Uttarakhand High Court
Sushil Yadav (Male) Aged About 16 ... vs State Of Uttarakhand on 28 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Revision No. 114 of 2020
1. Sushil Yadav (male) aged about 16 years
S/o Shailendra Yadav, R/o Parsa Nepal.
Through his legal guardian/father Sh. Shailendra Yadav
R/o Parsa, Nepal.
2. Amit (male) aged about 16 years
S/o Gopal Singh, R/o 126 Rajpur P.S. Noida U.P.
Through its natural guardian/father Sh. Gopal Singh
R/o 126 Rajpur P.S. Noida, U.P.
......Appellants
-Versus-
State of Uttarakhand .......Respondent
Present:
Mr. Arvind Vashistha, the learned Senior Advocate assisted by
Mr. Hemant, the learned counsel for the appellants
Mr. J.S.Virk, the learned Dy. Advocate General and Mr. Rakesh
Joshi, learned Brief Holder for the State.
With
Criminal Revision No. 144 of 2020
Sarthak Arora aged about 19 years
S/o Shri Ganesh Das
R/o House No. 1047, Street No. 3, near Shishu Modal
School, Bal Singh Nagar Basti Jodhewal,Ludhiana
Punjab 141007. ......Appellant
-Versus-
State of Uttarakhand .......Respondent
Present:
Mr. Aditya Singh, the learned counsel for the appellants
Mr. J.S.Virk, the learned Dy. Advocate General and Mr. Rakesh
Joshi, learned Brief Holder for the State.
Coram: Sri S.K. Mishra, ACJ.
Sri N.S. Dhanik, J.
(Per: Sri S.K. Mishra)
Date of hearing and order
28.12.2021
1. Heard Mr. Arvind Vashistha, the learned Senior
Advocate assisted by Mr. Hemant, the learned counsel
appearing for the appellants in CRLR No. 114 of 2020 ,
Mr. J.S. Virk, the learned Dy. Advocate General and Mr.
Rakesh Joshi, learned Brief Holder appearing for the
State and Mr. Aditya Singh, the learned counsel appearing
for the appellant in CRLR No. 144 of 2020.
2. All three petitioners (revisionist herein) were juvenile
when the case was initiated. They allegedly committed
gang rape and initially the Juvenile Justice Board,
Dehradun, found the juveniles to be not guilty. Against
said order, an appeal was preferred by the State of
Uttarakhand bearing Criminal Appeal No. 226 of 2019.
The appeal was filed late but the delay condonation
petition was allowed and the matter was taken for
hearing. The learned Judge, FTC/ Special Judge (POCSO)/
Addl. District Judge/ Children's Court, Dehradun, allowed
the appeal on 03.02.2020 and set aside the acquittal of
the juveniles and held them to be in conflict with law for
the offence punishable under Section 376D of the Indian
Penal Code (hereinafter referred to the Penal Code for
brevity). They have been sent to be kept in the
observation home/children home for two years and six
months. Such order of reversing the acquittal has been
challenged in these revisions.
3. It is very fairly submitted by both the learned
counsel appearing for the juveniles that even if juveniles
are allowed to remain in the children home then period of
their detention come to an end on 07.01.2022,
11.01.2022 and 21.01.2022 respectively. They submit
that if they were adults their two years and six months
should have been reduced by virtue of the rules
prescribed under Rule 174 of the Remission System and
Premature Release of the U.P. Jail Manual. The same is
reads as follows:-
"174. Scale of ordinary remissions- Ordinary remissions
shall be awarded on the following scale:
(a) three days per month for thoroughly good conduct and
scrupulous attentions to all prison regulations;
(b) three days per month for industry and the due
performance of the prescribed daily task.
Explanation.- A convict who is unable to labour
through causes beyond his control such as his being in
court, in transit from one jail to another, in hospital or
in an invalid gang, shall be granted remission under clause
(A) on the scale earned by him during the previous
months if his conduct prior to and during the period in
question has been such as to entitle him to the grant
of such remission.
