 2000 and as such, the detention of the petitioner in jail amounts to violation of Article 21 of the Constitution of India.
The submission is that the Juvenile Justice Act, 2000 is a benevolent legislation and based on the decision of the Apex Court in such mat
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