Madras High Court
Sayeed .. Revision vs The State Rep. By on 31 May, 2018
Equivalent citations: AIRONLINE 2018 MAD 169
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.08.2017
PRONOUNCED ON : 31.05.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Criminal Revision Case No.839 of 2017
Sayeed .. Revision Petitioner/Accused
Versus
The State rep. by
The Inspector of Police,
All Women Police Station,
Panruti.
.. Respondent/Defacto-Complainant
Criminal Revision filed under Section 397 r/w Section 401 of Cr.P.C. praying to call for the entire records relating to the order dated 09.06.2017 made in Crl.M.P.No.20 of 2017 in Spl.S.C.No.12 of 2016 and consequently direct the Spl.S.C.No.12 of 2016 to be transferred to the Juvenile Justice Board, Cuddalore and to set aside the same.
For Revision Petitioner : Mr.C.Prasanna Venkatesh
For Respondent : Mr.C.Iyyapparaj,
Additional Public Prosecutor
O R D E R
This Criminal Revision Case has been filed against the order passed by the Court of District & Sessions Judge/Mahila Court, Cuddalore in Crl.M.P.No.20 of 2017 in Spl.S.C.No.12 of 2016, dated 09.06.2017.
2.The facts of the case in nutshell are as follows:
That the respondent/prosecution had filed the charge sheet against the revision petitioner under Section 3 read with 4 and 7 of The Protection of Children from Sexual Offence Act, 2012, hereinafter referred to as POCSO Act. According to the prosecution, the petitioner/accused, born on 27.02.1997 and therefore, he completed 18 years of age on 27.02.2015. The charge sheet was filed against the petitioner by the prosecution on the basis of the complaint of defacto complainant/victim, who made a complaint against the petitioner on 17.12.2015 based on which, a FIR was registered and on investigation, a charge sheet was laid against the petitioner.
3. In the said complaint, the defacto complainant/victim had categorically stated that the petitioner/accused had made the victim to believe that, he would marry the victim and on that strength, he had private affairs with the victim and with the result, the victim gave birth to a female child on 27.01.2014. Therefore, the revision petitioner/accused and the defacto complainant/victim, had lived together and just eight months prior to the date of the complaint, the revision petitioner/accused left the victim and she came to understand that the accused married another girl and that is the reason why the victim had given the complaint as stated above, based on which, the investigation was made and the charge sheet was laid. In this regard, the prosecution had filed a case in J.C.No.24 of 2016 under Section 34 of POCSO Act.
4. Whileso, the prosecution referred the matter to the Juvenile Justice Board of Cuddalore in J.C.No.24 of 2016 where, the Juvenile Board, by order dated 09.11.2016, declared that the offence alleged against the revision petitioner was a continuous one as till prior to eight months of the complaint since the revision petitioner had been together with the victim and the date of the complaint was on 17.12.2015 and the revision petitioner came to be major on 27.02.2015. Therefore, it can be arrived at that, during the last living together of both the revision petitioner/accused and the victim, till April 2015, the revision petitioner being an adulecent became major in the month of February 2015 and the alleged occurrence was stretched upto April 2015, the question posed before the Board was as to whether the alleged juvenile since became adult in half way through of the occurrence, can be decided accordingly. As the accused has become major in February 2015 and the alleged occurrence though was stretched upto April 2015, since he became major, the Board cannot decide the issue and accordingly, the Board, by the said Order dated 09.11.2016, directed transfer of the case to the Mahila Court, Cuddalore.
5. With the result, the case was transferred to the Mahila Court, Cuddalore which is a Special Court for POCSO Act, 2012 in Spl.S.C.No.12 of 2016. Before the said Special Court, the revision petitioner had moved a petition under Section 34 of the POCSO Act and seeks a direction from the Special Court, to refer the matter to the Juvenile Justice Board, Cuddalore to dispose of the same under the Juvenile Justice Act, 2000, on the strength of the alleged fact that the revision petitioner was minor during the alleged incident in the year 2013 as has been alleged by the victim in the complaint.
6. The said Special Court, after having considered this factual matrix of the case as well as the legal position, has come to a conclusion that the decision of the Juvenile Justice Board, Cuddalore was justifiable and found that the revision petitioner/accused, became major during the half way through of the continuous occurrence allegedly happened against the victim and therefore, the revision petitioner cannot be treated as a juvenile, for the purpose of trying the case and accordingly, the Mahila Court by the impugned order dated 09.06.2017, had rejected the said petition filed by the revision petitioner, stating that the Special Court has got jurisdiction to try the case. Against the said order of the Special Court dated 09.06.2017 made in Crl.M.P.No.20 of 2017 in Spl.S.C.No.12 of 2016 passed by the District and Sessions Judge/Mahila Court, Cuddalore, the present revision case has been filed.
