Allahabad High Court
Subhash And Another vs State Of U.P. on 22 August, 2014
Bench: Arun Tandon, Akhtar Husain Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- CRIMINAL APPEAL No. - 1741A of 1990
Appellant :- Subhash And Another
Respondent :- State Of U.P.
Counsel for Appellant :- V.P.Pathak,B.N.Pathak,D.S.P. Singh
Counsel for Respondent :- D.G.A.,H.K. Sharma,K.K. Sharma,M.K.Sharma
Hon'ble Arun Tandon,J.
Hon'ble Akhtar Husain Khan,J.
Appellant no.2 Bharat has been arrested and has been produced before this Court by Head Constables Sarfaraj Ahmad and three others.
Shri B.N. Pathak has made an application for bail on behalf of appellant no.2 Bharat. The court has been assured that the matter shall be argued on the next date and no further adjournment shall be prayed for.
In view of what has been recorded above, we provide that appellant no.2 Bharat may be released on bail on same terms and conditions on which he was granted bail under the order dated 10.9.1990. His future presence is exempted unless directed otherwise.
An issue has cropped up during the hearing of the appeal namely that if appellant no.1 Subhash is found to be juvenile on the date of incident as per his report dated 24.9.2007 then in view of judgment of the Apex Court in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh reported in 2012 (9) S.C.C. 750, Subhash is required to be placed before the Juvenile Justice Board for being awarding appropriate sentence if the order of conviction is maintained by the High Court.
We find that Section 15(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000 here in after referred to as Act 2000 provides that one of punishment which can be imposed is an order directing the juvenile to be sent to a special home for a period of three years. Special home has been defined in section 2(e) of Act 2000 as an institution established by a State Government or by voluntary organization and certified by that Government. Section 9 of Act 2000 requires the State Government, for reception and rehabilitation of juvenile in conflict with law (person like Subhash) being sent to special home certified for the purpose and Section 9(4) provides for the classification of separation home for juvenile in conflict with law on the basis of age and the nature of offences committed by them and his mental and physical status.
It is therefore, necessary to ascertain as to whether the State Government has demarcated any special home for convicts like Subhash, who at the time of the incident was below 18 years of age, but today when the appeal is being heard by this Court is more than 30 years in age. Would it be safe for such convict to be put in the same house where minor juvenile are placed for the purpose of the achieving object of Juvenile Justice (Care and Protection of Children) Act, 2000.
It is desirable that the Advocate General of the State Government may responsed to query, by means of an affidavit of Secretary, disclosing the special homes which may have been demarcated for convicts like (Subhash). Affidavit may be filed by 8.9.2014 when the matter shall be listed for further hearing.
List on 8.9.2014.
Office is directed to issue a copy of this order to the learned A.G.A. for necessary compliance by 26.9.2014.
Order Date :- 22.8.2014/RU
