Punjab-Haryana High Court
Sunita vs State (U. T. Chandigarh) on 4 August, 1998
Equivalent citations: 1998CRILJ4249
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Agga Rwal, J.
1. This is an appeal filed by Sunita (hereinafter described as 'the appellant') directed against the judgment and the order of sentence passed by the learned Sessions Judge, Chandigarh dated 19-9-1994. The learned trial Court held the appellant guilty of the offence punishable under section 302 Indian Penal Code and sentenced her to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-. In default of payment of fine, she was to undergo further rigorous imprisonment for one year.
2. The appellant had been tried for having committed the murder of Sarla by sprinkling kerosene on her and then setting her on fire on 16-12-1989 at 11.00 a.m. in her house in Bapu Dham Colony, Union Territory, Chandigarh. Sarla had died after making a dying declaration. After investigation and collecting all other evidence, report under section 173, Code of Criminal Procedure was submitted. The learned trial Court as referred to above, held the appellant guilty of the said offence and passed the impugned judgment and the order of sentence.
3. At the time of arguments, learned counsel for the appellant raised only one pertinent argument. He urged that the appellant on the date when the offence was committed, was a juvenile and, therefore, she could not have been sentenced rigorous imprisonment for life. The said sentence has been passed contrary to the provisions of the Juvenile Justice Act, 1986.
4. On 12-3-1998 when this argument had been advanced, we had directed the learned Sessions Judge, Chandigarh to hold and enquiry and report if on the date of the incident, the appellant was a juvenile or not. With this direction the file was remitted to the Sessions Judge, Chandigarh. The Sessions Judge, Chandigarh submitted the report dated 12-5-1998 and it was mentioned that on the date of the incident, the present appellant was between the age of 15-16 years or in other words, she was a juvenile in terms of Section 2(h) of the Juvenile Justice Act, 1986. There was no objection filed to the said report. In other words, it was accepted by the appellant and the State.
5. The Juvenile Justice Act, 1986 (for short 'the Act') has been enacted to provide for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. Section 5 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, the State Government by notification in the official gazette may constitute one or more Juvenile Courts for discharging the duties in relation to the Act for juveniles. Sub-sections (2) and (3) of Section 5 of the Act refers as to who can be comprising of Juvenile Courts. Section 6 explains the procedure in relation to Boards and Juvenile Courts and Section 7 relates to the powers of Board and Juvenile Court. It is patent that the said Act is a self-contained Code and Provides a complete machinery for the trial of juveniles.
6. Sub-sections (2) and (3) of Section 7 of the Juvenile Justice Act, 1986 read :-
"7(2). Where no Board or Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercised in that area, only by the following, namely :-
(a) the District Magistrate; or
(b) the Sub-Divisional Magistrate; or
(c) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be.
(3) The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise."
It was pointed out during the course of arguments that at Chandigarh no Juvenile Court has been established. In the absence of such a Court, the powers of the Juvenile Court can be exercised by the District Magistrate or even by a Judicial Magistrate. Under sub-section (3) of Section 7, such powers can be exercised by the Court of Session when proceedings come before it in appeal, revision or otherwise. In normal circumstances, the expression 'otherwise' would draw its strength and colour from the preceding words namely 'appeal or revision'. But in the context in which it has been used in sub-section (3) of Section 7 of the Act, it is clear that herein in the absence of Juvenile Court, when case is triable by the Court of Session and is committed to the Court of Session, it could be tried by that court.
7. Confronted with this position, it had been urged that in any case the appellant could not have been convicted and sentenced for rigorous imprisonment because she was a juvenile. Sub-sections (1) and (2) of Section 21 and Section 22 of the Act holds the key to this controversy and reads :-
"21(1). Where a Juvenile Court 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 Juvenile Court may, if it so thinks fit, -
(a) allow the juvenile to go home advice or admonition;
(b) 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 that Court may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(c) 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;
(d) make an order directing the juvenile to be sent to a special home, -
(i) in the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years;
(ii) in the case of any other juvenile, for the period until he ceases to be a juvenile :
Provided that the Juvenile Court 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 :
Provided further that the Juvenile Court may, for reasons to be recorded, extend the period of such stay, but in no case the period of stay shall extend beyond the time when the juvenile attains the age of eighteen years, in the case of a boy, or twenty years, in the case of a girl;
(e) order the juvenile to pay a fine if he is over fourteen years of age and earns money.
