Judgment:
CRA-S-1095-SB-2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-1095-SB-2009 Date of decision:
30. 6.2014 Parveen ..... Appellant Versus State of Haryana ..... Respondent CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. PRESENT: Mr. TC Dhanwal, Advocate for the appellant. Mr. CS Bakshi, Addl. AG Haryana. R.P. NAGRATH, J.
The appellant and three others were tried for the charge under Sections 363/366-A/376(2)(g) of the Indian Penal Code (IPC). He was convicted on 25.2.2009 by the trial Court and awarded appropriate sentences. When the instant appeal was listed on 24.10.2013, it was submitted by the appellant that he had filed an application before the trial Court for treating him as a juvenile. That application was dismissed without taking any evidence on record. It was noticed by this Court from record that opportunity to lead evidence on this question was not afforded. The Juvenile Justice Board, Bhiwani (hereinafter referred to as Kataria Rishu 2014.07.03 12:51 I attest to the accuracy and integrity of this document CRA-S-1095-SB-2009 -2- 'the JJB Bhiwani') was directed to determine the issue of juvenility of Parveen S/o Ran Singh-appellant and he was directed to appear before the JJB on 11.11.2013.
2. The JJB, Bhiwani held the enquiry and recorded evidence. The appellant himself appeared as AW-1 and placed on record Middle School Examination Certificate showing his date of birth as 6.6.1991 clearly showing his age to be below 18 yeas as on 23.5.2008, the date of occurrence. Even the prosecution produced the Head Master of the school where he had studied and as per the record of school, his date of birth was entered as 5.8.1992. Therefore, the JJB, Bhiwani has come to a firm finding that according to both the certificates, the appellant was surely below 18 years of age.
3. I have heard learned counsel for the appellant, learned State counsel and carefully gone through record with their able assistance.
4. In view of the report sent by JJB, Bhiwani the learned State counsel was unable to challenge the finding about the age of the appellant on the date of occurrence.
5. The instant is not a case where the issue of minority of the appellant has been raised for the first time before this Court. The trial Court record shows that when the trial was fixed for 8.10.2008 an application was filed by the appellant stating himself to be a juvenile. The learned trial Court observed that the application shall also be considered on the date already fixed against which the State is at liberty to file reply or lead evidence in rebuttal on the application. Two witnesses of prosecution in the main trial were examined on 18.10.2008 Kataria Rishu 2014.07.03 12:51 I attest to the accuracy and integrity of this document CRA-S-1095-SB-2009 -3- but no reply was filed to the said application by the State and an adjournment was requested. On the further dates of hearing, the trial went on further without noticing the aforesaid contention.
6. The learned trial Court, however, rejected the above application on 18.2.2009 with the following observations:- “After taking evidence on the point of accused Parveen being a juvenile or not, heard on the application for declaring accused Parveen a juvenile. Only photocopies of Middle Examination Certificate, one municipal receipt and one order passed by the Principal Magistrate, Juvenile Justice Board, Bhiwani, have been placed on record Mark A to Mark C. None of these documents inspire any confidence whereas no birth certificate nor other convincing evidence has been brought on record to show accused Parveen to be juvenile. Photocopies are hardly any pieces of admissible evidence and therefore, the application to declare accused Parveen as a juvenile is dismissed.”. 7. From the above it is quite clear that learned trial Court committed a grave omission in not affording appropriate opportunity to prove the factum of juvenility. The trial Court was supposed to hold enquiry in accordance with law and could also have directed the State agencies to verify the certificates relied upon.
8. In Jitendra Singh @ Babboo Singh and others Vs. State of U.P., 2013 (11) SCC193the incident was dated 23/24.5.1988 and the Kataria Rishu 2014.07.03 12:51 I attest to the accuracy and integrity of this document CRA-S-1095-SB-2009 -4- trial ended in the conviction on 30.8.1990. Appeal against that judgment of conviction was preferred before the Luckhnow Bench of Allahabad High Court and the same was dismissed on 23.5.2003. By that time the Juvenile Justice (Care and Protection) Act, 2000 (for short 'the Act') had come into force but the question of juvenility was not raised. It was only for the first time before the Hon'ble Supreme Court that the question of juvenility was raised and it was found that the appellant was between 16 to 18 years on the date of commission of crime and was entitled to the benefits under the Act by virtue of Section 20 of the Act laying down special provision in respect of pending cases. Hon'ble Supreme Court in that case, therefore, remanded the matter to the jurisdictional Juvenile Justice Board constituted under the Act for determining the appropriate quantum of fine that should be levied on the appellant and that the compensation should be awarded to the family of the deceased.
9. The matter in the instant case, however, cannot be remitted to the Juvenile Justice Board, simply to hear the appellant on the quantum of sentence because the appellant had raised this issue at the first instance before the trial Court even before the prosecutrix and her father were examined. Section 6 of the Act reads as under:-
“6. Powers of Juvenile Justice Board.- (1) Where a Board has been constituted for any district; notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act, Kataria Rishu 2014.07.03 12:51 I attest to the accuracy and integrity of this document CRA-S-1095-SB-2009 -5- relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceedings comes before them in appeal, revision or otherwise.”. 10. In view of the facts discussed above and a clear finding that the appellant was below 18 years of age at the time of commission of crime, the judgment of conviction passed against the appellant and consequent sentences are set aside and the matter is remitted to the Juvenile Justice Board, Bhiwani to proceed further in accordance with law under the provisions of the Juvenile Justice (Care and Protection) Act, 2000. The prosecution through the learned State counsel is directed to present separate challan/charge-sheet against the appellant on the date being fixed by this Court. The appellant is also directed to appear before the Juvenile Justice Board, Bhiwani on 25.7.2014 failing which the Board would be at liberty to adopt the coercive process for securing his presence. June 30, 2014 ( R.P. NAGRATH ) rishu JUDGE Kataria Rishu 2014.07.03 12:51 I attest to the accuracy and integrity of this document