Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ishaq Palla & Another vs State Of J&K; & Others on 12 July, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Cr. Appeal no. 11/2012
MP nos. 171/2013, 225/2013;
42/2013; 52/2014; 01/2015 c/w
Cr. Reference no. 06/2012
Date of Decision: 12.07.2017
Mohammad Ishaq Palla & another v. State of J&K and Ors.
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmad, Chief Justice
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
i) Whether to be reported in
Press/Journal/Media Yes/No
ii) Whether to be reported in
Digest /Journal Yes/No
Appearing Counsel:
For the Appellant(s) : Mr. S. T. Hussain, Sr. Advocate
with Ms. Nida Advocate
For the Respondent(s) : Mr. M. I. Dar, AAG
Per Ali Mohammad Magrey, J.
1. This criminal appeal has been filed by the appellant against the judgment and the order of conviction and sentence dated 28.08.2012 & 10.09.2012, for short impugned judgment and order, passed by the court of learned Principal Sessions Judge, Shopian, for short trial court, in case FIR no. 47/2005 of Police Station Zainapore for the commission of offences punishable under section 364 of the Ranbir Penal Code, for short RPC, titled State v. Mohammad Ishaq Paul and another, whereby the appellant no.1, came to be convicted and sentenced to undergo rigorous imprisonment for life for the ________________________________________________________________________ Cr. A. No. 11/2012 c/w Cr. Ref. No. 06/2012 Page 1 of 11 commission of offence punishable in terms of Section 302 of the RPC and seven years rigorous imprisonment for the commission of offence punishable in terms of Section 364 of the RPC. Appellant no. 2 has been convicted and sentenced to undergo rigorous imprisonment of five years for the commission of offences punishable in terms of Section 364 and 109 of the RPC and with a fine of Rs. 10,000/- and in default of payment of fine he had to undergo a further period of six months simple imprisonment.
2. The narration of the events are briefly put on record, thus:
3. In the evening of 11th September, 2005, at about 7.15 PM some unidentified persons abducted one Nazir Ahmad Kumar S/o Abdul Gani Kumar R/o Manihal, Shopian from his house who was later found to have been murdered. The police concerned registered the case as FIR no. 47/2005 initially for the commission of offences punishable under section 364 of the RPC only but later on section 302 RPC was added.
4. During investigation it transpired that one Tariq Ahmad Sheikh, appellant no. 2, had called the deceased from his house, therefore, offence punishable under section 109 of the RPC was also added against the accused Tariq Ahmad. Accordingly, appellant no. 2 was charged with the offences punishable under sections 364 and 109 of the RPC. ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 2 of 11
5. The trial court, after a full dress trial, came to the conclusion that appellants had committed the alleged offences, therefore, both the appellants/ accused were convicted and sentenced in terms of the impugned judgment and order.
6. This appeal is filed by the appellants against the said judgment and order seeking its reversal on the grounds taken in the memo of appeal.
7. At the very outset Mr. S. T. Hussain, learned counsel for appellants submits that the alleged role of appellant no. 2 in the prosecution story is that he called deceased out of his house, therefore is accused of being involved in commission of offences punishable under section 364 read with 109 of the RPC. Mr. Hussain, learned counsel, further submits that the trial court has based conviction of the appellant no. 2, on fragile evidence, however, he submits that he does not challenge the conviction but prays only for reducing the period of sentence to the extent of the time already spent by the appellant in Jail. His statement is taken on record. Mr. M. I. Dar, learned State Counsel, submits that he is not averse to reduction of period of sentence in favour of appellant number no. 2 given the role he has played in the whole affair. His statement is also taken on record.
8. Having regard to the statements made by the counsel for the parties and taking into consideration the alleged role played ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 3 of 11 by the appellant no. 2 in the case, We feel it appropriate to maintain the conviction and allow the appeal, insofar as appellant no. 2 is concerned, only to the extent that the period of sentence awarded against him is reduced to the period already undergone by him (i.e. approximately 3 ½ years). The bail bonds furnished by the appellant are discharged.
9. Now, in respect of appellant no.1, the learned counsel again submits that although there is very weak evidence having been adduced against the appellant to indict him for the commission of offences punishable in terms of Section 302 of the RPC, yet the appellant gives up the challenge to conviction. The learned counsel, however, would submit that the appellant being a juvenile cannot be awarded a punishment beyond the period of three years in terms of the provisions of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013, for short, referred to as the Act. Therefore, the learned counsel prays that the period of sentence awarded against the appellant no. 1 be reduced to the period already undergone by him as the appellant has remained in Jail for a period of more than eleven years. His statement is taken on record. Mr. M. I. Dar, learned AAG, is not averse to such course if the conviction of the appellant is maintained. His statement is also taken on record.
