- (1.) Heard Sri Santosh Yadav learned counsel for the petitioner and Sri D.P.S Chauhan learned Additional Advocate General for the State respondents.
(2.) The instant petition has been filed for issuance of a writ in the nature of habeas corpus for release of the petitioner namely Kiranpal @ Kinna from the District Jail Agra, on the plea that his detention in jail is contrary to the fundamental rights guaranteed under Article 21 of the Constitution of India.
(3.) It is contended that vide order dated 19.9.2018, the Juvenile Justice Board, Bulandshahr had declared the petitioner juvenile as he was found to be 17 years, 9 months and 25 days on the date of the incident. The brief facts of the case relevant to appreciate the plea of the petitioner are that a first information report dated 26.3.2000 was lodged against the petitioner and 13 others co-accused persons under Sections 147, 148, 302/149, 307/149, 323/149 IPC and 7th Criminal Law Amendment Act, registered as Case Crime No. 33 of 2000 at the Police Station Khanpur, District Bulandshahr. The time and date of the occurrence of the incident as per the said report was 9.30 AM on 26.3.2000. It is contended that the petitioner was a minor at the time of the incident. Since the father of the petitioner was also one of the accused in the said criminal case, there was no one to pursue the matter except the illiterate mother of the petitioner. As a result of it, defence of juvenility of the petitioner could not be taken at the relevant point of time. The investigating officer had submitted charge sheet and trial was commenced but neither the investigating agency nor the trial court made any effort on its own to find out the age of the petitioner at any point of time, during the course of the investigation or trial of the petitioner. The petitioner along with co-accused was convicted and sentenced vide judgment and order dated 29.9.2003 passed in the Sessions Trial No. 884 of 2000 for life imprisonment for the charges under section 302 read with Section 149 IPC; for seven years rigorous imprisonment for the charges under Section 307 read with Section 149 IPC; and six months rigorous imprisonment for the charges under Section 323 read with Section 149 IPC. All the sentences were to run concurrently. Aggrieved, the petitioner along with other co-accused filed Criminal Appeal No. 5009 of 2003, which was also dismissed vide judgment and order dated 27.3.2013 passed by this Court. It is stated that on an application dated 21.3.2018 filed by the mother of the petitioner before the Juvenile Justice Board, Bulandshahr that the petitioner was minor at the time of the incident and he was entitled for the benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act, 2000") as amended from time to time, the Juvenile Justice Board, Bulandshahr vide order dated 19.9.2018 had declared the petitioner being 17 years, 9 months and 25 days of age on the date of the incident. It is then contended that the order of the Juvenile Justice Board, Bulandshahr had never been challenged and hence has attained finality. ;