Upendra Paswan vs State of Jharkhand

Rakesh Ranjan Prasad and Amitav Kumar Gupta, JJ.

Heard learned Counsel appearing for the appellant and learned Counsel appearing for the State. It is the case of the prosecution that an encounter took place in between the members of the extremist group and the police party on 31.12.2001. In that encounter, three police personnel after sustaining gun-shot injuries died. At the same time, one person from the side of the extremist group also died.

Further case is that while the encounter was going on, members of the extremist group were calling each other by their names. During that course, the names of Upendra Paswan and other were overheard by the members of the police party. Accordingly, FIR was lodged as Hussainabad P.S. Case No. 1 of 2002 under Sections 147, 148, 149, 302, 307, 332, 333, 353, 427, 120B of the Indian Penal Code and also under Sections 3/4 of the Explosive Substance Act, as well as under Section 17 of the Criminal Law Amendment Act and under Sections 31ab, 32, 33, 34, 35, 4ab, 20 lab and 214 a of the Prevention of Terrorism Act. Subsequently, the offence under Sections 25 lb a, 26 and 35 of the Arms Act were added.

The matter was taken up for investigation. After completion of investigation, the police submitted charge-sheet under the aforesaid offences against this appellant and four other accused persons. They were put on trial. During trial, four persons namely. Brihaspati Singh, Rambachan Choudhary, Mutur Paswan and Shrawan Ram were discharged for the reason that sanction granted earlier under the provision of the Prevention of Terrorism Act had been withdrawn and their cases were transferred to regular Court for taking up trial. The accused Sukender Paswan was found to be juvenile and hence, his case was sent before the Juvenile Justice Board for trial. In this way, this appellant was alone put on trial in Special Case No. 1 of 2002P whereby prosecution examined witnesses including PW 1, who was one of the members of the police party and identified this appellant during trial. Apart from that, confession made by this appellant in connection with other case was taken to be admissible in view of me provision as contained in Section 32 of the Prevention of Terrorism Act.

In those circumstances, the Court did find this appellant guilty for the offences under which charges were framed. Accordingly, this appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000 for each of the offences under Section 302 read with Section 149 of the Indian Penal Code as well as Section 32 of the Prevention of Terrorism Act. Further he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2,000 under Sections 307/149 of the Indian Penal Code and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000 under Sections 333/149 of the Indian, Penal Code. Further to undergo rigorous imprisonment for two years under Section 148 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000 under Section 35 of the Prevention of Terrorism Act and to undergo rigorous sentence for six months under Section 17 of the Criminal Law Amendment Act.

Being aggrieved with that order dated 19.8.2009 passed by the Judicial Commissioner-cum-Special Judge, POTA, Ranchi, this appeal has been preferred.

During the pendency of this appeal, an application was filed under Section 21 of the Juvenile Justice Act before this Court taking a plea that this appellant on the date of occurrence was juvenile and hence prayer was made to hold an enquiry. This Court, vide order dated 3.2.2014 directed the Juvenile Justice Board, Palamau for making enquiry as to whether the appellant was juvenile on the date of occurrence. After making enquiry, the Juvenile Justice Board vide its order dated 30.6.2014 passed in Misc. Case No. 1 of 2014 did find the appellant to be Juvenile on the day of occurrence. The said report has been sent to this Court by the In-charge, Principal Magistrate, Juvenile Justice Board, Palamau, vide its letter No. 183 dated 24.7.2014. Since it has been found by the Juvenile Justice Board that the appellant was juvenile on the day of occurrence. Mr. Jitendra S. Singh, learned Counsel appearing for the appellant submits that he would not be challenging order of conviction rather he would confine his challenge to the order of sentence as the sentence imposed is much more than what has been prescribed under Section 15 of the Juvenile Justice Act whereby maximum punishment what has been prescribed is three years whereas this appellant has been in custody since 15.3.2005.

Learned Counsel in support of his submission has referred to a decision rendered in a case of Lakhan Lal Vs. State of Bihar, as well as in a case of Shyam Pado Mandal v. State of Jharkhand 2014 (1) East Cr. C. 613 (Jhar.).

Mr. Pankaj Kumar, learned Counsel appearing for the State submits that the law has already been settled in the matter which has been raised on behalf of the appellant.

In this regard, it was further submitted that if a person is tried by regular Court and after conviction plea is taken that he was juvenile at the time of occurrence, the matter needs to be enquired into and after holding enquiry, if it is found that the person was a juvenile then sentence needs to be passed which has been prescribed under the Juvenile Justice Act but before that the order of conviction needs to be upheld.

Learned Counsel in support of his submission has referred to a decision rendered in a case of Jitendra Singh @ Babboo Singh and another v. State of U.P. 2013 (9) Scale 18 : 2013 (5) Supreme 232 : 2013 (3) Crimes 319.

In view of the submissions advanced on behalf of the parties, the decision rendered in a case of Jitendra Singh @ Babboo Singh and another v. State of U.P. supra needs to be taken notice of. When the said case came up or consideration before the Hon''ble Supreme Court. Their Lordships took notices of the cases wherein divergent views had been taken over the issues relating to the question of Juvenility being raised for the first time. While dealing with the matter, Their Lordships did notice that four categories of the cases are there. In the first category of the cases, the conviction of the Juvenile upon being upheld sentence was quashed. Such view had been taken in a case of Jayendra and another Vs. State of Uttar Pradesh, ; Bhoop Ram Vs. State of U.P., ; Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., ; Bhola Bhagat Vs. State of Bihar, ; Upendra Kumar Vs. State of Bihar, ; Gurpreet Singh Vs. State of Punjab, and Vijay Singh Vs. State of Delhi, .