7. I have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor appearing for the respondent side.
8. The only issue raised before this court in this revision case is, as to whether the decision rendered by the Special Court confirming the view taken by the Juvenile Justice Board, Cuddalore, stating that, since the occurrence/offence was continuous one and at the time of possible occurrence/offence both these revision petitioner and the victim had been together and at that time, since the revision petitioner had became major, even according to the transfer certificate and birth certificate of the revision petitioner, the issue could be decided by the Special Court itself, is correct or not?
9. It was the argument advanced by the learned counsel appearing for the revision petitioner that, even according to the complaint given by the alleged victim, she alleged that, only in the year 2013, the revision petitioner compelled her to have illicit intimacy with the revision petitioner and based on such illicit intimacy, no doubt, the victim became pregnant and she gave birth to a female child on 27.01.2014. Thereafter, there was no allegation against the revision petitioner. The revision petitioner and the victim had been together and lived as one family. When that being so, the alleged occurrence/offence was in the year 2013 and during that time, certainly, the revision petitioner was minor and therefore, the case in hand should be considered only by Juvenile Justice Board of Cuddalore, which has erroneously transferred the matter to the Special Court, who in turn also erroneously decided the issue against the revision petitioner.
10. Learned counsel appearing for the petitioner would further submit that, there can be no proof to show that the petitioner had involved in the offence as alleged in the charge, after he became major in February 2015 and assuming, without admitting that the illicit intimacy between the revision petitioner and the victim during the year 2013 would amount to the reason for the charge against the revision petitioner, that shall be treated and decided by only the Juvenile Justice Board as the revision petitioner was certainly minor during that period of occurrence. Therefore, the learned counsel for the petitioner would submit that, the decision taken by the Special Court taking the same line of the decision of the Juvenile Justice Board is absolutely unjustifiable and unlawful and therefore, interference on the said impugned order is very much required.
11. Per contra, Mr.C.Iyyapparaj, learned Additional Public Prosecutor by relying upon two decisions of the Honourable Apex Court, would submit that, it is imperative as to whether the offender was minor at the time of the occurrence. If the same is a continuous one and even the said occurrence falls within a period where, the offender became major, certainly, the charge can be tried only by the regular Court, here in this case, the Special Court for POCSO Act cases. In support of his contention, the learned Additional Public Prosecutor has relied upon the following decisions of the Honourable Apex Court. The first judgement relied by him was, in the matter of Sri Ganesh vs. State of Tamil Nadu & Another reported in 2017(1) L.W.(Crl.)426 and the second decision was in 2017(1) L.W.(Crl.)610 in the matter of Mukarrab etc., vs. State of Uttar Pradesh.
12. I have gone through the materials placed before this Court as well as the judgements cited by the learned Additional Public Prosecutor.
13. The charge against the petitioner is under Section 3 read with Section 4 of the POCSO Act. The charge under Section 3 is a punishable offence under the heading 'Penetrative Sexual Assault'. The victim had given a complaint on 17.12.2015 against the revision petitioner which reads thus:
ehd; nkw;fz;l Kfthpapy; trpj;J tUfpnwd;. ehd;9-k; tFg;g[tiu v';f rpj;jp yjh tPl;Ly; ,Ue;J te;njd;. v';f bjUitr; nrh;e;j iraJ vd;gth; vd;id !;Tyf;F tUk; nghJ ngr tUthh;. ehd;gae;J bfhz;L ngrhky; ngha; tpLntd;. XU ehs; iraJ J}f;f khj;jpiufs; ifapy; itj;J eP vd;id fhjypf;fhtpl;lhy; ehd; J}f;f khj;jpiuia rhg;gpl;L brj;J tpLtjhf Twp kpul;odhh; ehDk; iraJld; gHf Muk;gpj;njhk;. ,e;j tprak; v';f tPl;oy; bjhpe;J vd; gog;ig epWj;jp tpl;L Mah tPL nfhl;lf;Fg;gj;jpw;F mDg;gpit tpl;lhh;fs;. XU thuk; Mah tPl;oy; ,Ue;njd;. gpd;g[ vd;ida[k; v';f mk;khita[k; jdpahf ghl;lhk;ghf;fj;jpy; tPLg;ghh;j;J Fo itj;jhh;fs;. gf;fj;J tPl;Lf;F tug;nghf ,Ue;jhh;. gf;fj;J tPl;Lf;fhuhplk; vdf;F xU rpd;d nghd; th';fp ehd; ngRtjh;fhf bfhLj;J tpl;L ngha;tpl;lhh; ehd; iraJ nghdpy; ngrpf;bfhz;L ,Ue;njhk; jpUk;gt[k; gpur;ridahfp eh';fs; tPl;ilfhypg; gz;zpl;L Mah tPl;ow;F nghfptpl;nlhk;. ehd;khkh nghdpy; iraJ ,lk; ngrpf;bfhz;L ,Ue;njd;. jpUk;g ghl;lhk;ghf;fk; te;J tPL ghh;j;J te;J ,Ue;njhk;. 4-k; khjk; 2013 tUlk; vd;id fl;lhagLj;jp tPl;oypUe;J Tl;of;fpl;L ngha; ehuhazg[uk; vd;w Chpy; tPLghh;j;J itj;J fl;lhagLj;jp vd;dplk; gyKiw clYwt[ itj;Jf;bfhz;lhh;. mjpy; ehd; fh;g;gkhndd;. 27.01.2014-k; njjp vdf;F xU bgz; Fhe;ij gpwe;jJ ntW tHpapy;yhky; ehd; mtUld; ,Ue;J te;njd; Rkhh; 8 khjj;jpw;F Kd;g[ tPlil tpl;L ngha; tpl;lhh;. gpwF tPl;ow;F tutpy;iy. ehd; mtiu njoanghJ mtUf;F ntW xU bgz;qlz; jpUkzk; ele;jjhf bjhpe;J vd;id Vkhw;wp fl;lhagLj;jp clYwt[ bfhz;L fh;g;gkhfp tpl;L Fhe;ijia bfhLj;J vd;id Vkhw;wpa iraJ kPJ jf;f eltof;if vLf;Fk;go nfl;Lf;bfhs;fpnwd;.
