Allahabad High Court
Gyanendra vs State Of U.P.Thru.Principal ... on 8 July, 2019
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- MISC. SINGLE No. - 405 of 2005
Petitioner :- Gyanendra
Respondent :- State Of U.P.Thru.Principal Secy.Home Deptt.Civil Secretaria
Counsel for Petitioner :- Rishad Murtaza,Pradyumn Shukla,Ran Vijay Singh
Counsel for Respondent :- Govt.Advocate,D.R.Singh Yadav,L.M.Singh
Hon'ble Chandra Dhari Singh,J.
1. Heard learned counsel for the petitioner, learned Additional Government Advocate, learned counsel for opposite party no.3 and perused the record.
2. Order under challenge is the order dated 20.01.2005 whereby Special Judge( Gangsters Act), Lucknow has held the accused as juvenile but refused to refer the matter to Juvenile Justice Board in view of Section 7 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986.
3. Learned counsel for the petitioner submits that once the learned court below held that the petitioner is juvenile, then in view of the provisions of Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child can be held.
4. Learned counsel for opposite party no.4 has placed reliance upon Section 12 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 wherein it is provided that the trial under the Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance.
5. So far as the provisions of Section 12 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 are concerned, there is provision of precedence over the trial of any other case against the accused in any other court which is not a Special Court but the Act nowhere supersedes the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015, which is a special enactment having specific procedure prescribed under the Act.
6. Learned counsel for opposite party no.3 has placed reliance upon a decision of Hon'ble the Supreme Court in Dharmendra Kirthal v. State of Uttar Pradesh and another reported in (2013) 8 Supreme Court Cases 368 wherein vires of Section 12 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 was challenged which was negatived by the apex court.
7. Having gone through the impugned order and the aforesaid provisions, it is absolutely clear that once the petitioner was declared as juvenile by learned Special Court(Gangsters Act), then he cannot be tried along with other persons who are not covered under the Juvenile Justice (Care and Protection of Children) Act, 2015.
8. In view of the provisions of Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2015 (old Section 21), learned Special Judge (Gangsters Act) was required to send the case of juvenile-petitioner to the Juvenile Justice Board to deal with in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
9. Having regard to the above facts and circumstance, the impugned order passed by the learned court below is bad in law and is liable to be set aside.
10. Accordingly, the petition is allowed and the impugned order dated 20.01.2005 passed by the court below is hereby set aside. Learned court below is directed to deal the matter of the petitioner in accordance with Juvenile Justice (Care and Protection of Children) Act, 2015 and the observations made hereinabove.
Learned Board shall expedite the case since it is a matter of year 2003.
Order Date :- 8.7.2019
VNP/-
