Punjab-Haryana High Court
Narinder Singh vs The State Of Punjab And Others on 23 September, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
Criminal Writ Petition No.72 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Writ Petition No.72 of 2013 (O&M)
Date of decision:23.09.2013
Narinder Singh ....Petitioner
Versus
The State of Punjab and others ....Respondents
CORAM:- HON'BLE MS. JUSTICE RITU BAHRI
Present:- Mr. Jatinder Kumar Khetarpal, Advocate
for the petitioner.
Mr. Amritpal Singh Gill, AAG, Punjab.
RITU BAHRI, J (ORAL)
This petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of an appropriate Writ in the nature of Habeas Corpus directing the respondents to release the detenue namely, Nirmal Singh @ Nima son of the petitioner from Central Jail, Ludhiana, as the detention of the detenue is contrary to the fundamental rights guaranteed under Article 21 of the Constitution of India and the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act').
The detenue was arrested on 27.4.1999. After the completion of trial, the Sessions Judge, Ludhiana, vide order dated 08.05.2003 held the detenue and another accused to be guilty of various offences punishable under Sections 302/364-A/201/120-B read with Section 34 IPC and sentenced him as under:- Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 2
Nirmal Singh alias Nima
i) Under Section 302 IPC Rigorous imprisonment for read with Section 34 IPC life and to pay Rs.5000/-
as fine and in default of payment of fine to further undergo rigorous imprisonment for six months.
ii) Under Section 364-A IPC Rigorous imprisonment for read with Section 34 IPC life and fine of Rs.5000/-
and in default of payment of fine to further undergo rigorous imprisonment for six months.
Iii) Under section 201 IPC Rigorous imprisonment for read with Section 34 IPC two years and fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for one month.
iv) Under Section 120-B IPC Rigorous imprisonment for read with Section 34 IPC three months and fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for one month.
The detenue filed Criminal Appeal No.500-DB of 2003 which was dismissed by the High Court vide judgment dated 24.03.2005, confirming the conviction and sentence awarded to the detenue by the Sessions Judge, Ludhiana. Thereafter, challenging the above said judgment of this Court, the detenue filed Special Leave Petition (Crl.) No.5035 of 2005 before the Hon'ble Supreme Court of India which was also dismissed.
Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 3
Upon notice, reply by way of affidavit of Surinderpal Khanna PPS, Superintendent, Central Jail, Ludhiana on behalf of respondents No.1, 2 and 3 has been filed, stating therein that in pursuance of the order dated 16.8.2013, verification of the Matriculation certificate of the convict was done. As per report of respondent No.3 dated 11.9.2013 (Annexure R-1) the date of birth of Nirmal Singh son of Narinder Singh is 14.09.1981. He was 17 years 06 months 12 days on the date of occurrence of offence i.e. 26.3.1999 so he was juvenile at that time as he had not completed the age of 18 years. As per Annexure R-II, the detenue has admittedly undergone 13 years 1 month and 16 days of sentence, Respondent No.3 initiated the case of the petitioner vide letter No.11842 dated 7.12.09 under the instructions of Government of Punjab dated 8.7.1991. However, the case of the petitioner was rejected by Respondent No.1 vide letter No.5/76/08-2G-7/771 dated 17.4.2009 (Annexure R-III), on the ground that he abducted and killed a nine years old child namely Harnam Singh along with his co- accused for a ransom of ` 10,00,000/-.
According to the learned counsel, the detenue was a Juvenile at the time of commission of the alleged offence on 26.3.1999 as he had not completed 18 years of age and was 17 years 6 months 12 days as his date of birth is 14.9.1981, as per Middle Standard Certificate and Matriculation Certificate issued by the Punjab School Education Board vide Anneuxres P3 and P4. Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 4
As per reply filed by the Superintendent, Central Jail, Ludhiana, matriculation certificate issued by the Punjab School Education Board, S.A.S.Nagar, Punjab is annexed as Annexure R-1. The date of birth of the son of the petitioner-Narinder Singh son of Chanan Singh was enrolled with 459850 of March, 1997, was found to be true. He had passed matriculation with 281 numbers and his date of birth as per gazette of board is 14.09.1981. This verification has been done on 11.09.2013 by the Superintendent Verification (Computer Cell), Punjab School Education Board.
As per Section 2(h) of the Juvenile Justice Act, 1986, a person who had attained the age of 16 years or above on the date of commission of offence was not a juvenile. The Juvenile Justice (Care and Protection) Act, 2000 and the subsequent amendments of 2006 inserted and substituted in the Act of 2000 read along with the Juvenile Justice (Care and Protection of Children) Rules, 2007, with retrospective effect, the age limit was raised from 16 years to 18 years.
The plea of juvenility can be raised at any stage as per Section 7-A of the Act. Section 7-A, Sub Clause 1 reads as under:-
7A. Procedure to be followed when claim of juvenility is raised before any Court- (1) 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 inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 5 person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
As per custody certificate Annexure R-II, he has undergone 13 years 1 month and 16 days of the sentence. As per Section 15 of the Act, he could be convicted for 3 years or maximum period of 3 years and hence he has undergone more than 3 years out of the maximum period prescribed under Section 15 of the Act. Section 15 of the Act reads thus:-
"15. Order that may be passed regarding juvenile.- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if t thinks so fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 6 pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well- being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well- being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
(2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 7 order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub- section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile i conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for he due supervision of the juvenile in conflict with law: Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institute on under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-
being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub- section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditio s of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 8 sureties, if any, and the probation officer." Provisions of the Juvenile Justice (Care and Protection of Children) Act, came into force for consideration in Abuzar Hossain @ Gulam Hossain vs. State of West Bengal 2012 (4) RCR (Criminal) 796, wherein it was held as under:-
i) A claim of the juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before the Supreme Court as well as after final disposal of the case. The claim of juvenility can be raised in appeal even if not pressed before the trial Court and can be raised for the first time before the Supreme Court though not pressed before the trial Court and in appeal Court.
ii) The material which can prima facie satisfy the Court for discharging the initial burden have been referred to Rule 12(3)(a)(i) to (iii), the credibility and acceptability of the documents like the school leaving certificate which after conviction would depend upon the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted and rejected.
iii) If such documents prima facie inspire confidence of the Court, the Court may act upon such documents for the purpose of Section 7-A and order an enquiry for Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 9 determination of the age of the delinquent.
iv) The Court where the plea of juvenility is raised for the first time should always guided by the objectives of the 2000 Act, cannot be defeated and persons who are entitled to get benefits of 2000 Act get such benefits. The Court should not be unnecessarily influenced by any general impression that in schools the parents or guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
v) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.
A perusal thereof shows that during the pendency of the appeal or even after the disposal of the case, High Court can after exercising the powers under the Act, can extend the benefit of juvenility. In the present case after verification of age from Punjab School Education Board. As per Annexure R-1, it is no longer disputed on the date of incident i.e. 26.3.1999 age of Nirmal Singh was 17 years 6 months 12 days and as per the amendment in the Juvenile Justice Act, he was less than 18 years of age. Kadian Savita 2013.10.08 16:15 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Writ Petition No.72 of 2013 (O&M) 10
As per guidelines issued by the Supreme Court, and the verification vide Anneuxre R-1 inspires the confidence of this Court and it can be considered in favour of the petitioner for the purpose of considering this case under Section 7-A of the Act.
In these circumstances, it is directed that the petitioner be released forthwith, if not required in any other case.
Criminal writ petition is allowed.
September 23, 2013 (RITU BAHRI)
savita JUDGE
Kadian Savita
2013.10.08 16:15
I attest to the accuracy and
integrity of this document
High Court Chandigarh