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10. Since a plea of juvenility of appellant no. 1 was raised by the learned counsel for appellant during the pendency of the appeal, therefore, this Court, in terms of order dated 15.05.2017, directed the learned Registrar Judicial of this wing to determine the age of the said appellant as on the date of the alleged commission of offence i.e., 11.09.2005, by holding an enquiry.
11. It would be apt to state herein that appellant no. 1 during the pendency of the appeal has filed two applications bearing nos. 171/2013 and 225/2013, seeking to place on record the date of birth certificate of the appellant and to extend him the benefit of the Act and this is how the learned Registrar Judicial has been asked to enquire into the plea of juvenility of appellant no. 1, in terms of Section 8 of the Act which provides the procedure to be followed when the claim of juvenility is raised before any Court. The origin of the direction dated 15th May, 2017, directing the Registrar Judicial to enquire into the juvenility of the appellant no. 1 lies in the procedure prescribed in the Act. Section 8 of the Act, for facility of reference is reproduced hereunder, thus:
"8. 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 juvenile on the date ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 5 of 11 of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not on affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile 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 the Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of the 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect."
12. The powers of the Juvenile Justice Board are enumerated in Section 6 of the Act. It provides that where a Board has been constituted, such Board shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in the Act, have power to deal exclusively with all proceedings under the Act relating to juvenile in conflict with law. Sub-Section (2) of ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 6 of 11 Section 6 provides that the powers conferred on the Board by or under the Act may also be exercised by the High Court and the Court of Sessions, Srinagar or Jammu, as the case may be, when the proceeding comes before them in appeal, revision or otherwise. Thus, the powers conferred on the Board are also exercisable by this Court.
13. Pursuant to the direction dated 15.05.2017 the learned Registrar Judicial concluded the enquiry on 14th June, 2017, and furnished his report. Based on the evidence collected, as reflected in the enquiry report, the learned Registrar Judicial has reached to the conclusion that date of birth of the appellant no. 1 Mohammad Ishaq Palla is proved to be 1st February, 1989, and the age of the appellant is established to be 16 years 07 months and 10 days on the date of alleged commission of offence i.e. 11.09.2005.
14. Since it is established in the enquiry that the appellant no. 1 was a juvenile at the time of the alleged occurrence, therefore, the provisions of the Act would necessarily apply. It would, therefore, be quite apt to take a glance at the relevant provisions of the Act hereunder, thus:
"2. Definitions....
(m) „juvenile" or "child" means a person who has not completed eighteenth year of age;
(n) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;
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16. 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 it thinks so fit,_
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counseling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to 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 behavior 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 behavior and well-being of the juvenile for any period not exceeding three years;....
17. Order that may not be passed against juvenile (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life 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 sixteen years has committed an offence and the Board is satisfied that the offence committed is of so serious in nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under the Act is ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 8 of 11 suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the Government.
(2) On receipt of a report from a Board under sub-section (1), the Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:
Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 16 of the Act....
20. Removal of disqualification attaching to conviction (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of the Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.
21. Special Provision in respect of pending cases Notwithstanding anything contained in the Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which the Act comes into force in that area, shall be continued in that court as if the Act has 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 the Act as if it had been satisfied on inquiry under the 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. ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 9 of 11 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 (n) of section 2, even if the juvenile ceases to be so on or before the date of commencement of the Act and the provisions of the 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."
15. The above extracted provisions of the Act would amply demonstrate that the juvenile cannot be kept in confinement for a period exceeding three years. Even such confinement has to be strictly as prescribed by the Act. Whatever the reason, the appellant no. 1, despite being a juvenile, has not received the benefit available to him under the provisions of the Act and he has already undergone a period of 11 years in Jail like any other criminal.
16. As the learned counsel for appellant has given up the challenge to the conviction, therefore, without going into the merits of the case, and in view of no opposition from the other side, the conviction recorded against appellant no. 1 is maintained, however, he is held entitled to the benefit of juvenility in terms of the provisions of the Act. The appellant no.
1, being a juvenile, had to undergo the sentence for a period not exceeding three years but he has admittedly undergone and served the sentence for a period of 11 years. Therefore, We feel it appropriate to maintain the conviction and modify the ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 10 of 11 sentence of the appellant no. 1 for the period prescribed under the provisions of the Act. The appellant no. 1 shall be released forthwith. The criminal reference as received in terms of Section 374 of the Code of Criminal Procedure is accordingly answered.
17. The Criminal Appeal along with the Criminal Reference is as such disposed of as above.
18. A Copy of this judgment along with trial court records be sent to the trial court.
19. The Bail application and other allied MPs, in view of the above directions, shall stand disposed of as settled.
20. The Superintendent, Central Jail, Srinagar, be informed to release the accused/ appellant no. 1 from custody forthwith.
(Ali Mohammad Magrey)(Badar Durrez Ahmad) Judge Chief Justice SRINAGAR 12.07.2017 Amjad lone PS ________________________________________________________________________ Cr. A. No.11/2012 c/w Cr.Ref. No.06/2012 Page 11 of 11