Sekhar @ Raji v. State of Kerala (Crl.M.C. No. 5081 of 2013; SC 249/1998, Addl. Sessions Court, Fast Track II, Palakkad)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939 Crl.MC.No. 5081 of 2013 --------------------------------SC 249/1998 of ADDL.SESSIONS COURT (FAST TRACK-II), PALAKKAD DATED 03-122007 PETITIONER/ACCUSED NO. 4: -------------------------------------- SEKHAR @ RAJI, AGED 45 YEARS, S/O. VENKITESAN, 100, THANIKACHALAM STREET, JAGADAMBIKANAGAR, PADI, MADRAS, TAMIL NADU. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) ## RESPONDENT(S)/RESPONDENTS/DEFACTO COMPLAINANT AND STATE: -------------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.-682031 BY PUBLIC PROSECUTOR SMT. MAYA M.N. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5081 of 2013 --------------------------- ## APPENDIX ## ANNEXURES ----------------------- A:-TRUE COPY OF THE ORDER IN CRMP NO 141/2007 RENDERED AS COMMON ORDER IN CRMP NOS 3998/2006, 4219/2006 AND 141/2007 IN SC NO 249/1998 OF COURT OF ADDL.SESSIONS JUDGE(FAST TRACK NO II)PALAKKAD DTD 3/12/2007 /True copy/ P.S.To Judge ## **“CR”** ## **A.M.BABU, J.** - - - - - - - - - - - - - - - - - - - - Crl.M.C.5081 of 2013 - - - - - - - - - - - - - - - - Dated : 31[st] May, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** 1.Petitioner is the 4[th] accused in S.C.249/1998 on the file of the court of session, Palakkad division. The case is pending before the additional sessions judge-IV. There are altogether four accused persons in the case. They were charged under Secs 201, 302 and 392 of IPC read with IPC 34. The offences were allegedly committed on 18.10.1992. All the accused persons filed applications before the court below requesting to transfer the case to the Juvenile Justice Board. They contended that they were juveniles on the date of the incident. The application filed by the petitioner was Crl.M.P.141/2007. - 2.The learned additional sessions judge conducted an inquiry. Three witnesses were examined and five documents were marked in the inquiry. The learned **Crl.M.C.5081/13** 2 judge found the petitioner and others juveniles in conflict with law as they were under 18 years of age on the date of the incident. But their request to transfer the case to the Juvenile Justice Board was refused. The learned judge stated that the case should be tried in his court in view of Sec.20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 2000 Act). The refusal to transfer the case to the Juvenile Justice Board is challenged by the petitioner. He requests to quash the impugned order under Sec.482 of Cr.P.C. He requests to transfer the case to the Juvenile Justice Board. - 3.Heard the learned counsel for the petitioner. Heard the learned public prosecutor. - 4.The incident was on 18.10.1992. The court below accepted the date of birth of the petitioner to be 16.7.1975. He was found to be 17 years, 3 months and 2 days old on the date of the incident. Nobody challenged the said finding. The finding has **Crl.M.C.5081/13** 3 become final. - 5.The juvenile justice law in force on the date of the incident was the Juvenile Justice Act, 1986 (hereinafter referred to as the 1986 Act). A person of male gender was a juvenile under the 1986 Act only if he had not attained the age of 16 years. Being persons above the age of 16 years on the date of occurrence of the incident, the petitioner and others were to be tried by the court of session. Therefore the case was committed to the court of session and the said court took cognizance of the offences against the petitioner and others. - 6.But the case was pending when the 2000 Act came into force with effect from 1.4.2001. Clauses (k) and (l) of Sec.2 of the 2000 Act defines 'juvenile' and 'juvenile in conflict with law' respectively. A person who has not completed eighteenth year of age is a juvenile or child. A juvenile who is alleged to have committed an offence and has not completed eighteenth year of **Crl.M.C.5081/13** 4 age as on the date of commission of such offence is a juvenile in conflict with law. On the date of the incident the petitioner was not a juvenile under the 1986 Act, but he was a juvenile in conflict with law under the 2000 Act. Sec.20 of the 2000 Act contains a special provision in respect of pending cases. The explanation to Sec.20 provides that in all pending cases the determination of juvenility shall be in terms of Sec.2(l) of the 2000 Act even if the juvenile ceases to be so on or before the date of commencement of the said Act. It is further provided in the same explanation that the provisions of the 2000 Act shall apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. As the case against the petitioner was pending on the date of commencement of the 2000 Act, he shall be treated as a juvenile in conflict with law within the meaning of Sec.2(l) of the said Act. 7.Can the court of session try the petitioner who **Crl.M.C.5081/13** 5 is a juvenile in conflict with law ? This is the crucial question. Sec.20 of the 2000 Act directly answers the question. It provides that notwithstanding anything contained in the 2000 Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which the said Act comes into force in that area shall be continued in that court as if the 2000 Act had not been passed. Therefore the court of session before which the case was pending on the date of commencement of the 2000 Act shall be the court to try the petitioner. The case against him cannot be transferred to the Juvenile Justice Board to inquire into the allegations against him. The refusal of the learned additional sessions judge to transfer the case to the Juvenile Justice Board is only to be upheld. 