A.KABEER v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934 Crl.MC.No. 4522 of 2008 ( ) --------------------------CRL.MP.NO.1977/2008 IN SC.52/1998 of ADDITIONAL SESSIONS COURT,ALAPPUZHA PETITIONER(S)/ACCUSED: -------------------------------------- A.KABEER, AGED 29 YEARS,S/O.HAMSA, AMBANAKULANGARA VELI, MANNANCHERRY VILLAGE, ALAPPUZHA. BY ADVS.SRI.E.RAFEEK SRI.GOKUL DAS V.V.H. RESPONDENT(S)/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **“C.R.”** ## **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.4522 of 2008 -------------------------------------Dated this the 25[th] day of February, 2013.** ## **ORDER** Petition filed under Sec.482 of the Code of Criminal Procedure (hereinafter, “the Cr.P.C.”). Petitioner challenges the order passed by the learned Additional Sessions Judge, Alappuzha, whereby his plea that he was a juvenile at the time of commission of the alleged offence and therefore he was entitled to the benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 ( in short, “the Act”) was rejected on the reasoning that he had completed 18 years long before 01.04.2001, the date of commencement of the Act. Thereafter charge was framed by the court. 2. Facts in brief are the following: Petitioner/accused was the sole accused in S.C.No.52 of 1998 on the file of the Additional Sessions Court, Alappuzha. He is indicted for offences punishable under Secs.323, 307 and 302 of the Indian Penal Code (hereinafter, “the IPC”). He was once tried and convicted. He was sentenced to undergo imprisonment for life under Sec.302 IPC and appropriate punishments were imposed under other penal provisions of IPC. An appeal was filed before this Court as Crl.A.No.594 of 2001. This Court set aside the conviction and sentence of the petitioner and remanded the matter to the trial court for de novo trial. It was also directed that the trial court should 2 Crl.MC No.4522/2008 consider whether it was a fit case in which powers under Sec.319 of the Cr.P.C. could have been invoked to rope in other persons involved in the offence. In the course of de novo trial, after examining material witnesses, trial court arraigned PWs 1 and 3 therein as accused in the case. That order was challenged by those persons in Crl.R.P. No.393 of 2004 before this Court. That revision petition was allowed and they were exonerated from criminal liability. At the time of allowing the revision petition, this Court observed that it was open to the Investigating Officer to conduct further investigation under Sec.173(8) of the Cr.P.C. Pursuant to that, the Investigating Officer conducted further investigation and submitted an additional charge sheet in which one more accused was implicated. It is interesting to note that the accused thereafter implicated in the crime was none other than the person who sustained injuries in the incident and succumbed to the injuries. However, at present the petitioner is the accused facing trial. 3. The relevant aspects coming up for consideration in this matter are the claim of juvenility of the petitioner and its ramifications. Court below raised points regarding these aspects and found that the petitioner was a juvenile on the date of commission of offence. Nonetheless, it found that he was not entitled to get the protection of the Act, as he had completed 18 years much before 01.04.2001 and decided to frame charges against him. 4. Challenge in this petition, therefore, is the legality of the order passed by the trial court. 3 Crl.MC No.4522/2008 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. It will be apposite to consider the statutory provisions for clear understanding, before dealing with facts. 6. Sec.2(l) of the Act defines “juvenile in conflict with law” in the following words: “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence” 7. Sec.7A of the Act deals with the procedure to be followed when the claim of juvenility is raised before any court. It states that whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary so as to determine the age of such person. Proviso to Sec.7A of the Act clearly states that a claim of juvenility may be raised before any court (emphasis supplied) and it shall be recognised at any stage (emphasis supplied), even after disposal of the case. Such claim shall be determined in terms of the provisions of the Act and Rules. The claim can be raised and the determination has to be made even if the 4 Crl.MC No.4522/2008 juvenile has ceased to be so on or before the commencement of the Act. It is relevant to note that Sec.7A of the Act was inserted by Act 33 of 2006, which came into force on 22.08.2006. 8. Sec.14 of the Act deals with the power of Juvenile Justice Board, defined under Sec.2(c) of the Act, to hold enquiry into the charge levelled against a juvenile. Sec.15 of the Act enumerates the orders that may be passed regarding a juvenile after enquiry and on satisfying that the juvenile has committed an offence. Sec.16 of the Act prohibits imposition of certain punishments on a juvenile in conflict with law. 9. Another important Section in this context is Sec.20 of the Act. It deals with the special provision in respect of pending cases. It starts with a non-obstante clause and states that notwithstanding anything contained in the Act, all proceedings in respect of a juvenile pending in any court, in any area on the date on which the Act comes into force in that area, shall be continued in that court as if the Act had not been passed. If the court finds that the juvenile has committed an offence, it shall record such a finding and instead of passing any sentence in respect of the juvenile, forward him to the Juvenile Justice Board which shall pass orders in respect of him in accordance with the provisions of the Act. Explanation to Sec.20 of the Act makes it clear that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility shall be in terms of Clause (l) of Sec.2 of the Act. However, it is emphasised that this 5 Crl.MC No.4522/2008 determination shall be done even if the juvenile ceased to be so on or before the date of commencement of the Act (ie., 01.04.2001) and the provisions of the Act shall apply as if the said provision had been in force for all purposes and on all material times when the alleged offence was committed. 10. So it is clear that the claim juvenility can be raised by an accused at any time and the court in which the claim is raised is bound to consider the same in accordance with the aforementioned provisions. 