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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

1. 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

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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.  

2. 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

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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.

3. 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.   

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4. 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

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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)

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The same view was followed in  Hakim v. State, (2014)

13 SCC 427, and  Lakhan Lal v. State of Bihar,  (2011) 2

SCC 251.

5. 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.