1. The writ application under Articles 226 and 227 of the Constitution of India is for a direction to release the petitioner a convict and serving a sentence of life imprisonment for an offence under Section 302 on account of committing the murder of one Anil Kumar Gupta on 19th of October 1988 at Treasury Chowk in Gopalganj Town within the district of Gopalganj.
2. The only grounds for release is that on the date of the commission of the offence, the petitioner was a juvenile for being aged about 14 years, as per the date of his birth i.e. 05.03.1974 . The further prayer of the petitioner is for issuance of appropriate writ quashing the order dated 06.10.2010, passed by the Justice Juvenile Board , Gopalganj in JJB Cr. Misc. 1 of 2010 as contained in Annexure- 6, whereby the claim for re-determination of his age in order to claim the benefit of juvenility was rejected.
3. The relevant brief facts are given below :- On 19th of October 1988, at about 9.30. p.m. a first information was lodged vide Gopalganj P.S. Case No. 206 of 1988 under Sections 147, 148, 149, 302 of the Indian Penal Code against the petitioner and his associates allegedly for causing the murder of one Anil Kumar Gupta.
4. The petitioner and his associates were tried for committing the said murder vide Sessions Trial No. 15/1985/105/2001. During the trial, petitioner raised the claim of his juvenility, however, trial court by its order dated 29th of January 1993, rejected the claim and held that the petitioner was not a juvenile on the date of occurrence. The said order was assailed by the petitioner in this court vide Criminal Miscellaneous No. 4959 of 1993. The aforesaid order dated 29.01.1993 was set aside and directing the trial court to get ascertained the age of the petitioner by the Medical Board.
5. The trial court directed the petitioner to present himself before the Medical Board at Patna Medical College Hospital on 29th of June 1995 alongwith his lawyer. The petitioner was produced before the Medical Board , however, his lawyer did not appear and as such, Medical Board did not give any information with respect to the age of the petitioner. The trial court accordingly held the petitioner as not a juvenile vide its order dated 26.07.1995 . The petitioner did not challenge/assail the aforesaid order and faced the trial. The prosecution witnesses were examined and cross-examined.
6. The trial court on conclusion of the hearing held the charges under Section 302 of the Indian Penal Code established against the petitioner and accordingly convicted him for the said offence. However, considering the submissions of the counsel for the petitioner on the question of sentences that the petitioner was of immature age on the date of the commission of the offence, the trial court sentenced the petitioner with imprisonment of life as per its judgement and order dated 13.08.2002 and 16.08.2002 respectively. The petitioner against his conviction preferred a Criminal Appeal No. 198 of 2002 (Division Bench) as contained in Annexure- 4.
7. In the said appeal besides assailing the conviction on other grounds, petitioner specifically raised the plea of juvenility on the ground that the age of the petitioner as per the certificate Bihar School Examination Board, Patna (Exb. -A) was 5th of March 1974 and as such, petitioner was juvenile on the date of occurrence. During the hearing of the appeal, the plea of juvenility was seriously raised and contested by the State as would be appearing from paragraphs 7 and 8 of the judgment of the aforesaid criminal appeal. The Appellate Court considered the plea of juvenility as claimed by the petitioner and disposed of the issue of juvenility against the petitioner vide paragraph – 9 of the judgment.
8. The hearing of the aforesaid appeal proceeded and upon hearing on merits the appeal was dismissed as per the judgment dated 3rd of August 2007 (Annexure - 3). The petitioner assailed the said judgment of Criminal Appeal no. 198 of 2002 in the Hon'ble Supreme Court vide Special Leave to Appeal (Cr.) No. 3547 of 2008). In the said Special Leave Petition plea of juvenility was again raised however, upon hearing the S.L.P. was dismissed by order dated 29th of August 2008 vide Annexure- 4.
9. It further appears that the petitioner thereafter, filed a petition vide Annexure- 5 before the Juvenile Justice Board , Gopalganj purported to be an application under Rule 98 read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 read with Sections 7A, 15 and 64 of the Juvenile Justice (Care and Protection of Children), Act 2000 (hereinafter referred to as the 'Act' . The said petition upon consideration was rejected as per the impugned order dated 06.10.2008 as contained in Annexure- 6. The Board upon discussing elaborately the issue of juvenility found that the question of juvenility was raised by the petitioner in the trial court which was not accepted and the petitioner faced the trial without any objection on his part. In the criminal appeal in question against his conviction the claim of juvenility was again raised which upon consideration, the Appellant Court dismissed the claim of juvenility and proceeded with the hearing of the appeal of the petitioner.
10. The appeal was dismissed as aforesaid which was assailed before the Hon'ble Apex Court vide S.L.P. No. 3547 of 2008 raising the plea of juvenility which was, however, also dismissed by order dated 29.08.2008. The Board accordingly held that the plea of juvenility was well contested and not allowed at all the stages i.e. Trial Court, Appellate Court as also before the Supreme Court and as such, rejected the prayer as per the impugned order (Annexure-6). Petitioner has now filed the present Criminal Writ Application for quashing of the order of the Justice Juvenile Board, as contained in Annexure- 6.
11. Mr. Manan Kumar Mishra, Senior Counsel appearing for the petitioner submits that the Justice Juvenile Board committed serious error of law while rejecting the claim of the petitioner to re-consider the age of the petitioner since he was juvenile under the old Act of 1986 as also under the new Act of 2000 which came into effect on 1st of April 2001 read with the Amending Act 2006 which came into force with effect from 22.08.2006. It is further submitted that petitioner filed an application under the provisions of Rule 98 read with Rule 12 of Justice Juvenile (Care and Protection of Children) Rules 2007, as also in terms of the provision of Section 64 of the Act, 2000. It is accordingly submitted that notwithstanding the issue was raised and considered by the Trial Court rejecting the claim of juvenility convicting the petitioner as also the rejection the claim of juvenility as well as dismissal of the Special Leave Petition before the Hon'ble Supreme Court raising the claim of juvenility, the Board was obliged in law to reconsider the matter which was however rejected on consideration by order dated 06.10.2010, the order under challenge.
