CAN JUVENILITY MERCY BE CLAIMED AFTER PRESIDENTS MERCY?

Introduction:

The question was raised before Uttarakhand High Court, regarding the matter in which the petitioner Om Prakash was pleading before High Court after the mercy so being granted to him under article 72(1)(c) of constitution i.e. the power of Hon’ble President to grant pardon in cases where the death sentence is granted to the culprit, for the quashing of order so passed by the President, to which the High Court dismissed the plea.

In this case, Om Prakash @ Nazrul @ Raju Dass @ Raju Chaudhary @ Saiful Islam  was found guilty of committing 3 murder, to which the apex court granted capital punishment to Om Prakash, against which he approached the highest authority i.e. to President ( under Article 71(1)(c)) and also to the Governor of State ( under article 161) to grant mercy. Against which the President reduced his punishment to life imprisonment. After which he approached the High Court claiming Juvenility at the time of the commission of the offense, and took the advantage under Juvenility Act 2015.

Facts of the Case

In this case, the petitioner Om Prakash claims to be born on 4 Jan 1980 completed his studies from West Bengal, Jalpaiguri. According to the facts so presented, Om Prakash (petitioner) was in the year 1993 engaged as a gardener under late Col. Shyam Lal khanna with his family. Gradually he soon gains the trust of the members and after which they allowed him to do some other household work. Later very soon, they got doubt over him including his objectionable activity like theft by stealing money from violet. Observing this change in his activity the family on 14 Nov. 1994 took the unanimous decision to dispense his services.

After which the shocking incident took place, on 15 Nov. 1994 the petitioner who was entrusted with household work that is to serve bed tea to the family members of the late Col. Shyam Lal Khanna including his wife, son, and sister. In the morning time Col. Was out of the house for walking, whereby the petitioner took advantage of the timing and attacked firstly son of Col. He (petitioner) attacked late Col. son who was sleeping in his room, he inflicted blows over him using the sword to such an extent that his head was separated. Then after he next targeted the Col.’s sister, he on same day attacked her sharp-edged weapon in such a manner that she died on spot. And then next came to the late Col. Shyam Lal Khanna who after coming from morning walk who with the help of another partner in crime was also murdered. The Col. wife seeing the whole bloody scene locked herself inside the washroom, after which the petitioner tried to kill her also and also inserted certain wounds on her but she somehow saved herself, after which the petitioner ran away from the house. Another servant informed the police, after which the wife was rescued and she was able to narrate the incident. The police after 5 years were able to catch the culprit.

At the time of trial being held against the petitioner, he convicted in front of the police that he was of 20 years old at the time of the commission of the offense, and also he does have its own bank account which he uses in his own name, which itself proves that he was not juvenile. The trial court held him guilty after which he applied before High Court. The High Court division bench accepted the plea and thereafter upheld the lower court’s contention. After which the case went to Apex Court where also the decision of Capital Punishment for murdering 3 peoples was given. The petitioner after which applied for judicial review, while the case was pending he also applied for Mercy petition before President and Governor. After which the President exercising his highest executive power granted the Mercy petition and convicted him for life imprisonment in the year 2012.

After which the petitioner approached HC under article 226, stating that the order should be quashed as he was juvenile at the time of the commission of the offense and is, therefore, violation of his rights under Juvenile Justice (Care and Protection of Children) Act, 2015.

Held:

The Hon’ble HC hence dismissed the petition by stating, “thus, in view of the reasons assigned above, this Court is of the view that after the culmination of the proceedings by way of curative petition by an order of Hon’ble Apex Court on 06.02.2006, against an order of affirmation of conviction of a death penalty and with the dismissal of the curative petition by the Hon’ble Apex Court and after the expression of mercy/pardon by the President of India under Article 72 of Constitution has already been extended to the petitioner under Article 72 (1) (c) of the Constitution of India by his Order dated 08.05.2012, in such an eventuality, this Court is of the view that the stage for determination of juvenility and that too under an Act of 2015, which has been enforced much subsequent to the order of conviction will not be attracted.

Consequently, this Court is of the view that the present Criminal Writ Petition lacks merit and the same is accordingly dismissed. However, there would be no order as to costs.”

Submitted by

Sakshi Raje

Student Reporter