Karesh Pal @ Billoo & Others vs State Of U.P. ??????
2015 Latest Caselaw 3185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 10
 
Criminal Misc. Application No.304015 of 2015 filed in
 
Case :- CRIMINAL APPEAL No. - 155 of 2003
 

 
Appellant :- Karesh Pal @ Billoo & Others
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Apul Mishra
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vipin Sinha,J.

The applicant/appellant was convicted and sentenced by the trial court vide judgment dated 19.12.2002 for an offence under Sections 376 (2) (g), 323/149 of I.P.C. The Criminal Appeal filed before this Court in which this application has been filed was dismissed on 05.10.2007. A Special Leave Petition was filed against the judgment dated 5.10.2007. The Apex Court dismissed the same on 28.3.2008. Thus the conviction and sentenced imposed stands confirmed upto Apex Court.

The applicant, taking aid of the order passed in a Public Interest Litigation, being Criminal P.I.L. No.855 of 2012 wherein directions have been issued on 24.5.2012 to the District Judges throughout the State of U.P. and to the Legal Services Authorities to initiate proceedings before the Juvenile Justice Board to determine the age of such prisoners who are serving out sentence and were juvenile on the date of the commission of offence has filed this application seeking the benefits under Section 7A of The Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 Rules framed thereunder (herein after referred as Act 2000 and Rules 2007 respectively).

The applicant does not appear to have claimed any juvenility either during the trial or in appeal before this Court or before the Apex Court.

After the orders were passed in the aforesaid Criminal P.I.L. on 24.5.2012 and an exercise was undertaken accordingly, the case of the applicant also came to be examined by the Juvenile Justice Board, Agra. The applicant, on the basis of his educational qualification certificates placed before the Juvenile Justice Board, was declared to be juvenile as on the date of the commission of the offence. The order of the Juvenile Justice Board, however, fell short of any direction for release. Upon obtaining the said order from the Juvenile Justice Board dated 4.7.2013, the applicant - Praveen alias Tailor made an application before the Apex Court under Section 7A (1) proviso of the Act 2000. The said application was permitted to be withdrawn with liberty to the applicant to approach "the appropriate court for appropriate relief".

The applicant thereafter filed an application before the Trial court for his release, in terms of the said directions issued by the Apex Court. The court below namely the Addl. Sessions Judge, Court No.6, Meerut, passed orders on 26.5.2015 observing that the Apex Court has not issued any directions to the said Court to entertain any such application. Therefore, it was not possible for the Court to proceed further. It was also observed by the learned Addl. Sessions Judge that the conviction of the applicant has been confirmed by the High Court and by the Apex Court. In such a situation the application was not maintainable and was, accordingly, dismissed as no relief could be granted by the trial court.

On the basis of the said order, the present application has been filed making a prayer that the sentence and conviction be set aside and the applicant be released on bail under Section 7A of the Act, 2000. The prayer clause does not appear to be happily worded inasmuch as there is no occasion now for this Court to set aside the judgment and grant bail to the applicant.

The issue is as to whether the applicant can be released by this Court by entertaining this application at this stage.

The Act 2000 under Section 7A makes a provision for review of such cases where a juvenile is detained against law even in a disposed off case. Rule 98 of Rules, 2007, as framed by the Central Government makes a provision for review of such cases in disposed off matters either by the Juvenile Justice Board or by the State Government as the case may be on appraisal of such fact. The said authorities are empowered to pass appropriate orders for immediate release of the juveniles.

The application made by the applicant before the Apex Court appears to have been dismissed. It is possible that it is for the said reason that the S.L.P. was withdrawn.

Section 7A of the Act, 2000 as well as Rule 98 of the Rules, 2007 read as under:-

"Section 7A. Procedure to be followed when claim of 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 recognised 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."

"Rule 98. Disposed off cases of juveniles in conflict with law.-- The State Government or as the case may be the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, determine his juvenility in terms of the provisions contained in the Act and rule 12 of these rules and pass an appropriate order in the interest of the juvenile in conflict with law under section 64 of the Act, for the immediate release of the juvenile in conflict with law whose period of detention or imprisonment has exceeded the maximum period provided in section 15 of the said Act."

Having examined the provisions of Section 7 A of Act 2000 and the Rule 98 of the Rules 2007, we are of the considered opinion, in the facts of the case, that the appropriate remedy available to the appellant is to approach the Juvenile Justice Board / State Government for appropriate order being made in the matter of his release if he has been confined to imprisonment exceeding the maximum period provided under Section 15 of the Act, 2000. The application under Section 7A of the Act 2000, as presented in the appeal which stood finally decided under the judgment and order of this Court dated 05.10.2007, appears to be wholly misconceived.

The application is dismissed with liberty to the petitioner to seek his remedy accordingly.

This order is however subject to the appeal, if any, filed against the order of the Juvenile Justice Board declaring the applicant to be a juvenile on the date of incident.

Order Date :- 14.10.2015

YK