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Synopsis

The Supreme Court has ordered the immediate release of a man convicted in a case involving the brutal killing of a retired Army colonel, along with the beheading of the colonel's 27-year-old son and elderly sister. The court noted that the convict was a juvenile, only 14 years old, at the time of the incident in 1994.

The appellant, employed as a helper and gardner, was awarded the death penalty and his conviction and sentence was upheld by the top court in earlier round of litigation. However, the Presidential Order in 2008 commuted his sentence to life imprisonment with a caveat that he would not be released until the attainment of 60 years of age.

A bench of Justices M M Sundresh and Aravind Kumar accepted his claim to juvenility after 25 years of prison term, holding where the plea of juvenility was not consciously considered, there would be no bar on the constitutional courts to consciously take a deeper look. Doing so is not an exercise of the powers conferred under Articles 32, 136 or 226 of the Constitution, but an act in fulfilment of a mandated duty enjoined upon the courts, to give effect to the laudable objective of a social welfare legislation, it said.

"In view of the constitutional mandate, the court is expected to play the role of parens patriae by treating a child not as a delinquent, but as a victim, viewed through the lens of reformation, rehabilitation and reintegration into the society," the court said.

The bench said this was a case where grave injustice had been perpetrated, on account of the consistent failure on part of the judicial machinery to recognise and act upon the constitutional mandate vis-a-vis the plea of juvenility.

"We would only state that this is a case where the appellant has been suffering due to the error committed by the courts. We have been informed that his conduct in the prison is normal, with no adverse report. He lost an opportunity to reintegrate into the society. The time which he has lost, for no fault of his, can never be restored," the bench said.

The matter stemmed out of a criminal appeal filed against the High Court's order which dismissed his writ petition holding that the power of judicial review over an executive order passed in exercise of Article 72 of the Constitution was limited, and the proceedings against the appellant had attained finality.

The bench said, "Courts will have to exercise adequate caution and circumspection while dealing with an executive order passed in exercise of the power conferred under Article 72 or 161 of the Constitution. We make it clear that when a challenge is made to an executive order, with an independent prayer for exercising the power under Section 9(2) of the 2015 Act, they being distinct and independent, refusal of judicial review of the former will not obliterate the mandatory duty pertaining to the latter."

His counsel said it was not in dispute that the age of the appellant was 14 years at the time of commission of the offence. There is no judicial finality attained and the phrase “any stage” used in Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 must be given an extended meaning, he argued.

The counsel said there was no contrary finding given against the appellant vis-à-vis the plea of juvenility, which he had raised at every stage. It is a case where grave injustice has been meted out, to him, the counsel contended. 

Additional Solicitor General K M Nataraj, and counsel Vanshaja Shukla appearing for the respondent submitted that this was an attempt to reopen and re-hear an issue which had attained finality. 'There was indeed an adjudication by this court on the earlier occasion. The mercy petition was considered under the constitutional mandate and, therefore, it does not require any interference. The special leave petition, as filed, is not maintainable', they said.

The court said there was no dispute that the appellant was only 14 years old at the time of the commission of the offence.

"The facts as narrated speak for themselves. At every stage, injustice has been inflicted by the courts, either by ignoring the documents or by casting a furtive glance. The appellant despite being illiterate, raised this plea one way or another, right from the trial court up to the conclusion of the curative petition before this court. The approach of the courts in the earlier round of litigation cannot be sustained in the eye of law," the bench said.

The court felt the High Court had committed an error in its reasoning.

It set aside the order of sentence imposed in excess of the upper limit prescribed under the relevant Act while maintaining the conviction rendered.

"It cannot be construed that the Presidential Order is interfered with, as the issue that we are concerned with, is the failure of the court in not applying the mandatory provisions of the 2015 Act with specific reference to the plea of juvenility. Therefore, it is not a review of the Presidential Order, but a case of giving the benefit of the provisions of the 2015 Act to a deserving person," the bench said.

The court found that the appellant had undergone imprisonment for almost 25 years, during which time society had undergone significant transformation, which he might be unaware of and find difficult to adjust to.

"Justice is nothing but a manifestation of the truth. It is truth which transcends every other action. The primary duty of a court is to make a single-minded endeavour to unearth the truth hidden beneath the facts. Thus, the court is a search engine of truth, with procedural and substantive laws as its tools," the bench said.

The bench directed the Uttarakhand State Legal Services Authority to play a proactive role in identifying any welfare scheme of the State or Central Government, facilitating his rehabilitation and smooth reintegration into the society upon his release, with particular emphasis on his right to livelihood, shelter and sustenance guaranteed under Article 21 of the Constitution.

"We further direct the State Authority to assist him in availing any such scheme under which he is found eligible and wishes to avail, and such assistance may be effected through the concerned District Legal Services Authority, if the State Authority finds the same expedient and necessary," the bench said.

Case Title: Om Prakash @ Israel @ Raju @ Raju Das Vs Union of India & Ors