IN THE HIGH COURT OF JUDICATURE AT PATNA CR WJC No 969 of 2011 Mathura Yadav, son of late Baun Yadav @ Bhagwan Yadav, Resident of village – Gewal Bigha, Police Station – Rampur, District – Gaya - Petitioner Versus 1 The State of Bihar 2 The Chief Secretary, Government of Bihar, Patna 3 The Principal Secretary, Department of Home, Old Secretariat, Bihar, Patna 4 The Secretary, Department of Law, Bihar, Patna 5 The Inspector General (Prison), Bihar, Patna 6 The Secretary, Social Welfare Department, Bihar, Patna 7 Bihar School Examination Board, Patna through its Chairman - Respondents *** For the petitioner : Mr Baxi SRP Sinha, Sr Advocate with Mr Sanjay Kr & Miss Nagma Shamim, Advocates For the S t a t e : Mr Vikas Kr, Advocate For the B S E B : Mr Girijesh Kr, Advocate *** 4 15.11.2011 The petitioner has filed this application for release from prison on ground of being juvenile at the time when the offence was committed. Juvenility was claimed on basis of the matriculation certificate, as granted by the Bihar School Examination Board. It appears that the matter of his release was considered on about 28.07.2010 by the Advisory Board of the State Home Department (Annexure-1) and as verification of his matriculation certificate was pending, he was not directed to be released though in the order itself, it is noted that he was less than 18 years on the date of offence. We directed the Bihar School Examination Board to be made a party and directed it to verify the genuineness and 2 authenticity of the certificate so granted. A counter affidavit has been filed by the Bihar School Examination Board certifying that the matriculation certificate, dated 16.08.1983, as filed by the petitioner, is correct and genuine. Petitioner has also filed a supplementary affidavit in which he has stated that, but for this case in which he is serving sentence of life imprisonment, he is not required to be detained in any other case. We have heard Shri Baxi SRP Sinha, learned Senior Counsel for the petitioner, learned counsel for the State and the learned counsel for the Board. In our view, the writ petition must succeed. It is not disputed that petitioner was convicted by the Additional Sessions Judge V, Gaya in Sessions Trial No 44 of 1984 and 90 of 1984 (Annexure-3) on 25th of July, 1987 and sentenced to life imprisonment. The date of offence was 05.07.1983. As per the matriculation certificate, his date of birth is 22.01.1966 and, as such on the date of occurrence, he would be about 17 years, 5 months and 13 days old and, therefore, a minor when the offence was committed that is 1983. At that time, the Bihar Children’s Act, 1982 was in force. At that time, the age for qualifying as juvenile in conflict with law was 16 years. This Act was later repealed and replaced by Juvenile Justice Act of 1986 (Central Act). Here again, the age of juvenile was 16 years and, accordingly, the petitioner did not qualify to get any benefit under these Acts. However, with effect from 01.04.2001, the Juvenile Justice (Care and Protection of Children) 3 Act, 2000 was enacted by the Parliament repealing the Juvenile Justice Act of 1986 and in terms of Section 2 (k) thereof, juvenile was defined as a person who, on the relevant date, had not completed 18 years of age. Thus, in view of this later parliamentary enactment, petitioner qualified to be considered as a juvenile in conflict with law but by then the criminal appeal, as preferred by the petitioner before Division Bench of this Court, had already long since been dismissed affirming the conviction and sentence. It appears that the petitioner had preferred appeal to the Apex Court but the same was also dismissed on 17.10.2003 without the plea of juvenility having been raised there. Thus, in our view, even though petitioner is a juvenile in conflict with law within the meaning of the Act of 2000, he had not taken this plea at any stage and, therefore, the judgment of conviction and sentence stood finally affirmed. It is, thus, not open to this Court in this writ proceeding, which are proceedings independent of the proceedings for his trial, to give the benefit of juvenile to the petitioner. However, Mr Baxi SRP Sinha, learned Senior Counsel relies on a Division Bench judgment of this Court recently delivered in the case of Md Arshad Alam @ Chhotu @ Irshad and Another – Versus- State of Bihar and Others since reported in 2011 (4) PLJR 256 and, in particular, what is said by this Court beginning from paragraph-10 onwards therein. This Court has held that though 4 petitioner was entitled to benefits of juvenile in conflict with law especially in terms of the amendment of the Act of 2000 in the year 2006, in writ proceedings, which are independent proceedings, this Court could not grant him the relief but in view of Section 64 of the said Act, State is bound to consider the same for the purpose of granting remission. From the facts noted in the very beginning, it would be evident that the State does not deny this position as the Advisory Board to the State Home Department did consider but postponed the order awaiting verification of the matriculation certificate. In that view of the matter, we have no option but to hold that in terms of Section 64 of the Act and the judgment of this Court, as referred to above, the petitioner is bound to be released from custody, if not required in any other case. We, therefore, direct the State to forthwith take up the matter and within one month, consider the case of the petitioner in terms of Section 64 of the Act and pass orders appropriate to the facts of the case like others. It may be noted that if appropriate pleas were taken by the petitioner at the appropriate stage then he would have been given the benefit of juvenility being a juvenile in conflict with law in 2003 itself by the Apex Court when his appeal was dismissed. He has remained in custody for over 8 years even after disposal of the said appeal and by now has been in custody for almost 15 years when, by operation of law, he could not have been detained at all. We expect the State to pass orders immediately in view of the aforesaid facts 5 without waiting for the petitioner to apply to the Advisory Board or any authority. With these observations and directions, the writ petition is allowed. Let the order of this Court passed today be communicated to the State Government in the Department of Home for proper implementation immediately by FAX at the cost of the petitioner. M.E.H./ (Navaniti Prasad Singh) (Ashwani Kumar Singh)