CRWP- 2090 of 2013 -1- In the High Court of Punjab and Haryana at Chandigarh CRWP- 2090 of 2013 Date of decision: 24.4.2014 Shaminder Singh @ Bittu ---Petitioner versus State of Punjab and others Respondents Coram:Hon'ble MRS.Justice Rekha Mittal *** Present: Mr.S.S.Rana, Advocate for the petitioner Mr.Neeraj Sharma, AAG, Punjab for the respondent-State *** 1.
Whether Reporters of local papers may be allowed to see the judgment?.
2.
To be referred to the Reporter or not?.
3.
Whether the judgment should be reported in the Digest?.
REKHA MITTAL, J.
The present petition has been preferred for issuance of direction to the Juvenile Justice Board, Fatehgarh Sahib to hold an enquiry and declare the petitioner as juvenile.
Counsel for the petitioner contends that FIR No.123 dated 14.5.2003 was registered in Police Station Sadar, Rajpura, District Patiala for offence punishable under Sections 302, 201, 419, 420, 467, 120-B of the Indian Penal Code (for short “IPC”.) and Section 25 of the Arms Act against the petitioner.
The petitioner was tried for the said offences and convicted Saini Paramjit Kaur 2014.04.29 17:01 I attest to the accuracy and integrity of this document Chandigarh CRWP- 2090 of 2013 -2- and sentenced for the offence charged against him and was awarded sentence of imprisonment for life by the Additional Sessions Judge, Patiala on 2.12.2005.
He filed Criminal Appeal No.D-27-DB of 2006 before this Court which was dismissed on 28.1.2011 affirming the judgment passed by the learned trial court.
The petitioner is in custody and serving the sentence awarded by the trial court.
He has already undergone actual sentence for a period of about 10 years and with remissions for a period of more than 17 yeaRs.It is argued with vehemence that date of birth of the petitioner is 2.12.1987 and on the date of occurrence i.e.14.5.2003, he was less than 16 years of age.
His date of birth stands recorded with the Registrar of Births and Deaths, Fatehgarh Sahib as per certificate Annexure P-1 and the same date of birth has been recorded in his middle class examination certificate issued by the Punjab School Education Board (Annexure P-2).It is further argued that claim of juvenility is open to be raised by an accused even after the disposal of the case, therefore, failure of the petitioner or his parents to claim that he was juvenile at the time of commission of offence cannot stand in his way to deny him the benefit of the Juvenile Justice (Care and Protection of Children) Act 1986 (for short “the Act”.) amended with effect from 1.4.2001.
It is prayed that the petition may be allowed and the matter may be referred to the Juvenile Justice Board, Fatehgarh Sahib to conduct an enquiry as per provisions of the Act read with Rule 12 of the Juvenile Justice (Care and Protection of Children)Rules, 2007 (for short “the Rules”.) and after declaring the petitioner as a juvenile, his case may be sent to the Juvenile Justice Board for passing appropriate sentence keeping Saini Paramjit Kaur 2014.04.29 17:01 I attest to the accuracy and integrity of this document Chandigarh CRWP- 2090 of 2013 -3- in view for the offence charged against him.
Counsel representing the respondents, in line with the reply filed by way of affidavit of Baljinder Singh Gill, Superintedent, Borstal Jail, Ludhiana has submitted that as the petitioner never raised a plea that he was juvenile at the time of commission of offence and the matter has been finally decided up to this Court, it is not open for the petitioner to contend now that an enquiry is required to be conducted to examine if he was juvenile at the time of commission of offence.
It is further submitted that no such document was produced by the petitioner during investigation that he was less than 18 years of age on the date of commission of offence, therefore, the petitioner was not a juvenile at the time of registration of the FIR and commission of offence.
I have heard counsel for the parties and perused the record.
To adjudicate the controveRs.raised in the instant petition, it is appropriate to extract relevant provisions of Section 7-A of the Act:- “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 any 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 recognised 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 Saini Paramjit Kaur 2014.04.29 17:01 I attest to the accuracy and integrity of this document Chandigarh CRWP- 2090 of 2013 -4- 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect.”
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The petitioner has appended birth certificate in regard to registration of his date of birth as 2.12.1987, registered on 28.12.1987 (Annexure P-1) and certificate of middle standard examination issued by the Punjab School Education Board reflecting his date of birth in consonance with the date of birth registered with the Registrar of Births and Deaths, therefore, it prima facie appears that the petitioner was less than 16 years of age at the time of commission of offence.
Having regard to the provisions of Section 7A of the Act, the petition is allowed and the Juvenile Justice Board, Fatehgarh Sahib, is directed to conduct an enquiry in compliance with the provisions of the Act and the Rules to ascertain if the petitioner was juvenile on the date of commission of offence.
(REKHA MITTAL ) JUDGE April 24, 2014 PARAMJIT Saini Paramjit Kaur 2014.04.29 17:01 I attest to the accuracy and integrity of this document Chandigarh