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2016 DIGILAW 573 (JK)

Parteep Singh v. State of J&K

2016-11-07

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. A. HCP No. 16/2016 1. Parteep Singh alias Pardeep Singh father of detenue Sunit Singh, resident of Village Gool, Tehsil and District Ramban at present Village Sambal Tehsil and District Udhampur, has filed the instant Habeas Corpus petition seeking quashing of detention order of his son issued vide No. Home/PB-V/255/2016, dated 15.04.2016 by the Principal Secretary to Government, Home Department by virtue of which the detenue has been directed to be detained for a further period of three months under the provisions of the Jammu and Kashmir Public Safety Act (for short, the Act). It is averred that son of petitioner has been dragged for the commission of offences punishable under Sections 302, 307, 435, 427, 336, 337, 147, 148, 149, 120-B RPC read with Section 3(5) of Explosive Substances Act by the police of Police Station, Udhampur in FIR Nos. 367/2015 & 368/2015, dated 09.10.2015, whereas fact of the matter is that he was a juvenile, having 16 years four months and 11 days age when both the aforementioned FIRs were registered against his son. Further, it is alleged that he was a 12th standard regular student of Happy Model Higher Secondary School, Udhampur when both the FIRs were registered against him. After registration of said FIRs, the son of petitioner was detained by the police on 10.10.2015. Further on 16.10.2015, the mother of detenue moved an application before the learned Principal Sessions Judge, Udhampur, who categorically held that the detenue was a juvenile at the time of alleged occurrence and consequently he was directed to be released in the custody of petitioner herein. It is further stated that subsequently, during the pendency of said application, respondents all of a sudden and without any reason slapped Public Safety Act upon the detenue despite the fact that he was a juvenile at the time of alleged occurrence and, thereafter, detained him in Kot Bhalwal Jail, Jammu vide order dated 19.10.2015. Feeling aggrieved, petitioner preferred Habeas Corpus Petition No. 33/2015 challenging order dated 19.10.2015. It is averred that thereafter the respondents issued another order bearing No. Home/PB-V/33/2016, dated 15.01.2016 whereby the detention period of detenue came to be extended for a further period of three months, against which the petitioner also filed Habeas Corpus Petition No. 3/2016. Feeling aggrieved, petitioner preferred Habeas Corpus Petition No. 33/2015 challenging order dated 19.10.2015. It is averred that thereafter the respondents issued another order bearing No. Home/PB-V/33/2016, dated 15.01.2016 whereby the detention period of detenue came to be extended for a further period of three months, against which the petitioner also filed Habeas Corpus Petition No. 3/2016. It is contended that during the pendency of both the habeas corpus petitions, the learned Chief Judicial Magistrate, Udhampur, vide order dated 23.1.2016 admitted the detenue to bail. Further, it is averred that the respondents instead of releasing the petitioner on bail, vide Order No. Home/PB-V/255/2016, dated 15.04.2016 issued by respondent No. 2 extended the period of detention by three months. Hence, the present petition. 2. The contention of learned counsel for petitioner is that since as per the Mark Sheet of Secondary School Examination (10th Class) issued by the J&K Board of School Education, the date of birth of petitioner is 30.05.1999, the petitioner being juvenile ought not to have been detained under the Public Safety Act. Thus, it is contended that the detention of detenue is not only illegal and bad, but is unsustainable on the face of record; therefore, the detention order is required to be quashed. Further, it is contended that the detenue has also not been supplied with the copies of FIR, dossier, recovery memos and other relevant documents. 3. Respondents have filed objections. It is averred that the detenue Sunit Singh was medically examined in the Government Hospital at Udhampur and the Medical Officer determined his age as more than 18 years. Further, it is averred that in the Chowkidara register of the concerned Village, the date of birth of detenue has been recorded as 20.12.1998. It is further averred that despite repeated requisitions, the petitioner did not submit any age proof of his son. It is also averred that detention order has also been approved by the Government vide order dated 23.10.2015. 4. Heard learned counsel appearing for the parties and perused the habeas corpus record. 5. Admittedly, in the Mark Sheet of Secondary School Examination, the date of birth of detenue has been shown as 30.05.1999; meaning thereby on the date of registration of both the FIRs, i.e., 09.10.2015 the petitioner was below the age of 18 years. 4. Heard learned counsel appearing for the parties and perused the habeas corpus record. 