Varun v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **Crl.MC.No.2903 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN SC 1078/2011 OF SUB COURT,NEYYATTINKARA** ## **PETITIONER/4th ACCUSED:** **VARUN, AGED 27 YEARS S/O.RAMACHANDRAN, PRAKKATHERI VEEDU, PARASSALA, NEYYATINKARA, THIRUVANANTHAPURAM** **BY ADVS. SRI.ARUN BABU SRI.G.HARIPRASAD** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, -682 031 2 CIRCLE INSPECTOR OF POLICE, PARASSALA POLICE STATION, PARASSALA, THIRUVANANTHAPURAM-695 122** ## **PUBLIC PROSECUTOR SRI E.C.BINEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2903 OF 2020(C) 2** ## **ORDER** The 4th accused came up to issue a direction to the Assistant Sessions Court, Neyyattinkara to enquire into the question of juvenility raised by the petitioner in S.C.No.1078/2011 before proceeding further with trial of the case. It is submitted that the trial court did not conduct an enquiry as mandated under Section 7 of Juveline Justice ( Care and Protection of Children) Act, 2000 before proceeding with the trial. The alleged incident was happened on 9.10.2010. Hence governed by the Act of 2000. It was submitted that it is obligatory on the part of the court to enquire about minority before proceeding further with the trial of the offence alleged. The non-compliance of the requirement would vitiate the entire trial initiated, it was submitted. The question of juvenility can be raised at any stage of the proceedings and took support from the decision rendered in **Hari Ram v. State of Rajasthan and another [( 2009)** **13 SCC 211].** Further it was submitted that a duty cast ## **Crl.MC.No.2903 OF 2020(C) 3** upon all courts to seek evidence by obtaining certificate etc. and should act as _parens patriae_ being the guardian of minors who from their legal disability stand in need of protection. 2. There cannot be any dispute that the courts are bound to conduct an enquiry with respect to the question of juvenility as mandated under Section 7 of the Act. But that does not mean that it is a condition precedent applicable invariably in all cases to conduct an enquiry as mandated under Section 7 of the Act before proceeding further against the accused person. When no case of minority or juvenility taken up or brought up to the notice of the court, an enquiry as contemplated under Section 7 of the Act would be a futile exercise. The courts are duty bound to enquire about the minority or juvenility of an accused only when there is reason to believe that one among the accused is a juvenile. If any trial was commenced without noticing minority, Section 20 of the Act would come into play saving the trial already commenced. Section 20 in the Act of 2000 is extracted below: “ **20. Special provision in respect of** ## **Crl.MC.No.2903 OF 2020(C) 4** **pending cases** .- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued n that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.” 3. In the instant case, the question of minority or juvenility was not raised at the time of framing of charge and nothing mentioned with respect to the minority of accused No.4 in the final report submitted. Hence no enquiry was conducted under Section 7 and there was no occasion for conducting such an enquiry at that time. The question of minority was raised only during the course of trial i.e. at the time of examination of investigating officer as a witness to the prosecution and also at the time of examination of accused No.4 under Section 313 Cr.P.C. Since charge ## **Crl.MC.No.2903 OF 2020(C) 5** was framed and trial was commenced without raising the question of juvenility, the non-obstante clause in Section 20 of the Act of 2000 would come into play and trial already initiated can be proceeded with till the stage of entering into a conviction as against the juvenile. Thereon it shall record such conviction and instead of passing sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of the Act, as if it had been satisfied on enquiry under this Act that the juvenile has committed the said offence. Section 20 of the Act permits the court to proceed further with the trial as if this Act had not been passed till the stage of entering into a finding that the juvenile has committed an offence. 4. The legal position was settled by the Apex Court in **Bharat Bhushan v. State of H.P. [ AIR 2013 SC** **2018 : (2013) 11 SCC 274(SC)]** and laid down that Section 20 obliges the court concerned to record a finding whether the juvenile has committed any offence, if the Court finds the juvenile guilty, it is required ## **Crl.MC.No.2903 OF 2020(C) 6** under the above provision to forward the juvenile to the Board which would then pass an order in accordance with the provisions of the Act as if it had been satisfied on enquiry under the Act that the juvenile had committed an offence. The relevant portion of the judgment is extracted below for reference: “ The above makes it manifest that proceedings pending against a juvenile in any Court as on the date the 2000 Act came into force had to continue as if the 2000 Act had not been enacted. More importantly Section 20( supra) obliges the Court concerned to record a finding whether the juvenile has committed any offence. If the Court finds the juvenile guilty, it is required under the above provision to forward the juvenile to the Board which would then pass an order in accordance with the provisions of the Act as if it had been satisfied on enquiry under the Act that the juvenile had committed an offence.” 5. A constitution Bench of the Apex Court in **Pratab Singh v. State of Jharkhand and another ( AIR 2005 SC 2731)** had laid down the legal position that the ## **Crl.MC.No.2903 OF 2020(C) 7** question of juvenility of a person in conflict with law has to be determined by reference to the date of the incident and not the date on which cognizance was taken by the Magistrate. 6. When the trial was commenced without noticing minority or juvenility, it is permissible to proceed with the trial till entering into a finding of commission of offence by the juvenile. Hence there will be a direction to the court below to proceed with the trial against accused No.4 and in the event of entering into a finding of guilty for any offence, before passing sentence against him, the court shall conduct an enquiry as to his minority or juvenility in reference to the date of commission of offence and if it is found that he is a juvenile, instead of passing sentence, he shall be referred to the Board under Section 20 of the Act. Crl.M.C. is allowed in part accordingly. ## **Sd/-** ## **P.SOMARAJAN** msp ## **JUDGE** ## **Crl.MC.No.2903 OF 2020(C) 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 THE TRUE COPY OF THE ORDER DATED 02.12.2010 IN BA 7759/2010 OF THE HIGH COURT OF KERALA** - **ANNEXURE-A2 THE TRUE COPY OF THE RELEVANT PAGES OF THE CHARGE SHEET FILED BY THE 2ND RESPONDENT IN CRIME NO 947/2020 BEFORE THE JFCM-II, NEYYATTINAKARA** - **ANNEXURE-A3 THE TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER BEARING NO.H 498256 ISSUED ON 06.06.2008** - **ANNEXURE-A4 THE TRUE COPY OF THE AADHAR CARD OF THE PETITIONER BEARING NO.4916 7684 4399** - **ANNEXURE-A5 THE TRUE COPY OF THE RELEVANT PAGES OF STATEMENT OF THE PETITIONER TAKEN UNDER S.313 OF CR.PC IN SC 1078/2011** - **ANNEXURE-A6 THE NOTORISED COPY OF THE SSLC CERTIFICATE OF THE PETITIONER DATED 06/06/2008** - **ANNEXURE - A7 THE CERITIFIED COPY OF THE DEPOSITION OF THE INVESTIGATION OFFICER MR.JIJI TAKEN DATED 212/08/2018 IN SC 1078/2011 OF THE ASSISTANT SESSIONS JUDGE NEYYATINKARA** ## **RESPONDENTS EXHIBITS:NIL** **//TRUE COPY//** **P.A. TO JUDGE**