(2) Where an order under clause (b), clause (c) or clause (e) of sub-section (1) is made, the Juvenile Court 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 delinquent juvenile 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 the due supervision of the delinquent juvenile :
Provided that if at any time afterwards it appears to the Juvenile Court on receiving a report from the probation officer or otherwise, that the delinquent juvenile has not been of good behaviour during the period of supervision or that the fit institution 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 delinquent juvenile to be sent to a special home.
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22. Orders that may not be passed against delinquent juvenile. - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security :
Provided that where a juvenile who has attained the age of fourteen years has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious a nature of that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send his to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Juvenile Court, may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.
(2) On receipt of a report from a Juvenile Court under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on such conditions as it thinks fit :
Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed."
It is abundantly clear from aforesaid that having regard to the nature of the offence and circumstances, a juvenile could remain under the supervision of a probation office. He could be sent home after admonition, could be released on probation of good conduct or even sent to special home. Under sub-section (1) of Section 22, if the Court is satisfied that offence committed is so serious or that the conduct of the juvenile has been such, then he may be directed to be kept in safe custody in such place and manner as it thinks fit. He has to send the case for orders of the State Government.
8. Reference in this regard may be made to the decision of the Supreme Court in the case of Bhoop Ram v. State of U.P., AIR 1989 SC 1329 : (1990 Cri LJ 2671). In the cited case the accused was below 16 years of age on the date of offence. In other words, he was a child under the U.P. Children Act, 1952. He had wrongly been sentenced to imprisonment instead of being sent to the approved school. He had crossed the age of detention for being sent to approved school in the meantime. The Supreme Court held that he should be released forthwith. In paragraph 8 it was held (at page 2673 of Cri LJ) :-
"Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P., (1981) 4 SCC 149 : AIR 1982 SC 685 : (1982 Cri LJ 1000) that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under S. 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed."
Same question re-appeared subsequently in the case of Krishan Kant v. State of U.P., AIR 1994 SC 104 : (1994 Cri LJ 148). Herein also at the time when the incident took place, the accused was about 15 years of age. By the time the appeal came up before the Supreme Court, he was 30 years of age. It was held that there was no question of sending him to the approved school under the U.P. Children Act. He was accordingly directed to be released forthwith. The Supreme Court held at page 149 (of Cri LJ) :-
"At the time of granting special leave, Jagdish appellant produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant Krishan Kant produced horoscope which showed that he was 13 years of age at the time of occurrence. So far as appellant Pradeep is concerned a medical report was called for by this Court which disclosed that his date of birth as January 7, 1959 was acceptable on the basis of various tests conducted by the medical authorities.
It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under S. 302/34 of the Act.
Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms."
More recently in the case of Bhola Bhagat v. State of Bihar, AIR 1998 SC 236 : (1998 Cri LJ 390) the Supreme Court held that when plea is raised that a person is a child, the Court must look into it. Herein also the convictions were quashed and the Supreme Court held at page 395 (of Cri LJ) :-
The correctness of the estimate of age as given by the trial Court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted the correctness of the estimate of age of the three appellants as given by the trial Court. Therefore, these three appellants should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion. since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the appellants squarely fell within the definition of the expression 'child'. We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the appellants as given by the trial Court, though the correctness of that estimate has not been put in issue before any forum. Following the course adopted in Gopinath Ghosh, AIR 1984 SC 237 : (1984 Cri LJ 168), Bhoop Ram, AIR 1989 SC 1329 : (1990 Cri LJ 2671) and Pradeep Kumar's case AIR 1994 SC 104 : (1994 Cri LJ 148) (supra) while sustaining the conviction of the appellants under all the charge quash the sentences awarded to them.
9. The facts in the present case have already been enumerated above. The appellant was a juvenile on the date when the offence is alleged to have been committed. Presently, she is about 25 years of age. Long years have roled by. The purpose of sending her to any other school, custody for reformation have elapsed. This has occurred because at the proper time no care had been taken. In these Circumstances in terms of the judgments rendered by the Supreme Court in the case of Bhoop Ram, AIR 1989 Sc 1329 : (1990 Cri LJ 2671), Krishan Kant, AIR 1994 SC 104 : (1994 Cri LJ 148) the Bhola Bhagat, AIR 1998 SC 236 : (1998 Cri LJ 390), the appellant must be released forthwith.
10. For these reasons, without disturbing the findings of the trial Court holding the appellant guilty for the offence punishable under section 302, IPC, we direct that the appellant be released forthwith.
11. Appeal allowed.