Such convict shall also be entitled to the grant of
remission under clause (b) on the scale earned by him
during that previous month, if he was working during that
period. If not, remission shall be awarded to him for a
period of such absence:
Provided also that if he is in a hospital or in an invalid
gang, no remission under clause (b) shall be granted
unless the Medical Officer certified that the convict's
absence from labour is due to causes beyond his control
and is in no way caused by any action of the convict
himself with a view to escape work or to get into or to
remain in hospital.
4. It is, however, contended by Mr. J.S. Virk, the
learned Dy. Advocate General for the State of
Uttarakhand that though the Uttar Pradesh Jail Manual
provides for the remissions in normal cases then no such
provision in the statute regarding remission of the orders
passed against juveniles.
5. The Juvenile Justice (Care and Protection of
Children) Act, 2015, (hereinafter referred as the Juvenile
Act ,for brevity) has been enacted to provide protection to
children. The Act was enacted in the year 2015 and
amended in the year 2018, 2019 and 2021. The Juvenile
Act has been enacted to provide an act to consolidate
and amend the law relating to children alleged and found
to be in conflict with law and children in need of care and
protection by catering to their basic needs through proper
care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the
adjudication and disposal of matters in the best interest
of children and for their rehabilitation through processes
provided, and institutions and bodies established,
thereunder and for matters connected therewith or
incidental thereto.
6. A reading of the Juvenile Act reveals that the United
Nations Convention on the Rights of Children, ratified by
India on 11th December 1992, requires the State Parties
to undertake all appropriate measures in case of a child
alleged as, or accused of, violating any penal law,
including (1) treatment of the child in a manner
consistent with the promotion of the child's sense of
dignity and worth (b) reinforcing the child's' respect for
the human rights and fundamental freedoms of others (c)
taking into account the child's age and the desirability of
promoting the child's reintegration and the child's
assuming a constructive role in society.
7. Thus, the Juvenile Act, is in fact, a benevolent piece
of legislation aimed at securing justice for the children.
The children are categorized into two by the Juvenile Act
viz., the child or children in conflict with law and children
in need of care and protection. Though, the second
category of the children does not necessarily mean that
they are also children in conflict with law but every child
is in conflict with law is also a child needs care and
protection.
8. In this case, these three juveniles, who were held to
be in conflict with law, namely, Sushil Yadav, Amit an
Sarthak Arora are in custody for more than two years
and five months and in our considered opinion they
should be released forthwith, in view of the facts of the
case and that they must have understood the rigour of
the law and reformed in the meantime.
9. The findings recorded by the learned Appellate Judge
vide its Judgment and order dated 03.02.2021 is
affirmed. The sentence of the revisionists/juveniles is
reduced to the period already undergone by them. The
Juvenile Justice Board, Dehradun, is directed to issue
release order in favour of the three juveniles or children
in conflict with law.
10. As far as question of remission of part of the
punishment is concerned, this Court is of the opinion that
since the International Community on the rights of the
children has passed resolution to make a law or amend
the existing law for reform of the children in conflict with
law and reintegration of the children in conflict with law in
the society it shall be appropriate on the part of the State
of the Uttarakhand to bring proper law in the shape of
proper notification of Rules extending the scope of
remission of children in conflict with law, in suitable cases.
11. Accordingly, we direct that the matter be considered
by the Chief Secretary, State of Uttarakhand, to take
appropriate steps for consideration of this issue by the
State of Uttarakhand either in its executive side or in the
legislative side.
12. With such observation both the revisions are
disposed of.
13. Urgent certified copy of the order be provided as per
rules. A free copy of this order be furnished to Sri
J.S.Virk, the learned Dy. Advocate General for onward
transmission and compliance.
(N.S. Dhanik) (S.K. Mishra)
Judge Acting Chief Justice
PV