14. Only pursuant to the said complaint, case was investigated by the prosecution and final report was filed charging the petitioner under Section 3 and 4 of the POCSO Act, 2012. In that circumstance, the issue was decided by the Juvenile Justice Board as to whether the case was to be decided by the Juvenile Justice Board or by the regular Court. In this regard, the main issue is the age of the revision petitioner. According to the transfer certificate issued by Government High School, Melpattampakkam-607104, the petitioner's date of birth is 27.02.1997. That apart, the extract of the birth certificate issued by the Government of Tamil Nadu also discloses that the date of birth of the petitioner is 27.02.1997 as the petitioner born at Government Hospital, Nellikuppam Road, Cuddalore which was registered on 28.02.1997 with registration No.539/1997/03. Therefore, it became crystal clear that there can be no dispute on the date of birth of the revision petitioner/accused.
15. On the basis of the date of birth, the age of the revision petitioner can be easily found out as he became major on 27.02.2015 on his completion of 18 years. As per the complaint given by the victim, there had been illegal relationship on compulsion or false promise by the revision petitioner against the victim during the year 2013 with the result, the victim gave birth of a female child on January 2014. No doubt, during the said occurrence in the year 2013, the revision petitioner was minor as he became major only on 27.02.2015. However, in the complaint, the victim had stated specifically that after he gave birth to a female child on 27.01.2014 she had been continuously living with the revision petitioner as she had no other option and such living, according to the victim, was continued till prior to eight months from the date of the complaint, i.e., 17.12.2015. Therefore, according to the statement of the victim, there had been relationship between the revision petitioner and the victim till April 2015 i.e., atleast well after two months of he becoming major.
16. In this regard, whether the occurrence/offence specifically mentioned in the complaint by the victim alone shall be taken into account for the purpose of determining as to whether the accused is a minor and based on which, he should be tried by the Juvenile Justice Board, or not is concerned, the judgements cited by the learned Additional Public Prosecutor in 2017 (1) L.W.(Crl.) 426 referred to above can very well be pressed into service.
17. In the said judgement, a similar issue was confronted before the Apex Court where, the Apex Court after having taken into account the law laid down by the Apex Court in this regard in the matter of Ashwani Kumar Saxena vs. State of Madhya Pradesh reported in 2012 (9) SCC 750 [equivalent 2013(1) L.W.(Crl.) 190] has given its categorical finding that, if the allegation of the prosecution were that the offence under Section 376 of IPC was committed on more than one occasion in order to see whether the appellant was juvenile or not, it is enough to see, if he was juvenile on the date when the last of such incident had occurred.
18. In order to appreciate the facts and circumstances of the said case and the decision rendered therein by the Honourable Apex Court, the following relevant paragraphs of the said judgement are extracted hereunder:
9. Appearing for the appellant in support of the appeal, Mr. A. Ramesh, learned Senior Advocate submitted that the determination of age of a juvenile has to be principally on the basis of documentary evidence and only in the absence of such documentary evidence, medical opinion could be pressed into service. In his submission the High Court was completely in error in setting aside the view taken by the trial court and in remitting the matter for fresh consideration. Reliance was placed on the judgment of this Court in Ashwani Kumar Saxena v. State of Madhya Pradesh[1]. On the other hand, Mr. Aditya Kumar Choudhary, learned Advocate appearing for the complainant relied on decision of this Court in Karthi alias Karthick v. State of Tamil Nadu[2] and submitted that the High Court was justified in remitting the matter for fresh consideration.