8.Sec.7 of the 2000 Act states the procedure to be followed by a magistrate who is not empowered to exercise the powers of a Juvenile Justice Board. Any person brought before such a magistrate, other than for giving evidence, shall be forwarded to **Crl.M.C.5081/13** 6 the competent authority under the 2000 Act if the magistrate is of the opinion that the person concerned is a juvenile or a child. Sec.7A of the 2000 Act states what should a court do if the court is of the opinion that an accused person was a juvenile on the date of commission of the offence or a claim of juvenility is raised before the court. The court shall hold an inquiry and record a finding whether the person concerned is a juvenile or a child. If the court records a finding that the person was a juvenile on the date of commission of the offence, he shall be forwarded to the Juvenile Justice Board for passing appropriate orders. Therefore, according to the learned counsel for the petitioner, the petitioner should be forwarded to the Juvenile Justice Board. It is true that the explanation to Sec.20 of the 2000 Act states that to a juvenile referred to in the explanation the provisions of the said Act apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. But it cannot be contended that in view of the **Crl.M.C.5081/13** 7 explanation to Sec.20 the provisions of Sec.7 or, as the case may be, Sec.7A would apply. The provisions of Sec.7 or 7A of the 2000 Act do not apply to a case pending in a court on the date of commencement of the said Act. It is so because of the non obstante clause of Sec.20. In view of the non obstante clause, the provisions of Sec.20 alone would apply to a pending case and the provisions of Sec.7 or Sec.7A would not and could not apply. The case shall be continued in the court in which it was pending as if the 2000 Act had not been passed. It is impossible to agree with the learned counsel for the petitioner that the case of the petitioner should be transferred to the Juvenile Justice Board. 9.The learned counsel for the petitioner relied on the decision of this court in Kabeer v. State of Kerala (2013 (2) ILR Ker 163). That was also a case where the petitioner therein was not a juvenile under the 1986 Act, but a juvenile under the 2000 Act and the case was pending when the latter Act came into force. It was held that in **Crl.M.C.5081/13** 8 view of the explanation to Sec.20 of the 2000 Act the determination of the juvenility shall be in terms of Sec.2(l) of the said Act. I place reliance on the said decision for my conclusion that the petitioner herein is a juvenile in conflict with law although he was not a juvenile under the 1986 Act. 10.But in Kabeer's case (supra) the learned single judge directed the court of session to forward the juvenile to the Juvenile Justice Board. Therefore the learned counsel for the petitioner requests to direct the court below to forward the petitioner to the Juvenile Justice Board as was done in Kabeer's case (supra). The request cannot be granted. The apex court states at paragraph 24 of the judgment in Mumtaz @ Muntyaz v. State of U.P (AIR 2016 SC 3151) as follows : It is thus well settled that in terms of Sec.20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him **Crl.M.C.5081/13** 9 but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. In Pratap Singh v. State of Jharkand (AIR 2005 SC 2731) the constitution bench holds that Sec.20 refers to cases where a person has ceased to be a juvenile under the 1986 Act, but has not yet crossed 18 years, then the pending case shall continue in that court as if the 2000 Act had not been passed. Therefore, the case against the petitioner should continue in the court of session as the case was pending in that court when the 2000 Act came into force. 11.But Sec.20 of the 2000 Act does not permit the court in which the case should continue to pass any sentence on the juvenile if he is found guilty of any offence. If such court finds the juvenile guilty of any offence, it shall record such a finding as Sec.20 states. But the section prohibits passing of any sentence on the juvenile who is found guilty. Instead, the court shall forward him to the Juvenile Justice Board. It is for the Board to pass orders in respect of the **Crl.M.C.5081/13** 10 juvenile. The Board shall pass orders in accordance with the provisions of the 2000 Act as if the Board had been satisfied on inquiry under the said Act that the juvenile has committed the offence. The words “as if it (the Board) had been satisfied on inquiry under this Act that a juvenile has committed the offence” appearing in Sec.20 are also very important. Those words make it abundantly clear that in cases where Sec.20 applies the decision whether the juvenile committed the offence alleged against him should be taken by the court, and not the Board. - 12.The 2000 Act has been replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016). Sec.25 of the new Act reads thus : Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted. In view of Sec.25 the case against the petitioner 11 ## **Crl.M.C.5081/13** should be continued in the court of session itself even after the commencement of Act 2 of 2016. - 13.I shall conclude. The case, S.C.249/1998, shall be continued in the court of session, Palakkad division. The provisions of chapter XVIII of Cr.P.C shall be followed. If the juvenile is found guilty of all or any of the charges against him, the learned additional sessions judge shall forward the juvenile to the Juvenile Justice Board. The Crl.M.C deserves to be dismissed. - 14.Dismissed. Sd/- **A.M.BABU Judge** Mrcs/24.5 /True copy/ P.S.To Judge