Prem Lata @ Praveen Sabbarwal vs State Of Himachal Pradesh And ...
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.W.P No. 19 of 2019 Reserved on 05.01.2021

.

Decided on: 22.02.2021

Prem Lata @ Praveen Sabbarwal ....Petitioner.

Versus

State of Himachal Pradesh and others ... Respondents. ................................................................................................

Coram

The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?1 Yes.

For the petitioner. : Mr. A.K. Sharma, Advocate.

For the respondents. : M/s. Hemant Vaid and Ashwani Sharma, Additional Advocates General.

(Through Video Conferencing)

Sureshwar Thakur, (J)

The petitioner, along with other co-accused, became tried

for charges drawn against them under Sections 302, 382, 404, read

with Section 201, and, under Section 120-B of the Indian Penal Code,

and also, all the afore, under a conclusive and binding verdict made by

the Hon'ble Supreme Court upon SLP (Crl.) No 1962-63 of 2009,

1Whether reporters of the local papers may be allowed to see the judgment?

decided on 1.8.2013, became convicted and sentenced for life

imprisonment.

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2. However, much belatedly from, the afore conclusive and

binding verdict of conviction and sentence, becoming pronounced on

1.8.2013, upon the petitioner along with the other co-convicts with

her, she rather in the year 2019, has preferred the extant petition

before this Court, (i) wherein she claims the benefit of Section 6, of,

the, Juvenile Justice (Care and Protection of Children) Act, 2015,

inasmuch, as she claims that when she incontemporaneity, vis-a-vis,

the commission, of, the, afore charged offences, hence was a juvenile,

and hence, was amenable for being put to trial before the Juvenile

Justice Board (in short 'JJB') concerned, (ii) and obviously, when she

was not amenable for being to put to trial, before the learned Sessions

Court concerned, (iii) and whereupon(s), she claims that the entire

trial which she faced before the learned Sessions Court concerned,

becoming declared to become, hence vitiated, (iv) and also

concomitantly, the afore binding and conclusive verdict made by the

Hon'ble Apex Court, upon her, along with the, other co-convicts,

being declared to be a nullity, and, hence being set aside vis-à-vis her.

3. She also through the extant petition claims that a

direction be made upon the respondents concerned, to grant, her the

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facility of parole.

4. The Principal Division Bench of this Court, on

9.12.2019, had made an order, wherethrough, a direction was

pronounced upon the Registrar (Judicial) to conduct an inquiry, vis-a-

vis, the date of birth of the petitioner. In pursuance to the afore order,

the Registrar (Judicial) has placed before this Court, an incisive

report, detailing therein the trite factum of the petitioner, rather in

contemporaneity, vis-a-vis, the commission of, the, afore offences,

being below 18 years. The afore conclusion is founded, upon,

certificate borne in Ext. PJ2/A.

5. Consequently, the learned counsel appearing for the writ

petitioner, has contended, with much vigor before this Court, for

constraining this Court, to grant the afore espoused reliefs, and, the

anchor of his afore submission, becomes rested, upon, verdicts made

by the Hon'ble Apex Court, respectively in Criminal Appeal No. 1175

of 2014, titled Raju Vs. The State of Haryana and in Criminal Appeal

No(s) 459 of 2018, titled Mahesh Vs. The State of Rajasthan and

others, (a) wherein it has become expostulated that the plea of

juvenility, of, the accused/convicts concerned, can be taken before the

Apex Court, even when the afore plea of purported juvenility, of, the

convict/accused concerned, remains un-raised, either before the

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Sessions Court or even before the High Court.