5. Admittedly, in the Mark Sheet of Secondary School Examination, the date of birth of detenue has been shown as 30.05.1999; meaning thereby on the date of registration of both the FIRs, i.e., 09.10.2015 the petitioner was below the age of 18 years. Even if the claim of respondents is admitted that as per the Chowkidara register the date of birth of detenue is 20.12.1998, the petitioners falls below the age of 18 years on the date of registration of both the FIRs; thus the same itself belies the claim of respondents that as per medical record the age of detenue was more than 18 years on the relevant date. The respondents cannot be allowed to take two contradictory stands. The respondents in the objections have not specifically denied the Mark Sheet of detenue issued by the J&K Board of School Education, wherein his date of birth has been shown as 30.05.1999. Once there is a clear-cut age proof of detenue in the shape of Mark Sheet of Secondary School Examination, the medical examination regarding the age of detenue automatically loses its significance. 6. Further, respondents filed objections in the instant petition on 19.05.2016 wherein they claimed that despite repeated requisitions, the petitioner did not submit any age proof of his son. 7. It is to be seen here that the first habeas corpus petition, bearing No. 33/2015 came to be filed by the petitioner on 31.12.2015, Annexure "A" whereof is the mark sheet of secondary school examination. In the said petition, Deputy Commissioner, Udhampur and S.S.P., Udhampur also filed their objections. Therefore, it does not lie in the mouth of respondents to aver that the petitioner did not provide any age proof of detenue. In fact, the respondents were very much aware about the age proof of detenue as shown in the Mark Sheet of Secondary School Examination and the respondents for obvious reasons did not question the said mark sheet nor denied the same in clear terms. 8. The Apex Court in Upendra Pradhan v. State of Orissa, 2015 (5) Scale 634 , while allowing the appeal granted the benefit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 to the accused. 8. The Apex Court in Upendra Pradhan v. State of Orissa, 2015 (5) Scale 634 , while allowing the appeal granted the benefit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 to the accused. The relevant extract of the judgment is reproduced hereunder: "The learned counsel for the appellant raises the plea of juvenility under Section 7A of the Juvenile Justice (Care and Protection) Act, 2000. The plea can be raised before any Court and at any point of time. We feel that the stand taken by the counsel is correct and we will look into the present lis keeping in mind the juvenility of the accused appellant at the time of commission of the crime. As stated earlier, the age of the accused appellant was less than 18 years at the time of the incident. It has been brought to our notice that the appellant has undergone about 8 years in jail. The appellant falls within the definition of "juvenile" under Section 2(k) of the Juvenile Justice (Care and Protection of children) Act, 2000. He can raise the plea of juvenility at any time and before any court as per the mandate of Section 7(a) and has rightly done so. It has been proved before us, as per the procedure given in the Rule 12 of the Juvenile Justice Model Rules, 2007, and the age of the accused appellant has been determined following the correct procedure and there is no doubt regarding it." 9. Therefore, in view of the above, it is crystal clear that the respondents have observed all the constitutional mandates and the statutory provision of law in breach. The detenue is entitled to the benefit under the J&K Juvenile Justice (Care and Protection of Children) Act, 2013 since he was a juvenile on the date of commission of the offence. 10. Accordingly this petition is allowed and the impugned order of detention bearing Order No. Home/PB-V/255/2016, dated 15.04.2016 is quashed. Respondents are directed to release the detenue from preventive detention, if not required in any other case, with a direction that the detenue be given the treatment as is given to the juveniles under the J&K Juvenile Justice (Care and Protection of Children) Act, 2013. Miscellaneous petitions, if any, accordingly stands disposed of. B. HCP No. 33/2015 and HCP No. 3/2016 11. Miscellaneous petitions, if any, accordingly stands disposed of. B. HCP No. 33/2015 and HCP No. 3/2016 11. In view of allowing of HCP No. 16/2016, the impugned detention orders in both the petitions are hereby quashed. Miscellaneous petitions also, accordingly, stand disposed of. C. Cr. Rev. No. 09/2016 12. This revision petition has been filed by the State seeking setting aside of order dated 27.10.2015 passed by the learned Principal Sessions Judge, Udhampur, in File No. 111/bail, by virtue of which the detenue, while declaring as juvenile, has been granted bail, along with subsequent order dated 08.01.2016, whereby the State has been directed to bifurcate the Challan. In view of allowing of aforementioned three habeas corpus petitions, I do not find any merit in the criminal revision and the same is, accordingly, dismissed.