11. Dispute regarding the date, with reference to which the age of a juvenile is to be determined, has been set at rest by the Constitution Bench of the Supreme Court in **Pratap Singh v. State of Jharkhand and another ((2005) 3 SCC 551)** . The Supreme Court in **Umesh Chandra v. State of Rajasthan ((1982) 2 SCC 202)** held that the relevant date for determining the age of the accused, who claims to be a child, is the date of occurrence and not the date of trial. But a two Judge Bench of the Supreme Court in **Arnit Das v. State of Bihar ((2000) 5 SCC 488)** held that the relevant date for the said purpose would be the date of production of the accused before the court and not the date of occurrence. This conflict was resolved in **Pratap Singh** 's case (supra) and held that the determination of the age of a juvenile has to be made with reference to the date of commission of the offence and not the date when the offender was produced before the competent authority/court. Subsequent to this decision, 6 Crl.MC No.4522/2008 Secs.2(l) , 7A, 20, etc. of the Act were amended by Act 33 of 2006. Statute itself now makes the position clear that a juvenile in conflict with law is a person who has not completed 18 years of age on the date of commission of offence. 12. Learned counsel for the petitioner submitted that the court below, after going through the oral evidence adduced by CWs 1 to 3 and relying on Exts.C1 to C4, found that the date of birth of the petitioner/accused is 22.05.1979. The date of occurrence in the case was on 03.02.1997. Court below, therefore, found that on the date of alleged incident, the petitioner was aged 17 years, 8 months and 8 days. Court below then entered into a specific finding that the question of juvenility of the petitioner was not pending consideration before any court on the commencement of the Act, ie., on 01.04.2001. So it was deduced that operation of Sec.20 of the Act did not arise in this case. These findings are seriously disputed by the learned counsel for the petitioner. 13. In order to refuse to apply the provisions in the Act, court below relied on the decisions rendered by the Apex Court in **Pratap Singh** 's case (supra) and **Bijendar Singh v. State of Haryana (2005 (2) KLT 743)** . 14. As mentioned above, amendments to the relevant provisions in the Act were made subsequent to the pronouncement of law by the Supreme Court in **Pratap Singh** 's case (supra). Therefore, question of considering the scope of amended Sec.20 of the Act can never arise in **Pratap Singh** 's case. 7 Crl.MC No.4522/2008 15. **Bijendar Singh** 's case (supra) was decided on 28.03.2005. The amendment to the various provisions of the Act, including Sec.20 of the Act, came into effect on 22.08.2006. Therefore, it is apparent that decision in **Bijendar Singh** 's case was rendered prior to the amendment of the Act by Act 33 of 2006. It is pertinent to note that the impugned order was passed by the learned Additional Sessions Judge on 22.10.2008, much after the amendment of the Act. It is evident that the learned Additional Sessions Judge failed to take note of the drastic changes brought out in the statute by Act 33 of 2006. 16. Learned counsel for the petitioner submitted that the court below failed to consider the unambiguous expressions in Sec.20 of the Act, wherein it is vividly mentioned that in all pending cases, including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, determination of juvenility shall be in terms of Clause (l) of Sec.2 of the Act. It is clearly mentioned that this has to be done, even if the juvenile ceases to be so on or before the date of commencement of the Act, ie., 01.04.2001. 17. In order to fortify this submission, decision rendered by the Supreme Court in **Hari Ram v. State of Rajasthan and another ((2009) 13 SCC 211)** was pressed into service. The law laid down therein is the following: “The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen 8 Crl.MC No.4522/2008 with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1-4-2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. ........” 18. The Apex Court in **Kalu @ Amit v. State of Haryana (2012 SAR (Criminal) 806)** reiterated the above proposition of law. 19. In the light of the unambiguous terminology employed in Sec.20 of the Act, coupled with the definition of “juvenile in conflict with law” embodied in Sec.2(l) of the Act and supported by the lucid statement of law by the 9 Crl.MC No.4522/2008 Supreme Court on the point, one can only reach at an irresistible conclusion that the court below went wrong in discarding the claim of juvenility made by the petitioner. Court below lost sight of the fact that at the time of determination of this question by it, the law was clear and definite. Juvenility of the petitioner should have been decided with reference to the date of commission of the offence and the claim could have been risen at any time as stated in Explanation to Sec.20 of the Act. Therefore, the finding of the court below is unsustainable. Hence it is hereby set aside. 20. Learned counsel for the petitioner submitted that the petitioner had pleaded for discharge in this case on various reasons. It is seen from the order that some of the reasons urged for claiming discharge are based on facts. This Court by invoking Sec.482 of the Cr.P.C. cannot decide vexed questions of fact. However, the question of discharge does not arise in this case, because a regular Sessions Court could not have charged the petitioner, since he was found to be a juvenile in conflict with law. Suffice it to say that the reasonings and findings of the court below on the non-maintainability of the plea of discharge raised by the petitioner deserve no scrutiny by this Court, since that will be an exercise in futility after finding that the petitioner is a juvenile in conflict with law entitled to be proceeded under the provisions of the Act. Learned counsel for the petitioner was apprehensive whether the juvenile will be precluded from raising a plea of discharge before the Juvenile Justice Board. Needless to say that the juvenile is entitled to raise all claims before the Juvenile 10 Crl.MC No.4522/2008 Justice Board, which the law permits him to do. The finding of the learned Additional Sessions Judge in that respect is non-est as it is rendered without jurisdiction. Therefore, the apprehension of the petitioner is devoid of any basis. In the result, - i. Petition is allowed. - ii. Impugned order is set aside. iii. Petitioner is found to be a juvenile in conflict with law on the date of commission of the alleged offence and he shall be tried before the Juvenile Justice Board having jurisdiction in this matter. iv. Learned Additional Sessions Judge, Alappuzha shall forward the juvenile with all materials and records to the concerned Juvenile Justice Board forthwith for being dealt with under the provisions of the Act. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**