12. Learned counsel for the petitioner in support of his submissions has relied upon the various decisions of the Apex Court as also of this court in the case of Ram Suresh Singh Versus Prabhat Singh, (2009) 6 SCC 681, Dharambir Versus State (NCT of Delhi), (2010) 5 SCC 344, Mohan Mali Versus State of M.P., (2010) 6 SCC 669, Lakhan Lal Versus State of Bihar, (2011) 2 SCC 251, Bhim Versus State of West Bengal, (2011) 1 BBCJ IV-248 Murari Yadav Versus State of Bihar, 2010 (1) PLJR 466. Learned counsel for the State submits that the issue of juvenility was considered by the Trial Court in Sessions Trial No. 13/1989/105/2001 as also in the Criminal Appeal vide Criminal Appeal No. 98 of 2002 (Division Bench) filed by the petitioner against his conviction (Annexure- 3).
13. The petitioner assailed the judgment and again raised the claim of juvenility in the Special Leave Petition vide Criminal Appeal No. 3547 of 2008 against the judgment in Criminal Appeal No. 198 of 2002. The Special Leave Petition upon hearing was dismissed as per order dated 29th of August 2008 and as such, the claim of juvenility raised by the petitioner at all the stages decided against the petitioner. It is accordingly submitted that the impugned order dated 06.10.2010 passed by the Board rejecting the prayer of the petitioner to re-decide the claim of juvenility was rightly rejected.
14. Before considering the rival submissions of the parties on merits, the decisions cited on behalf of the petitioner are being considered. The facts in the aforesaid decisions are different and as such, none of the above decisions cited by the learned counsel for the petitioner are of any help in support of his case for the reason that since in those cases, the matter of juvenility was raised and the question fell for consideration was as to whether as on the date of the commission of the offence the petitioners/appellants of those above cases were juvenile either under the Old Act of 1986 or the New Act of 2000. Such plea was raised by the petitioner concerned of the said case either at the trial or at the subsequent stage. The said plea was considered and necessary orders were passed for determination of the age of the claimants.
15. In the case in hand, the facts are different. Here, the plea of juvenility was raised in the trial court, which was not accepted. Later, the plea of juvenility was also raised before the Division Bench while hearing the criminal appeal against the conviction. The Court considered the plea and for the reasons recorded did not accept the claim of juvenility. The petitioner against the judgment/order in his appeal filed special leave petition before the Hon’ble Supreme Court and the plea of juvenility was again raised in various paragraphs of the S.L.P. The Hon’ble Supreme Court, however, upon hearing did not grant leave and consequently dismissed the special leave petition, as referred to above. Therefore, here it is not a case that the juvenility was raised at a subsequent stage and accepted but it is a case in which the plea of juvenility was raised but not accepted for the reasons recorded.
16. Considering the submissions of the parties, it would appear that the contention of the petitioner is that Board was obliged to review the claim of juvenility in terms of Section 64 of the Act, 2000 read with Rule 98 and Rule 12 of the 2007 whereas the contention of the respondent is that the claim of the petitioner is not justified. The question of review in terms of the aforesaid provision are operative in circumstances where a convict is serving a sentence and during the period of such sentence the claim for juvenility is raised.
17. In such circumstances, the State or the Board may review the case with respect to the juvenility. In the case in hand, the question of juvenility was raised by the petitioner at all stages upto Apex Court which was considered, however, not allowed. Thereafter, a petition filed by the petitioner was rightly rejected.
18. In the opinion of the Court, the submissions advanced on behalf of the respondents has substance. It is not in dispute that the claim of juvenility was raised before the Trial court as well as the Appellate Court. It would appear that the matter was thoroughly considered by the Division Bench of this court while hearing the Criminal Appeal of the petitioner vide Annexure- 3.
19. The matter was well discussed and considered in Paragraph -9 of the judgment which quoted below :-
"Learned Additional Sessions Judge waited for long time for the report of the Medical Board and on account of non-receipt of the report as a result of default on the part of the appellant he proceeded with the trial. When he proceeded with the trial, no objection, it appears, was made on behalf of the appellant and he faced trial without any complaint and grievance. Further, the appellant did not move the superior court for the act of the sessions Judge proceeding with the trial without getting the medical report of the medical board in respect of juvenility of the appellant. In the circumstances, I am of the opinion that the appellant has lost his case of juvenility and hence submissions of the learned counsel on this point is not sustainable."
20. The petitioner against the dismissal of the appeal filed Special Leave Petition N0 3547 of 2008. On perusal of the aforesaid petition vide paragraph – 4 (KtoU) , the issue was again raised, however, the Supreme Court upon hearing dismissed the Special Leave Petition vide order dated 29th of August 2008 as contained in Annexure- 4.
21. In the other words, it is not a case in which the claim was not raised at any stage and is being raised first time with prayer for redetermining the claim of juvenility before the Board. It is a case in which the issue was raised and considered at all stages but not accepted for the reasons assigned.
22. In view of the discussions made above, I do not find any error in the impugned order dated 06.10.2010,(Annexure- 6) whereby the prayer of the petitioner for determining the age of the petitioner afresh to get the benefit of juvenility was rightly rejected supported by good reasons as assigned in the impugned order.
23. Accordingly, the writ application fails being devoid of merit. The same is accordingly dismissed. No costs.