6. However, for the reasons to be assigned hereinafter, both

the afore verdicts, as become relied, upon by the petitioner, for

constraining this Court to grant the espoused reliefs, are inapplicable

to the facts at hand, (a) rather, the afore expostulated therein ratio

decidendi is distinguishable from the extantly prevailing factual

matrix, (b) inasmuch as, in both the verdicts (supra), rendered by the

Hon'ble Apex Court, Hon'ble Apex Court had become seized, with a

challenge being made therebefore, by the purported juvenile

concerned, against his/her inaptly becoming put to trial, vis-a-vis, the

charges concerned, before the Learned Sessions Court, and/or before

the High Court concerned, and, whereons, a verdict of conviction and

sentenced earlier thereto became recorded, upon him/her, and, also

during the course of the Hon'ble Apex Court, becoming seized of the

afore appeals, hence, the afore plea became raised therebefore,

reiterately de hors any plea of purported juvenility becoming earlier

thereto, remaining un-raised by him/her, (c) thereupon it became

expostulated therein, that yet before the Apex Court, any purported

juvenile, can meritworthily raise the afore plea, obviously even before

the Hon'ble Apex Court. Consequently, in both the verdicts (supra),

after the Hon'ble Apex Court, hence, analyzing the documentary

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evidence as became adduced before it, for therethrough, the purported

plea of juvenility, of, accused/convicts concerned, becoming strived to

become sustained, it upon construing, it to become well founded

thereon(s), hence, it proceeded to annul the verdict(s), of conviction

and sentence imposed, upon, the convict(s) concerned.

7. Be that as it may, the plea of purported juvenility, of, the

writ petitioner, though has come to be accepted in the report of the

Registrar (Judicial), yet thereons, the espoused plea(s) cannot become

vindicated by this Court, as their occurs, the complete contradiction

inter se the factual matrix prevailing in verdicts (supra), vis a vis, the

facts existing at hand, (b) and the afore inter se contradiction becomes

sparked from, (c) in the verdicts (supra), the juveniles concerned,

raising hence, before Hon'ble Apex Court, the plea of juvenility,

rather obviously during the pendency of the apposite lis before the

Hon'ble Apex Court, (d) whereas in dire contradiction therefrom, the

plea of juvenility has remained unraised, during the pendency of the

apposite lis before the Hon'ble Apex Court, rather has come to be

raised, only after, a, conclusive and binding verdict becoming made

by the Hon'ble Apex Court upon SLP (Crl.) No 1962-63 of 2009

decided on 1.8.2013.

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8. The sequel of the afore apparent inter se contradiction,

inter se, the facts existing in verdicts supra, and the facts at hand,

necessarily disable(s), the writ petitioner, to contend, that the afore

expostulated legal principles as become cast(s), in verdicts supra,

becoming, also amenable, for being leveraged, vis-a-vis, the writ

petitioner, as thereupon the binding and conclusive verdict recorded,

upon, the, writ petitioner, by the Hon'ble Apex Court, would suffer

the un-befitting legal consequence qua, hence, it becoming untenably

annulled and set aside.

9. In aftermath, this Court, does not deem fit, and

appropriate to proceed to grant the espoused reliefs, to the writ

petitioner, inasmuch, as it appertains to the report of

Registrar(Judicial), becoming accepted, and this Court, proceeding to

inaptly nullify the binding and conclusive verdict, (supra), as made by

the Hon'ble Apex Court. However, remedy, if any, available to the

writ petitioner, is only through hers casting an apposite review

petition, before the Hon'ble Apex Court, wherethrough, she may

strive for seeking a review, of, the afore verdict made by the Hon'ble

Apex Court.

10. Insofar as the relief, as claimed in the writ petition, for

the petitioner, being ordered to be released, on parole, is concerned,

.

even the afore relief, can be recoursed before this Court, only when

prior thereto, the authorities concerned, upon receiving, an application

for the afore purpose, declining the relief of parole, to the writ

petitioner. However, since prior to the extant re-coursing by the writ

petitioner, she has not made any recourse, qua therewith, before the

authority concerned, hence, it is open to the writ petitioner to make a

prayer before the authorities concerned, for hers being released on

parole, and, if a verdict adversarial is made thereon, by the authorities

concerned, thereupon, the writ petitioner is at liberty to recourse an

appropriate remedy, as contemplated under law.

11. In the above terms, the criminal writ petition stands

disposed of, so also pending miscellaneous applications, if any. No

costs.

(Sureshwar Thakur) Judge

(Chander Bhusan Barowalia) Judge 22nd February, 2021 (Guleria)