Second category of cases are those cases wherein conviction of the appellant was upheld but the sentence awarded was modified to the period of detention already undergone. Such view has been taken in a case of Satish @ Dhanna Vs. State of M.P. and Others, and in a case of Dharambir Vs. State (NCT of Delhi) and Another, .

Third category of cases are those cases wherein conviction of Juvenile was set aside and the case was remitted to the Juvenile Justice Board for disposal in accordance with law. Such view has been taken in a case of Hari Ram Vs. State of Rajasthan and Another, and in Daya Nand Vs. State of Haryana, .

Fourth category of cases are those cases in which conviction of the appellant was upheld and the records were directed to be placed before the Juvenile Justice Board for awarding suitable punishment to the appellant.

After taking notice of all those cases, Their Lordships did hold that the course to be adopted is laid down in Section 20 of the Juvenile Justice Care and Protection of Children Act. 2000. The said provision reads as follows:

"20. Special provision in respect of pending cases--Notwithstanding anything contained in this Act, all proceedings in respect of a Juvenile pending in any Court in any area on the date on which this Act comes into force in that area shall be continued in that Court as in this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:

Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation--In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of Juvenility of such a juvenile shall be in terms of Clause 1 of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."

Keeping, in view the said provision. Their Lordships did hold that it is clear that the case of juvenile has to be examined on merit. If it is found that the juvenile is guilty of the offence alleged to have been committed, he simply cannot go unpunished. However, as the law stands the punishment to be awarded to him or her must be left to the Juvenile Justice Board constituted under the Juvenile Justice Care and Protection of Children Act, 2000. This is the plain requirement of Section 20 of the Juvenile Justice Care and Protection of Children Act, 2000. Consequently, it was held that the view taken in a case of Ashwani Kumar Saxena Vs. State of M.P., is to be followed.

Earlier to this decision, the same question relating to the procedure to be adopted in a case where the question of juvenility has been raised for the first time did crop up in a case of Lakhan Lal v. State of Bihar supra. Their Lordships after taking notice of the several decisions was pleased to hold as under:

"A somewhat similar question had arisen in Umesh Singh and Another Vs. State of Bihar, wherein this Court relying upon the earlier decisions in a case of Gopinath Ghosh Vs. The State of West Bengal, and in a case of Bhoop Ram v. State of U.P. while sustaining the conviction of the appellant therein under all the charges, held that the sentences awarded to them need to be set aside. It was also a case where the appellant therein was aged below 18 years and was a child for the purposes of the Bihar Children Act, 1970 on the date of the occurrence."

After holding so, the question also cropped up before Their Lordships as to what sort of order relating to sentence is to be passed against the appellants for the offences committed by them under Section 302 read with Section 34 of the Indian Penal Code. Their Lordship after having regard of the age of the appellants who had crossed the age of 40 years did hold that it will not be conducive to the environment in the special home and at any rate, they have undergone an actual period of sentence of more than three years the maximum period provided under Section 15 of the 2000 Act. In that event, Their Lordships set aside the sentence, while affirming the order of conviction.

Thus, the ratio laid down in the decision rendered in a case of Lakhan Lal v. State of Bihar supra and in a case of Jitendra Singh @ Babboo Singh and another v. State of U.P. supra is somewhat different, so far it relates to the point of sentence.

In a case of Jitendra Singh @ Babboo Singh and another supra, it has been held that the matter of sentence be left to be awarded by the Juvenile Justice Board whereas in case of Lakhan Lal v. State of Bihar supra the Court in the facts and circumstances of the case did not consider it fit to leave the matter relating to sentence to be passed by the Juvenile Justice Board for the reason that the appellant had crossed the age of 40 years and as such, according to Their Lordship, it will not be conducive to the environment in the special home.

Thus, what has emerged out is that of the question of juvenility has been raised for the first time before the Appellate Court, it needs to be gone into by the Court as to whether the Trial Court was justified in recording the order of conviction and sentence. Accordingly, we have to examine in this case as to whether the order of conviction recorded by the learned Judge is justified or not.

As we have stated earlier that the order of conviction is based on the testimony of PW 1, one of the members of the police party, who during encounter had sustained injury and thereby his presence cannot be ruled out According to him, he identified this appellant during evidence. Further the Court has placed its reliance over the confession made by this appellant taking it to be admissible in view of the provision as contained in Section 322 of the Prevention of Terrorism Act and thereby we do not find any illegality in the order of conviction.

So far as sentence is concerned, admittedly maximum punishment which has been prescribed under the Juvenile Justice Care and Protection of Children Act is three years whereas this appellant who may we presently aged about 31 years has already served sentence for more than nine years and thereby following the decision rendered in a case of Lakhan Lal v. State of Bihar supra the sentence imposed by the Trial Court is hereby set aside and the appellant is hereby directed to be released forthwith, if not wanted in any other case. Thus, this appeal is disposed of in terms of the aforesaid order.