10. The law on the point is well settled and succinctly stated in Ashwani Kumars case (supra) where this Court after taking into consideration relevant statutory provisions observed in paragraphs 32 to 34 as under:-
32. Age determination inquiry contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
33. Once the court, following the above mentioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.
11. In the present case the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the date of birth of the appellant was 19.10.1991. During the course of its judgment the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. Further, if the allegations of the prosecution are that the offence under Section 376 IPC was committed on more than one occasion, in order to see whether the appellant was juvenile or not, it is enough to see if he was juvenile on the date when the last of such incidents had occurred. The trial court was therefore justified in going by the assertions made by the victim in her cross examination and then considering whether the appellant was juvenile on that date or not.
19. If the said principles applied to the present case, it is enough to see that, the accused was juvenile on the date when the last of such incident had occurred. The revision petitioner herein also can be brought in within the said definition as held by the Honourable Apex Court in the judgement cited supra. To state that the last of such occurrence or incident taken place since upto April 2015 whereas, the revision petitioner became major in February 2015 itself, it can be construed safely that the revision petitioner had became major during a part of the offence committed or occurrence taken place.
20. It was argued by the learned counsel appearing for the revision petitioner that, it was not the next day where the allegation made by the victim in the complaint dated 17.12.2015. Though it was before eight months from the date of the complaint, when the revision petitioner allegedly left the victim, where there had been any occurrence of the offence punishable under Section 3 of the POCSO Act was not specifically mentioned, it cannot be presumed by the Court that during that period i.e., between February and April 2015, there could had been offence committed by the revision petitioner punishable under Section 3 and 4 of the POCSO Act and therefore, based on such surmise, the age of the petitioner cannot be taken into account.
21. The said issue or argument raised by the learned counsel for the revision petitioner can easily be met for the simple reason that the offence punishable under Section 3,5,7 and 9 of the POCSO Act are concerned, there is a presumption clause available under Section 29 which reads thus:
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
22. When there had been a prosecution for offence punishable under Section 3, 5, 7 and 9 of the POCSO Act, the Special Court concerned, shall presume that such person has committed the said offence unless the contrary is proved. Therefore, once a charge has been laid against the person under the aforesaid provisions of the POCSO Act, the actual presumption shall be against the accused unless the accused proved the contrary. Therefore, the burden of proving the contrary against the statutory presumption under Section 29 of the POCSO Act shall lie only on the shoulder of the accused. Unless he clear the same by disproving such presumption, the statutory presumption shall always be against such accused.
23. Therefore, the said arguments of the learned counsel appearing for the revision petitioner to state that there has been no specific allegation on the complaint of the victim to state that the petitioner had committed the offence punishable under Section 3 and 4 of the POCSO Act between February 2015 and April 2015, cannot be taken as a valid defence to treat the accused/revision petitioner herein as a juvenile, as the said issue can be decided only after completion of trial in view of the statutory presumption available under Section 29 of the Act.
24. This Court has expressed the aforesaid view because of the fact that, the victim, in the complaint dated 17.02.2015, has specifically stated that after she gave birth to a female child on January 2014, she had been living together with him for some time and such time was eight months were prior to the date of complaint. Therefore, during that period i.e., between February 2015 and April 2015 whether, there had been any occurrence or offence on the side of the revision petitioner punishable under Section 3 and 4 of the POCSO Act has to be decided only after trial and therefore, at this juncture, on the strength of the presumption, especially in the context of Section 29 of the POCSO Act, the decision rendered by the Special Court treating the revision petitioner as major during that part of the occurrence/offence taken place, is perfectly correct and valid and sustainable one and therefore, the said finding, in the opinion of this Court, cannot be interfered with.
25. In view of the aforesaid discussions, this Court is of the considered view that the order impugned needs no interference from this Court as it is fully justifiable and sustainable also. Therefore, the revision case fails accordingly, it is dismissed.
31.05.2018
Index :Yes/No
Speaking order/Non-speaking order
smi
To
1.The District & Sessions Judge,
Mahila Court,
Cuddalore.
2. The Inspector of Police,
All Women Police Station,
Panruti.
3. The Public Prosecutor,
High Court, Madras.
R.SURESHKUMAR, J.
smi
Pre-Delivery Order in
Crl. R.C.No.839 of 2017
31.05.2018