It is most reassuring, refreshing and reenergizing to learn that none other than the Apex Court itself has in a most laudable, learned, landmark and latest judgment titled Vinod Katara vs State of Uttar Pradesh in Writ Petition (Criminal) No. 121 of 2022 pronounced as recently as on September 12, 2022 minced just no words to hold unequivocally that lodging juveniles in adult prisons amounts to deprivation of their personal liberty.
The Bench of Justice Dinesh Maheshwari and Justice JB Pardiwala also conceded that once a child is caught in the web of adult criminal justice system, it is difficult for the child to get out of it unscathed. This was held so while considering a writ petition that was filed by a murder accused undergoing life imprisonment seeking appropriate directions to the respondent State of Uttar Pradesh to verify the exact age of the convict on the date of the commission of the offence. According to he convict, on the date of the commission of the offence i.e. 10.09.1982, he was a juvenile aged around 15 years.
At the outset, this brief, brilliant, bold and balanced judgment authored by Justice JB Pardiwala for a Bench of Apex Court comprising of Justice Dinesh Maheshwari and himself sets the ball rolling by first and foremost putting forth in para 1 that, “Personal liberty of a person is one of the oldest concepts to be purported by national courts. As long ago as in 1215, the English Magna Carta provided that:-
“No free man shall be taken or imprisoned…. but….. by law of the land.””
Broadly speaking, the Bench then duly acknowledges in para 2 that, “Today, the concept of personal liberty has received a far more expansive interpretation. The notion that is accepted today is that liberty encompasses these rights and privileges which have long been recognized as being essential to the orderly pursuit of happiness by a free man and not merely freedom from bodily restraint. There can be no cavil in saying that lodging juveniles in adult prisons amounts to deprivation of their personal liberty on multiple aspects.”
To be sure, the Bench then states in para 3 that, “This Writ Application under Article 32 of the Constitution is at the instance of a convict accused undergoing life imprisonment for the offence of murder seeking appropriate directions to the respondent State of Uttar Pradesh to verify the exact age of the convict on the date of the commission of the offence as it is the case of the convict that on the date of the commission of the offence i.e. 10.09.1982 he was a juvenile aged around 15 years.”
To put things in perspective, the Bench then envisages in para 4 that, “The facts giving rise to this litigation may be summarized as under:
- The writ applicant along with other co-accused persons was put to trial for the offence punishable under Section 302 r/w 34 of the IPC;
- The 5th Additional Sessions Judge, Agra in the sessions trial No. 535 of 1983 arising from the case crime no. 126 of 1982 registered with the Fatehpur Sikri District, Agra held the writ applicant herein and the co-accused persons guilty of the offence of murder and sentenced them to life imprisonment;
- The writ applicant herein and the other convicts went in appeal before the Allahabad High Court by filing the Cr. Appeal No. 133 of 1986 questioning the legality and validity of the judgment & order of conviction passed by the trial court dated 06.01.1986;
- The appeal was heard by the High Court and vide judgment and order dated 04.03.2016 came to be dismissed thereby affirming the judgment and order of conviction passed by the trial court;
- The writ applicant herein dissatisfied with the order passed by the High Court dismissing his appeal, referred to above, came before this Court by filing application for Special Leave to Appeal (Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016 declined to grant leave as prayed for and dismissed the Special Leave Petition.
It would be instructive to note that the Bench then mentions in para 5 that, “It may not be out of the place to state at this stage that till this Court dismissed the Special Leave Petition vide the order dated 16.08.2016, the writ applicant herein had not raised the question of him being a juvenile on the date of the commission of the alleged offence on 10.09.1982.”
Briefly stated, the Bench then notes in para 6 that, “It appears that while the writ applicant was undergoing sentence of life imprisonment, he was subjected to medical examination by the Medical Board constituted by the respondent State in pursuance of the judgment rendered by a Division Bench of the Allahabad High Court in the Criminal Writ Public Interest Litigation No. 855 of 2012, wherein the Division Bench of the Allahabad High Court observed as under:
“Admittedly, as per the State’s earlier affidavits, it was claimed that there were 72 prisoners, who may have been below 18 years in age and who are detained in the various district or Central jails. Their break up was as follows:
There were 23 such prisoners in Bareilly, 1 in Lucknow, 4 in Allahabad, 2 in Etawah, 18 in Agra and 23 in Fatehgarh. One such prisoner Raju, who belonged to Faizabad, whose age was determined to be below 18 years by the Principal Magistrate, Juvenile Justice Board was sent to Special Home after having been detained for a long time in Faizabad jail.
Thus, vide the order dated 24.05.2012 referred to above passed in a Public Interest Litigation being Criminal (PIL) Misc. W.P. No. 855 of 2012, the Allahabad High Court directed the Juvenile Justice Boards to hold an enquiry for determination of the age of prisoners languishing in jails who claimed to have been juveniles in conflict with the law.”
Be it noted, the Bench then notes in para 7 that, “The Medical Board subjected the writ applicant herein to the X-rays of the skull and sternum. Upon medical examination of the writ applicant herein, the Medical Board gave its report dated 10.12.2021 certifying that on 10.09.1982 i.e. the date of the commission of the alleged offence, the writ applicant could have been around 15 years of age as on the date of the medical examination, the convict was around 56 years of age.”
