| Citation | (2005) 3 SCC 161 |
| Date of Judgment | 16th February 2005 |
| Court | Supreme Court of India |
| Case Type | Writ Petition No. Criminal (D) 134-36 of 2005 |
| Appellant | Zakarius Lakra |
| Respondent | Union of India |
| Bench | J. P V Reddi, J. A Mathur |
| Referred | Article 21 & Article 32 of Constitution of India |
FACTS OF THE CASE: –
The petitioners in this case who are actually the parents of the convict filed this writ petition in front of Hon’ble Supreme Court of India in order to pray for quashing the death sentence awarded to the convict on 15.11.1994.
According to the school certificate produced as ‘additional certificate’ along with this present petition, the petitioner’s date of birth is 04.01.1980. It is transpired along with the memorandum of appeal, the appellant did file two certificates dated 28.04.2001 and 02.08.2002 issued by school authorities in West Bengal to the same effect. But these certificates haven’t been noticed by the Bench while the hearing of this appeal was taking place.
The contention of appellant’s age was dealt by the trial court to which they replied: –
“His attention was drawn to the pass-book and the cheque-book and was apprised of the fact that the account could have been opened by him only if he had been major. Then he conceded the factum of majority on the date of occurrence.”
On the same contention the High court observed that: –
“He admittedly opened the bank account in Punjab National Bank at Dehradun on 9.3.1994. The passbook and the cheque book were exhibited in trial. The High Court observed that the appellant would not have been in a position to open the account unless he was a major and declared himself to be so.”
The conviction was affirmed by the decision of the Hon’ble Apex Court on 05.12.2002, the review petition arising out of it has been dismissed by the Hon’ble Apex Court on 04.03.2003
ISSUES: –
- Whether this writ is maintainable even when the appellant has been convicted by the Hon’ble Apex Court?
- If the writ is maintainable, then whether the appellant conviction can be commuted from death sentence to life imprisonment?
ARGUMENTS: –
The petitioner in this case had reffered to the decisions of Hon’ble Supreme Court in the cases of: –
- Raj Singh v/s State of Harayana
- Gopinath Ghosh v/s State of West Bengal
Where the plea of the offender of being juvenile was accepted in the court of law and appropriate relief was given.
Reference was also made to Ramadeo Chauhan vs State of Assma wherein J. R.P Sethi and J. Phukan made a concurring observation that: –
“The contentions raised and the prayer made are admittedly beyond the scope of review. This petition can be dismissed only on this ground. However, being the case of death sentence, we have decided to consider the whole matter in depth to ascertain as to whether the petitioner is entitled to the benefit of the Act or not. We have further opted to consider that even if he is not proved to be juvenile, can he be given the benefit of his age on the ground of his allegedly being on the borders of the age contemplated under the Act for the purposes of awarding him the alternative sentence of imprisonment for life.”
Whereas the dissenting opinion given by J. Thomas says that until and unless the room for doubt with a probability that the appellant must have been of juvenile age while committing the crime till then his right under Article 21 of the Constitution of India cannot be taken away.
The learned counsel from the side of appellant in the present case made it clear that the appellant is not looking for re-opening of the case but rather praying in front of Hon’ble Apex Court to commute the punishment from death sentence to life imprisonment.
JUDGEMENT: –
By filing writ petition and invoking Article 32 of the Constitution of India, once again the parents of the convict petitioner had sought to reagitate the question to be determined pertaining to the juvenility of the petitioner based on the school certificate of birth which was claimed to have been issued on 28.04.2001.
Though the issue stood settled upto the Hon’ble Apex Court with dismissal of Review Petition on 04.03. 2003. The writ petition was dismissed holding thereof that once the conviction has been affirmed by the decision of the Hon’ble Apex Court on 05.12.2002, and once again when the review petition arising out of it has been dismissed by the Hon’ble Apex Court on 04.03.2003, the subsequent writ petition filed by the parents of the convict petitioner invoking powers of the Hon’ble Apex Court vested in it under Article 32 of the Constitution of India was held by the Hon’ble Apex Court that it would not be maintainable. As, it would amount to conduct a retrial of a convict who has already been sentenced to undergo for a capital punishment by the courts of law.
But the Hon’ble Apex Court rendered that at a subsequent stage, held that at the most, if at all the petitioner of the writ petition could seek any remedy, that would be only by way of preferring a curative petition, as against the decision dated 5.12.2002 and 04.03.2003, as rendered by the Hon’ble Apex Court, in the review petition
REFERNCES: –
https://www.livelaw.in/pdf_upload/pdf_upload-363565.pdf
https://indiankanoon.org/doc/1340518/
This article is written by Sadhvi Sinha of Guru Gobind Singh Indraprastha University, intern at Legal Vidhiya.
