Rajesh Kumar vs State of Haryana

Gurdev Singh, J.—The Petitioner/accused, Rajesh Kumar; being a juvenile, was tried by the Juvenile Justice. Board, for the offences punishable under Sections 304B/406/302 IPC. He was convicted for the Offence u/s 304B read with Section 34 IPC and was ordered to be kept in protective custody for three years in Borstal Jail at Hisar, vide order dated 30.4.2004 passed by that Board. He pre-ferred an appeal against that order, which was dismissed by the Additional sessions Judge, Sonepat, vide judgment dated 11.3.2005. The present revision has been preferred by him against those judgments:

Detailed facts of the case need not be gone into, in view of the fact that the conviction so recorded by the Juvenile Justice Board and upheld by the Additional Sessions Judge was not challenged before this Court. It has been submitted by the learned Counsel for the Petitioner/accused that at the time of the commission of the offence, the Petitioner was 15 years 7 months and 5 days old and that at present he has attained the age of 34 years; which fact has not been disputed by the learned State counsel. According to the learned Counsel for the Petitioner, he is liable to be released, in view of the observations made by the Hon''ble Supreme Court in Babban Rai and Another Vs. State of Bihar, .

After the Petitioner (juvenile) was convicted by the Juvenile Justice Board, one of the orders, as prescribed u/s 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act''), could have been passed. He appears to have been sent to Borstal Jail u/s 15(1)(g) of the Act. As per that clause, the Board could have made an order direct-ing the juvenile to be sent to the special home for a period of three years. u/s 9 of the. Act, the State Government may establish and maintain either by itself or under an agreement with volun tary organizations, special homes in every district or a group of districts, as may be required for reception and rehabilitation of the juvenile in confltet with law under the Act. The learned State counsel has not been able to produce any such notification or order passed by the State Government declaring Borstal Jail in Hisar as a special home. Under the circumstances, the Juvenile Justice Board could not have passed an order for keeping the Petitioner in protective custody in such borstal jail.

A similar question arose before the Hon''ble Supreme Court in Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., . In that case the accused were 16 years old at the time of the commission of the offence. They were convicted for the offence u/s 302 IPC and were sentenced to life imprisonment. At the time, the matter came up for hearing before the Hon''ble Supreme Court, they had already attained the age of 30 years. It was held that it would be just and expedient to set aside the sentence and pass an order releasing them, as they cannot be sent to remand home. The ratio of this judgment fully applies to the facts of the present case.

Accordingly, this revision petition is hereby accepted. The sentence awarded to the Petitioner is set aside and he is ordered to be released forthwith.

Records be returned to the trial court.