As it turned out, the Bench then discloses in para 8 that, “It appears that sometime later, the writ applicant was in a position to obtain a document in the form of Family Register dated 02.03.2021 issued under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. In the Family Register certificate, the year of birth of the writ applicant herein is shown as 1968. If 1968 is the correct birth year of the writ applicant herein, then in 1982 he was about 14 years of age.”
Needless to say, the Bench then mentions in para 9 that, “In such circumstances referred to above, the writ applicant is here before this Court. He claims that as he was a juvenile on the date of the commission of the alleged offence sometime in the year 1982, he could not have been put to trial along with other co-accused and should have been dealt with under the provisions of the Juvenile Justice Act as prevailing at the relevant point of time. It is the prayer of the writ applicant that the respondent State be directed to get the claim of the writ applicant in regard to the juvenility verified through the concerned Sessions Court or the Juvenile Justice Board.”
It would be pertinent to note that the Bench then observes in para 18 that, “The first and the foremost issue that arises for our consideration in this writ petition is in regard to the applicability of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the 2000 Act”).”
While continuing in the same vein, the Bench then specifies in para 19 stating that, “In the aforesaid context, we must first look into the relevant dates as follows:
- The date of the incident is 10.09.1982. Thus, on the date of incident even the Juvenile Justice Act, 1986 was not in force. What was in force was the Children Act, 1960. The Children Act, 1960 was a beneficial legislation enacted to take care of the delinquent and neglected children. Under the said Act, a child meant a person who had not attained the age of 16 years in the case of a boy or 18 years in the case of a girl.
- The petitioner herein came to be convicted by the trial court vide judgment and order dated 06.01.1986. Even on the date of conviction, the Juvenile Justice Act, 1986 was not in force. The Juvenile Justice Act, 1986 came in force with effect from 01.12.1986. Thus, even on the date of conviction, the Children Act, 1960 governed the field.
- The appeal filed by the petitioner herein in the High Court of Allahabad against the judgment and order of conviction passed by the trial court came to be decided and was ordered to be dismissed vide judgment and order dated 04.03.2016. It is relevant to note that on the date when the appeal came to be dismissed by the High Court, the 2000 Act was in force.
- Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by the petitioner herein in this Court came to be dismissed vide order dated 16.08.2016.
Quite rightly, the Bench then points out in para 20 that, “On and with effect from 15.01.2016, the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, “the 2015 Act”) came into force which repealed the 2000 Act. While the appeal of the petitioner herein against his conviction and sentence was pending in the High Court, the 2000 Act came into force which repealed the Juvenile Justice Act, 1986. The 2000 Act inter alia raised the age of juvenility from 16 to 18 years and in terms of Section 20 of the 2000 Act, the determination of juvenility was required to be done in all pending matters in accordance with Section 2(1) of the 2000 Act.”
It deserves mentioning that the Bench then notes in para 33 that, “The 2000 Act stands repealed by the 2015 Act. The procedure for determining the age is now part of Section 94 of the 2015 Act which was earlier provided under the abovementioned Rule 12 of the Rules.”
Quite significantly, the Bench then mandates in para 64 that, “Despite all the odds against the writ applicant, we would still like to look into the matter in the larger interest of justice. It will be in fitness of things if the writ applicant convict is once again subjected to the ossification test at the Civil Hospital, Allahabad or any other latest medical age determination test and such test shall be carried out by a team of three doctors, one of whom should be the head of the Department of Radiology.”
Most significantly, the Bench then directs in para 65 that, “In view of the aforesaid, we issue the following directions:
- We direct the Sessions Court, Agra to examine the claim of the writ applicant to juvenility in regard with law within one month from the date of communication of this order;
- The concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by writ applicant convict considering that the document does not appear to be contemporaneous. This document assumes importance, more particularly in the light of the fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of incident. If the Family Register on record is ultimately found to be authentic and genuine, then we may not have to fall upon the ossification test report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain the authenticity and genuineness of the same. If need be, the statements of the persons concerned i.e. from the concerned government department may also be recorded;
- The Sessions Court shall ensure that the writ applicant convict is medically examined by taking an ossification test or any other modern recognized method of age determination;
- The Sessions Court concerned shall submit its report as regards the aforesaid to this Court within one month from the date of communication of this order;
- The Registry is directed to forward one copy of this order to Sessions Court, Agra;
- We request the learned counsel appearing for the State to take appropriate steps to facilitate the Sessions Court to complete the enquiry.
Finally, the Bench concludes by holding in para 66 that, “Notify this matter after a period of four weeks along with the report that may be received from the Sessions Court, Agra. The final order shall be passed after perusal of the report upon receipt from the Sessions Court, Agra.”
All in all, the key takeaway from this most learned judgment is that lodging juveniles in adult prisons amount to deprivation of their personal liberty. The Apex Court made it clear that lodging juveniles in adult prisons is a very serious matter as it straightaway tantamount to deprivation of their personal liberty. We all know that personal liberty is a fundamental right as enshrined under Article 21 of the Constitution. So there can be just no compromise on it and the Apex Court has made the picture entirely clear before us as discussed hereinabove. Of course, the Court also made it pretty clear that in deciding whether an accused is a juvenile or not, a hyper technical approach should not be adopted.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh