Madras High Court
Suresh @ D.Suresh Kumar vs The Inspector Of Police on 10 July, 2012
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2012 C O R A M THE HONOURABLE Mr.JUSTICE K.N.BASHA and THE HONOURABLE Mr.JUSTICE P.DEVADASS HABEAS CORPUS PETITION NO.1873 of 2011 Suresh @ D.Suresh Kumar ... Petitioner Vs 1.The Inspector of Police, C-2, Elephant Gate Police Station, Chennai. 2.The Superintendent, Central Prison, Vellore. 3.Chairman, Juvenile Justice Board, No.360, Purasawalkam High Road, Kellys, Chennai-600 010. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, directing the respondents 1 and 2 to produce the detenu Suresh Kumar, now lodged in Central Prison, Vellore before this Court and refer his case to the 3rd respondent/Juvenile Justice Board, Chennai. For Petitioner : Mr.S.Doraisamy For Respondents : Mr. P.Govindarajan Additional Public Prosecutor - - - - - - O R D E R
P.DEVADASS, J., The petitioner, now a lifer, lodged in Central Prison, Vellore, seeks his release from Jail as he was a "Juvenile in Conflict with law" at the time when he has committed the offence.
2. Ramesh and Suresh (petitioner) are brothers. Kuman Singh and Boparam were their servants. Ramesh married Kamaladevi. They were blessed with a child. But, not with a happy married life. There were frequent quarrels between them. They were residing in the 4th Floor, at Door No.22,Thulasingam Street, Sowcarpet, Chennai 1. On the early morning of 09.06.1987, on the ground floor, Kamaladevi's dead body was found. C2-Elephant Gate Police registered a case in Crime No.135 of 1987 for offences under Sections 120-B, 302 r/w. 34 and 376 IPC. Boparam became an Approver. In the II Additional Sessions Court, Chennai, in Sessions Case No.133/1988, Ramesh, petitioner and Kuman Singh were prosecuted for the said offences as A1 to A3. The Approver has been examined as PW1. Ultimately, on 21.09.1989, the learned Additional Sessions Judge found the petitioner guilty under Section 376 IPC and Section 302 r/w 34 IPC and sentenced him to 10 years rigorous imprisonment on the first count, sentenced him to death on the second count and directed merging of the sentence of imprisonment with the death sentence. It had also awarded similar sentences to A3, acquitted A1 and discharged the Approver. Their details are not relevant for our purpose.
3. In R.T.No.9 of 1989, in the High Court, the Trial Court sought for the confirmation of the death sentence. As against the conviction and the sentences, the petitioner also preferred Crl.A.No.782 of 1989 to this Court. On 08.02.1990, this Court allowed his Criminal Appeal, acquitted him from all the charges and answered R.T.No.9 of 1989 accordingly. Aggrieved, the State preferred Crl.A.Nos.153 and 154 of 1991 to the Honourable Supreme Court of India. On 05.12.1997, the Honourable Apex Court allowed the States appeal; set aside the Judgment of this Court and restored the conviction recorded by the Trial Court under Sections 302 r/w. 34 and 376 IPC, modified the death sentence to life sentence and maintained the 10 years rigorous imprisonment on the second count and directed both the sentences to run concurrently.
4. Mr.S.Doraisamy, learned counsel for the petitioner contended that on the date of the offence, the petitioner was 17 years and 2 months old, then, he was a Juvenile in conflict with law, as such, he cannot be sentenced to life, at the most, he can be detained in a Special Home for 3 years. Now, he is in jail for 13 years and also become 43 years old, so, now, that is also not feasible, in the circumstances, he may be released from jail. In support of his submissions, the learned counsel cited AMIT SINGH Vs. STATE OF MAHARASHTRA AND ANOTHER [2011 (13) SCC 744].
5. Mr.P.Govindarajan, learned Additional Public Prosecutor contended that either before the Trial Court or before this Court or before the Honourable Supreme Court, the petitioner had claimed that he was a Juvenile in conflict with law. In his recommittal warrant issued on 04.11.1998, he was shown as 28 years old. Accordingly, he was lodged in a regular Prison. Only for the first time, in this Court, in this Writ Petition, he claims his past juvenility. Thus, for having lodged him in jail, neither the Police nor the Jail Authorities could be faulted.
6. On the date of offence, namely, 09.06.1987, the Juvenile Justice Act, 1986 was in force. Under the Act, a male Juvenile must be below 16 years of age. Now, the petitioner is 43 years old. Further, he has been awarded life sentence by the Honourable Supreme Court. Till the filing of this Habeas Corpus Petition, he did not claim juvenility either before the Trial Court or before this Court or before the Honourable Supreme Court. He claim it for the first time in this Writ Petition.
7. In the circumstances, this Habeas Corpus Petition raises certain interesting questions as to claiming of benefit under the Juvenile Justice (Care and Protection of Children) Act, 2000, namely, when it can be claimed; whether it can be claimed retrospectively; whether it can be claimed in a Habeas Corpus Petition; if so, what are the procedures and the modalities that the Court has to follow and when subsequently the Juvenile attained 18 years of his age what the Court has to do, in such an event what orders the Court has to pass.
8. When juvenility is claimed, what is important is ascertainment of the age of the petitioner at the time of his commission of the offence. Thus, this Court directed the learned II Additional Sessions Judge, Chennai, to hold an enquiry as to his age on the date of the commission of the offence and submit a report. Accordingly, the said Judge conducted the enquiry and submitted her report stating that at the time of offence the detenu was 17 years and 2 months old.
9. We have anxiously considered the submissions made by both sides, perused the averments in the petition and counter, Report of the Inquiring Judge, went through the several decisions rendered with reference to certain important provisions of the Juvenile Justice Act, 1986 (shortly, hereinafter the Old J.J.Act, 1986) and the Juvenile Justice (Care and Protection of Children) Act, 2000 (shortly, hereinafter the New J.J. Act, 2000) as amended by Act No.33 of 2006.
10. A child, juvenile, a young person, who commits a crime should not be treated on par with adult criminals. The mental frame of a juvenile, who commits a delinquent act is different from the mental element of an adult accused. So, necessarily they have to be treated differently.
11. Till 1986, each State had its own enactment dealing with juvenile delinquency. In 1986, Juvenile Justice Act, 1986, a uniform Central Act was passed. This is a major enactment in this field. It was replaced by the current Act, namely, The Juvenile Justice (Care and Protection of Children) Act, 2000. It came into being with effect from 01.04.2000. Certain important provisions were added to it by way of Amendment Act No.33/2006.
12. In PRATAP SINGH Vs. STATE OF JHARKHAND AND ANOTHER [2005 (3) SCC 551], as regards the Juvenile Justice Legislation, the Honourable Supreme Court observed as under:-
"48. The purpose of the Juvenile Justice Legislation is to provide succour to the children who were being incarcerated along with adults and were subjected to various abuses. It would be in the fitness of things that appreciation of the very object and purpose of the legislation is seen with a clear understanding which sought to bring relief to juvenile delinquents."
13. In HARIRAM Vs. STATE OF RAJASTHAN AND ANOTHER [2009 (13) SCC 211], as regards the Juvenile Justice Legislation, the Honourable Apex Court observed as under:-
"3. The very scheme of the aforesaid Act is rehabilitatory in nature and not adversarial which the courts are generally used to. The implementation of the said law, therefore, requires a complete change in the mind-set of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects of the Juvenile Justice Act, 2000.
16. As indicated in the very beginning of this judgment, the Juvenile Justice Act, 2000, was enacted to deal with offences allegedly committed by juveniles on a different footing from adults, with the object of rehabilitating them. The need to treat children differently from adults in relation to commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in mind, Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the constitutional goals contemplated in Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected.
17. Subsequently, in keeping with certain international Conventions and in particular the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, commonly known as the Beijing Rules, the Legislature enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 ...."
14. In Section 2(h) of the Old J.J. Act, 1986 different age limit has been prescribed for male and female Juveniles. Under the Old Act, a male, who is below 16 years of his age and a female, who is below 18 years of her age were considered as Juveniles. However, the New J.J. Act, 2000 has removed this age disparity. As per Section 2(k) of the New J.J. Act, 2000, uniform age, namely, below 18 years has been prescribed both for the male and female Juveniles. As per Section 2(l) of the New J.J. Act, 2000, a Juvenile when commits an offence becomes a 'Juvenile in conflict with law'. A Juvenile with a deviant behaviour, namely, a delinquent Juvenile, under the New J.J. Act, 2000 came to be called a 'Juvenile in conflict with law'. Whatever might be the nature of the offence committed by a Juvenile, he cannot be tried before a regular Court. He cannot be tried along with adult accused (see Section 18, New J.J. Act, 2000). The delinquency of a Juvenile is to be enquired into by a specially constituted Board, namely, 'Juvenile Justice Board' composed of persons having expertise in child welfare and child psychology (see Sections 4, 5 and 14, New J.J. Act, 2000). Whatever might be the nature of the offence, whether bailable or non-bailable, bail is the rule and detention in an Observation Home is the exception (see Sections 12 and 8, New J.J. Act, 2000). No death sentence or life sentence be awarded to a Juvenile in conflict with law, he cannot be kept in a prison for default in payment of fine or in default of furnishing security (see Section 16, New J.J. Act). At the most, he can be detained in a Special Home up to three years. In no case he shall be jailed along adult accused. (see Sections 15, 9, New J.J. Act.). Instead of awarding him punishment various kinds of rehabilitative measures also have been prescribed in the Act (see Section 15, New J.J. Act). It is a welfare legislation containing various beneficial measures for the rehabilitation of young persons having deviant behaviour and it completely prohibits awarding them death sentence, life sentence and detention beyond 3 years in a Special Home.
15. Another kindred enactment intended to rehabilitate young offenders is Borstal Schools Act. In this state it is the Tamil Nadu Borstal Schools Act, 1925. As regards eligibility to claim benefit under this Act, rehabilitation and the correctional measures different parameters have been prescribed.
16. There is distinction between Juvenile Justice Act and Borstal Schools Act. J.J. Act is intended to deal with 'Juveniles in conflict with law'. A Juvenile is one either male or female, below 18 years. The parallel enactment is Tamil Nadu Borstal Schools Act, 1925. Though their object is same, they differ in certain aspects. So far as J.J. Act is concerned, the crucial date is date of commission of the offence. But, so far as the Borstal Schools Act is concerned, it is date of conviction. So far as J.J. Act is concerned, on the date when the offence was committed the juvenile in conflict with law must be below 18 years, whereas under the Borstal Schools Act, on the date of conviction the adolescent offender must be above 18 years but below 21 years. Under the J.J. Act, at the most, a Juvenile in conflict with law can be detained in a Special Observation Home up to 3 years whereas under the Borstal Schools Act, 1925 an adolescent offender must be kept in a Borstal School for not less than 2 years, but not more than 5 years but in no case beyond 23 years of his age (Also see S.VICTORIA Vs. INSPECTOR OF POLICE, THIRUVADANAI POLICE STATION, RAMANATHAPURAM DIST. AND ANOTHER [2012 (2) MLJ (Crl.) 520].
17. The most important aspect is the relevant date, the cut off date, to consider the eligibility of a juvenile in conflict with law to have the benefits provided under the J.J. Act.
18. In UMESH CHANDRA Vs. STATE OF RAJASTHAN [1982 (2) SCC 202], a three-Judge Bench of the Honourable Supreme Court while dealing with the case of a delinquent child under the Rajasthan Children Act, 1970 held that the eligibility to claim benefit under the Act has to be decided on the date when the offence was committed and not on the date of conviction.
19. In UMESH SINGH AND ANOTHER Vs. STATE OF BIHAR [2000 (6) SCC 89], while dealing with the case of a delinquent child under the Bihar Children Act, 1970 the Honourable Supreme Court followed UMESH CHANDRA (supra).
20. However, in ARNIT DAS Vs. STATE OF BIHAR [2000 (5) SCC 488], while dealing with the case of a juvenile under the Juvenile Justice Act, 1986, a two-Judge Bench of the Honourable Supreme Court held that the relevant date to have the benefits under the said Act is the date on which the accused was brought before the Court or the Juvenile Justice Board and not on the date of commission of the offence.
21. In UMESH CHANDRA (supra), it was held that the age of the accused on the date of the offence is relevant, while in ARNIT DAS (supra), it was held that the age of the accused on the date of the trial is relevant. This controversy necessitated the constitution of a five-Judge Constitution Bench of the Honourable Supreme Court in PRATAP SINGH Vs. STATE OF JHARKAND AND ANOTHER [2005 (3) SCC 551].
22. The Constitution Bench resolved this controversy and held that to have the benefit under the Juvenile Justice Act, 1986, the age of the accused on the date of the commission of the offence shall be taken into account and it had overruled ARNIT DAS (supra). Thus, UMESH CHANDRA (supra) was restored.
23. By the time when PRATAP SINGH (supra) came to be decided the New Juvenile Justice (Care and Protection of Children) Act, 2000 came to be passed. It prescribed uniform age limit of below 18 years both for the male and female Juveniles. And the Act was brought into force with effect from 01.04.2001.
24. In the circumstances, in PRATAP SINGH (supra), the Constitution Bench also held that the provisions of the New J.J. Act, 2000 would be applicable to cases initiated and pending for enquiry under the Old J.J.Act, 1986 provided the juvenile has not completed 18 years of his age as on 01.04.2001. PRATAP SINGH (supra) it had excluded the application of the New J.J. Act to the cases pending under the Old J.J. Act,1986 in which the juveniles have attained 18 years of age by 01.04.2001. The New J.J. Act,2000 will not be applicable to the cases which were pending before the enforcement of the New J.J. Act,2000, namely, 01.04.2001. So, as per PRATAP SINGH(supra) with respect to the cases under the Old J.J. Act,1986, the New J.J. Act,2000 has only retrospective operation.
25. In BIJENDER SINGH Vs. STATE OF HARYANA AND ANOTHER [2005 (3) SCC 685] and in SATBIR SINGH AND OTHERS Vs. STATE OF HARYANA [2005 (12) SCC 72], following the Constitution Bench decision in PRATAP SINGH (supra) the Honourable Supreme Court held that the provisions of New J.J. Act, 2000 raising the age of male Juvenile from 16 years to 18 years is applicable to the cases under Old J.J. Act, 1986, if the accused was below 18 years of his age as on 01.04.2001. So, in order to cover the cases of junveniles, who are below 18 years of age at the time of offence and have crossed 18 years of their age, by 01.04.2001, it has become necessary to make suitable amendments in the New J.J. Act, 2000.
26. The aftermath of PRATAP SINGH (supra) is the insertion of an Explanation to Section 20 and Section 7-A to the New J. J. Act, 2000 through the Amendment Act No.33 of 2006.
27. It is apposite here to note the said Section 7A and Explanation to Section 20. They runs as under:-
"Section 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 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.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect..
(emphasis supplied by us) "Section 20. Special provision in respect of 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 in 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:
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation: In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this 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. (emphasis supplied by us)
28. Even after the amendments, based on the earlier Constitution Bench decision in PRATAP SINGH (supra) some Courts have held that the New J.J. Act, 2000 has only retrospective operation and did not apply the Act to those Juveniles who have attained 18 years of their age by 01.04.2001.
29. Then came the landmark Judgment of the Honourable Supreme Court in HARI RAM Vs. STAE OF RAJASTHAN AND ANOTHER [2009 (13) SCC 211]. In this case, the effect of the said amendments were specifically considered by the Honourable Supreme Court and the Court held as under:-
"28. One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the definition of juvenile under Sections 2(k) and (l) in respect of offences alleged to have been committed prior to 1-4-2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986 Act, the upper age-limit for male children to be considered as juveniles was 16 years.
29. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1-4-2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him?"
" .... The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1-4-2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved.
39. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.
40. At this point it may be noted that the decision of the Constitution Bench in Pratap Singh case,[2005(3) SCC 551: 2005 SCC (Cri)742] was rendered at a point of time when the amendments to Sections 2(l) and 20 and the introduction of Section 7-A had not yet been effected, nor was Rule 12 of the 2007 Rules available.
41. Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules.
42. The decisions rendered by this Court and the High Courts prior to 1-4-2001, when the Juvenile Justice Act, 2000, came into force and thereafter can, therefore, be divided into two groups. The decisions in Pratap Singh case,[2005(3) SCC 551: 2005 SCC (Cri)742] and Munney v. State of U.P.[2006(12)SCC 697:(2007)2 SCC(Cri)363], fall into the first category, whereas the decisions in Jameel v. State of Maharashtra,[2007(11)SCC 420:(2008)1 SCC(Cri)748,] Vimal Chadha v. Vikas Choudhary,[2008(15)SCC216:(2008) 8 Scale 608], Babloo Pasi v. State of Jharkhand,[2008(13)SCC 133: 2009(3) SCC(Cri)266:(2008) 13 scale 137], and Ranjit Singh v. State of Haryan,[2008)(9) SCC 453: (2008)3 SCC (Cri)784], fall into the second category.
43. Although the Constitution Bench decisions in Pratap Singh case,[2005(3) SCC 551: 2005 SCC (Cri)742] and Munney case[2006(12)SCC 697:(2007)2 SCC(Cri)363] are not really relevant since they have been rendered prior to 22-8-2006, when Amendment Act 33 of 2006 came into force, they assume a modicum of significance since they have been referred to and relied upon even after the amending Act and the 2007 Rules came into force on 22-8-2006 and 26-10-2007, respectively.
44. Of the decisions rendered after the amendments effected in 2006 to the Juvenile Justice Act, 2000, the first decision of note is that of Jameel case,[2007(11)SCC 420:(2008)1 SCC(Cri)748,] rendered on 16-1-2007 wherein the amendments to the Act effected by Amendment Act 33 of 2006, which came into effect on 22-8-2006, were not even noticed.
45. The next decision rendered on 27-5-2008 is in Vimal Chadha case,[2008(15)SCC216: (2008) 8 Scale 608], wherein, although the amendment of the Act and the introduction of the Juvenile Justice Rules, 2007, were brought to the notice of the Court, the same were not considered and the decision was rendered in the light of the decision rendered in Pratap Singh case,[2005(3) SCC 551: 2005 SCC (Cri)742] and other cases decided prior to 1-4-2001.
46. The next decision rendered on the same point on 11-9-2008 was the decision in Ranjit Singh case,[2008)(9) SCC 453: (2008)3 SCC (Cri)784], wherein also the amendments to Sections 2(l) and 20 and the introduction of Section 7-A in the Juvenile Justice Act, 2000, and the introduction of the 2007 Rules had not been considered and the decision passed sub silentio.
47. Similar was the situation in Babloo Pasi case [2009 (3) SCC (Cri.) 266] decided on 3-10-2008 which basically dealt with Section 49 of the Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is pari materia with Rule 12 of the 2007 Rules. While deciding the said case, the Hon'ble Judges did not also have occasion to consider the amendments effected to the Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into force on 22-8-2006.
48. None of the aforesaid decisions are of much assistance in deciding the question with regard to the applicability of the definition of juvenile in Sections 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby the provisions of the said Act were extended to cover juveniles who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1-4-2001. (emphasis supplied)
49. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of juvenile in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act.
(emphasis supplied)
50. The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so on or before the date of commencement of this Act and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed".
30. HARI RAM (supra) made clear the effect of the New J.J. Act, 2000 as amended by Act No.33 of 2006. HARI RAM (supra) widened the scope of the New J.J. Act, 2000. In the light of Amending Act No.33 of 2006, HARI RAM (supra) viewed the applicability of the New J.J. Act, 2000 to the Juveniles who have committed the offence, when they were below 16 years but, have subsequently crossed their 18 years of age on or before 01.04.2001. HARIRAM (Supra) held that if the Juvenile in conflict with law was below 18 years when the offence was committed and susbequently he had crossed 18 years, it may be before 01.04.2001 or even on that day, still the juvenility can be claimed. So, the New J.J. Act, 2000 as amended by Act No.33 of 2006 has retrospective operation to the offences committed before 01.04.2001.
31. So, the New J.J. Act,2000 covers cases under the Old J.J. Act, 1986 even subsequent to the date of the offence when the juvenile in conflict with law had crossed 18 years of his age. If a Juvenile, who has committed an offence, when he was below 18 years of his age, even after disposal of his case, even after crossing his 18 years of age, as per Section 7A and Explanation to Section 20, he can claim juvenility at any stage of the case, trial, revision, appeal or any other criminal proceedings. So, even if the case is over in the Trial Court or in the next Appellate Court or even in the Honourable Supreme Court, subsequently in an independent proceedings, for the first time, the ex-juvenile in conflict with law can claim benefit under the New J.J. Act,2000 based on his past juvenility on the date of commission of the offence.
32. In ANIL AGARWALA AND ANOTHER Vs. STATE OF WEST BENGAL [2012 Crl. L.J. 1185 (SC)] when the Calcutta High Court rejected the juvenility claimed by the accused as belated the Honourable Supreme Court referring to Section 7A of the New J.J. Act, 2000 set aside the Judgment of the High Court, since it is incompatible with the provisions of New J.J. Act, 2000 and held that the juvenility can be raised at any time even after the final disposal of the case.
33. In AMIT SINGH (supra), the conviction and sentence recorded as against the appellant were confirmed by the Bombay High Court and their Special Leave Petition (Criminal) was dismissed by the Honourable Supreme Court and thereafter, the accused filed Habeas Corpus Petition under Article 32 of the Constitution of India before the Honourable Supreme Court, in Writ Petition (Criminal) No.16 of 2010 and for the first time, claimed juvenility, the Honourable Supreme Court referring to HARI RAM (supra), accepted his claim and directed his release from custody.
34. In the case before us, the II Additional Sessions Court, Chennai sentenced the petitioner to death and also to 10 years rigorous imprisonment and merged it with the death sentence. However, in the Criminal Appeal filed by him, he was acquitted by this Court. But, in the Appeal filed by the State, the Honourable Supreme Court set aside the order of acquittal, restored the conviction of the Trial Court and awarded him life sentence. Thus, till the Honourable Supreme Court the petitioner did not claim juvenility. Now, he filed Habeas Corpus Petition under Article 226 of the Constitution of India claiming junvenility for the first time in this Court. In the prior proceedings till the Honourable Supreme Court there was no occasion for any of the Court to consider his juvenility. After the final disposal of his Case/Criminal Appeal by the Honourable Supreme Court he claims juvenility for the first time in this Court in this Writ proceedings. Merely because he has raised it at a belated stage, it cannot be rejected (see ANIL AGARWALA (supra).
35. In pursuance of the proviso to Section 7A and Explanation to Section 20 and as per the dictum of the Honourable Supreme Court in HARI RAM (supra) and in AMIT SINGH (supra), he can claim juvenility in any proceedings, before any court and at any stage of the case. It includes, a Habeas Corpus Petition under Article 226 of the Constitution of India. By its nature it is also a criminal proceedings. Article 21 of the Constitution of India guarantees that no one shall be jailed expect as per law. It also guarantees that no one shall be punished, detained in jail except in accordance with law. So, no one shall be jailed as against the provisions of J.J. Act, more particularly, in violation of S.15,16 of New J.J.Act,2000 (also see S.7A and S.20, New J.J.Act,2000). Thus, even after the final disposal of his case by the Honourable Supreme Court, in this independent proceedings under Article 226 of the Constitution of India, petitioner can claim juvenility.
36. We have already seen that to claim the benefit under the New J.J. Act, 2000, on the date of the commission of offence, the accused must be below 18 years. So, the determination of his age on the date of the commission of the offence, namely, 09.06.1987, is most important.
37. To determine the age, the New J.J. Act, 2000 and the Rules framed thereunder laid down elaborate guidelines. It is useful hereto to note them.
38. Section 49 of the Act runs as under:-
"49. Presumption and determination of age.-
(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."
39. It is relevant to note Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which runs as under:-
"12. Procedure to be followed in determination of Age:-
...... 3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year ...... "
40. In the case before us, the petitioner claims that he was born on 09.04.1970. The petitioner is A2 in the Sessions Case. His name has been mentioned as Suresh. In the present petition, it is stated that he is also known as Suresh Kumar. The prosecution did not dispute this.
41. As directed, the learned II Additional Sessions Judge, Chennai, conducted enquiry to find out the age of the petitioner on the date of commission of the offence, namely, on 09.06.1987. In the enquiry, five witnesses, namely, C.Ws.1 to 5 were examined and Exs.C.1 to C.13 have been marked. The petitioner's parents are Devi Chand Jain and Pani Bai. Petitioner's father is now no more. His mother is now bedridden. As per Ex.C.1 certificate issued by the Chennai Corporation he was born on 09.04.1970 in a hospital in Chennai. The Hospital also issued birth certificate which contains the said date. The Corporation's computerized birth certificate is Ex.C.4. He studied in a Government School in a Village in Rajasthan. In the School Transfer Certificate/Ex.C2, his date of birth has been mentioned as 09.04.1970. Dr.Rajamani Bheem Rao(C.W.3) examined him and determined his present age as between 40 to 45 years. In the school record and in the birth certificate issued by the Corporation of Chennai, his date of birth has been recorded as 09.04.1970. Witnesses also have been spoken to about this. The date of birth stated by him has not been disputed by the prosecution. Considering the evidence on record, we concur with finding of the Inquiry Judge that as on 09.06.1987, the petitioner was 17 years and 2 months old.
42. In the case before us, the offence was committed on 09.06.1987. Then the petitioner was 17 years and 2 months old. Then, he has not completed 18 years of his age. As per Section 2(h) of the Old J.J. Act, 1986, he will not be a Juvenile. But, as per Section 2(k) of the New J.J.Act, 2000, he is a Juvenile. On the date of offence, namely, on 09.06.1987, he was below 18 years of age but, subsequently, he had crossed 18 years of age and before 01.04.2001 he was above 18 years of age. As per Section 2(l) of the New J.J. Act,2000, he is a juvenile in conflict with law. As per the dictum in HARI RAM (supra), even now he can raise his juvenility at the time when he was committed the offence and seek the benefits available under the New J.J. Act, 2000.
43. As per Section 16 of the New J.J.Act, 2000, he cannot be sentenced to life. As per Section 15 of the New J.J.Act, at the most, he can be detained in a Special Home for three years. On 21.09.1989, the petitioner was sentenced to death by the Sessions Court and subsequently, on 08.02.1990, he was acquitted by this court. But, on 05.12.1997, the order of acquittal was set aside by the Honourable Supreme Court and he was sentenced to life on the first count and he was awarded 10 years rigorous imprisonment on the second count and both the sentences were directed to run concurrently. Consequently, he was recommitted to the Prison. Now, he is running 43 years of his age. Already, he has been in jail for 13 years. These aspects were not disputed by the prosecution. So, as per Section 15 of the New J.J.Act, at this distant of time, stage and age it would be unrealistic and impracticable to send him to Special Home. Now, in the circumstances, how the accused has to be dealt with has to be seen.
44. In UPENDRA KUMAR Vs. STATE OF BIHAR, [2005 (3) SCC 592], in a Criminal Appeal, under similar circumstances, the Honourable Supreme Court after coming to the conclusion that the question of referring the appellant to Juvenile Justice Board does not arise, sustained his conviction under Section 302 of IPC, however, quashed his life sentence and ordered his release from jail.
45. In VANEET KUMAR GUPTA @ DHARMINDER Vs. STATE OF PUNJAB, [2009 (17) SCC 587], the accused who was sentenced to life under Section 302 r/w 149 of IPC was found to be a Juvenile at the time of offence the Honourable Supreme Court noticing that he is in prison for very many years, directed his release from jail.
46. Similar view also has been taken by the Honourable Supreme Court in SATISH @ DHANNA Vs. STATE OF MADHYA PRADESH AND OTHERS, [2009 (14) SCC 187] and in VIKRAM SINGH Vs. STATE OF HARYANA [2009 (13) SCC 645].
47. In DHARAMBIR Vs. STATE (NCT OF DELHI), [2010 (2) SCC 344], the appellant was sentenced to life, in the course of his Criminal Appeal before the Honourable Supreme Court, in the enquiry conducted, it was found that at the time of commission of the offence, he was below 18 years of age and was a juvenile in conflict with law and by the time his appeal reached the Honourable Supreme Court, he had reached 35 years of his age and he had spent 2 years, 4 months and 4 days in jail. So, even as per Section 15 of the New J.J. Act, 2000 he has to be sent to the Special Home for the balance 8 months. However, the Honourable Apex Court noticing that sending him to Special Home will not be in the interest of other juveniles in the Home, directed his release from jail.
48. In BHIM @ UTTAM GHOSH Vs. STATE OF WEST BENGAL, [2010 (14) SCC 571], the appellant was sentenced to 5 years rigorous imprisonment. It was established before the Honourable Supreme Court that on the date of offence, he was a juvenile in conflict with law and he is entitled to the benefit of New J.J. Act, 2000 and by that time, he has become 42 years old. But, he was in jail for less than 3 years. In the circumstances, the Apex Court did not detain him in jail for the remaining period and directed his release from jail.
49. In LAKHAN LAL Vs. STATE OF BIHAR [2011 (2) SCC 251], the accused who was sentenced to life under Section 302 r/w 34 of IPC was found to be a juvenile in conflict with law at the time of his commission of the offence. By the time, when his appeal reached the Honourable Supreme Court, he has crossed 40 years of his age and he was in jail for more than 7 years. Under these circumstances, referring to DHARAMBIR (supra), the Honourable Supreme Court set aside his life sentence and directed his release.
50. In AMIT SINGH (supra) the accused was found guilty under Sections 396, 506, 341, 379 r/w 120-B of IPC and Section 25(1-B) , 5 r/w 27 of the Arms Act, apart from the other sentence of imprisonment, he was also sentenced to life and his sentences were confirmed by the Bombay High Court in the Criminal Appeal filed by him and the Honourable Supreme Court also dismissed his Special Leave Petition (Criminal). Subsequently, he filed a Writ Petition (Criminal) before the Honourable Supreme Court under Article 32 of the Constitution of India and claimed juvenility and his claim was considered and he was found to be eligible for benefit under the New J.J. Act, 2000 and by the time he has been in jail for 12 years. In the circumstances, the Honourable Supreme Court held that since he was in jail for more than the maximum period for which a juvenile may be confined in a Special Home, directed his release from jail.
51. In NAMBUTHAI Vs. STATE REP. BY THE INSPECTOR OF POLICE, THOOTHUKUDI SOUTH POLICE STATION [H.C.P.(MD) No.488 of 2011 decided on 18.08.2011] (unreported), when the writ petitioner, who was a lifer and whose Criminal Appeal was already dismissed by this Court when claimed juvenility in the Habeas Corpus Petition, the Court on evidence accepting his claim directed his release from jail.
52. Exactly under similar circumstances, in VICTORIA (supra) and in PATTAMMAL Vs. INSPECTOR OF POLICE, THEPPAKULAM POLICE STATION, MADURAI DISTRICT AND ANOTHER [2012 (2) MLJ (Crl.) 624], in the Habeas Corpus Petitions filed by the life convicts after dismissal of their Criminal Appeals by this Court when they have established that they were juveniles in conflict with law at the time when the offences were committed by them and they have spent more than 3 years in jail and they have also crossed 18 years of their age long back, the Court directed their release from jail.
53. Since the petitioner is running 43 years and he was in jail for 13 years, as he is a Juvenile in conflict with law at the time of his commission of the offence and as per Section 16 of the New J.J. Act, 2000, that no Juvenile in conflict with law shall be sentenced to death or to life and following the decisions which we have seen already, the petitioner has to be released from jail.
54. In the result, this Habeas Corpus Petition is allowed. The Superintendent, Central Prison, Vellore is directed to release the petitioner/detenu from jail forthwith, if his further custody is no longer required in connection with any other case.
rrg/smn To
1.The Principal Sessions Judge, Chennai.
2.The II Additional Sessions Judge, Chennai.
3.The Chairperson, The Juvenile Justice Board, No.360, Purasaiwalkam High Road, Kellys, Chennai-600 010.
4.The Commissioner of Police, Egmore, Chennai-8.
5.The Superintendent, Central Prison, Vellore.
6.The Inspector of Police, C-2, Elephant Gate Police Station, Chennai.
7.The Additional Public Prosecutor, High Court, Madras.
8.The Section Officer, Criminal Section, High Court, Madras