IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
31. 07.2013 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.2173 of 2012 Kalai Selvi ... Petitioner vs. State represented by Inspector of Police, R-4 Pondy Bazaar Police Station, Chennai. ... Respondent Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus to direct the respondents to produce the petitioner's husband/detenu Mr.R.Munusamy S/o.Ramachandran confined as a life convict with CT No.431/2008 (CONVICT) (Current), on the Nominal Rolls of the Central Prison, Puzhal, Thiruvallur District, before this Court and set him at liberty. For Petitioner : Dr.Fr.A.Xavier Arulraj For Respondents : Mr.S.Shunmugavelayutham, Public Prosecutor assisted by Mr.A.N.Thambidurai, Addl. Public Prosecutor * * * * *
ORDER(Order of the Court was made by V.Dhanapalan,J.) The prayer in the Habeas Corpus Petition is to direct the respondents to produce the detenu R.Munusamy, S/o.Ramachandran, Life Convict with CT No.431/2008, detained at Central Prison, Puzhal, Thiruvallur District, before this Court and set him at liberty.
2. Brief facts leading to filing of this petition are as follows: (a) The petitioner is the wife of the detenu R.Munusamy S/o.Ramachandran. He was born on 10.09.1978. Since the Birth Certificate of the detenu has not been obtained under Registration of Births and Deaths Act, 1969, the School Transfer Certificate dated 13.09.1993 and the Driving License dated 22.11.2005 have been relied upon to prove the age of the detenu and he was less than 18 years of age on the date of occurrence of the alleged offence on 08.06.1996. (b) The detenu was implicated as third accused in the alleged offence under Section 302 r/w 34 IPC said to have taken place on 08.06.1996; on the date of commission of the offence, the detenu was aged about 17 years, 9 months and 28 days and thus, he was a juvenile as per Juvenile Justice (Care and Protection of Children) Act, 2000, as amended (hereinafter referred to as 'the Act'), but he was tried as an adult in S.C.No.399 of 1998 on the file of the learned V Additional Sessions Judge, Chennai and was convicted and sentenced to undergo life imprisonment, by judgment dated 10.04.2001, which was confirmed by this Court in Crl.A.No.425 of 2001, by a judgment dated 27.09.2005 and thereafter, the detenu continued to languish in Central Prison, Puzhal, Thiruvallur District. (c) Section 7-A(1) of the Act, as amended by Act 33 of 2006, allows the claim of juvenility to be raised before any Court at any stage of the proceedings, even after disposal of the case, on the ground that the accused was a juvenile on the date of commission of offence. (d) The detenu was confined at Central Prison, Puzhal, Thiruvallur District for about 11 years. The continued detention of the detenu is unjust, illegal and violative of Article 21 of the Constitution of India. Hence, the petitioner has filed this petition.
3. Learned counsel for the petitioner submitted that the detenu was a juvenile on the date of commission of offence, namely the date of occurrence and the detenu's date of birth is 10.09.1978 and the date of occurrence was 08.06.1996. It is his contention that in this regard, this Court, by an order dated 14.03.2013, directed the trial Court to conduct an enquiry and give a report regarding the age of the detenu on the date of occurrence. Such enquiry report, dated 26.04.2013 has been submitted by the learned V Additional District and Sessions Judge, Chennai, which would clearly indicate that the detenu was a juvenile on the date of occurrence. Learned counsel further stated that the detenu has been in jail for more than 11 years and prayed that he is entitled to the benefits of the Act and hence, he requested this Court to set him at liberty forthwith. In support of his case, he relied on various decisions of this Court and the Supreme Court.
4. On the above submissions, we have heard Mr.A.N.Thambidurai, learned Additional Public Prosecutor appearing for the respondent. He submitted that the Act itself is a beneficial Legislation and the ratio laid down by the Supreme Court in various decisions also makes it clear that if, on the date of occurrence, a detenu was a juvenile/minor and less than 18 years of age, he is entitled to the benefits of the Act and anyone convicted thereupon, may be set at liberty forthwith. While explaining the legal position, he would further submit that the detenu can claim the benefits only when he comes under the definition of a Juvenile.
5. We have heard the learned counsel appearing for the parties and perused the records and the enquiry report, dated 26.04.2013 of the learned V Additional District and Sessions Judge, Chennai, in respect of the enquiry conducted in S.C.No.399 of 1998 and gone through the various decisions of the Supreme Court and this Court.
6. On a circumspection of facts, it is seen that the petitioner is the wife of the detenu Munusamy. According to her, her husband's (detenu's) date of birth is 10.09.1978. Since the Birth Certificate of the detenu has not been obtained under Registration of Births and Deaths Act, 1969, the School Transfer Certificate dated 13.09.1993 and the Driving License dated 22.11.2005 have been relied upon to substantiate the age of her husband, annexed in page Nos.1 and 34 of the typed set of papers filed along with this Habeas Corpus Petition.
7. To ascertain as to whether on the date of occurrence the detenu was a juvenile or not, this Court, by an order dated 14.03.2013, directed the Trial Court to conduct an enquiry and send a report and accordingly, the enquiry report dated 26.04.2013 was submitted to this Court by the learned V Additional District and Sessions Judge, Chennai, in respect of the enquiry conducted in S.C.No.399 of 1998, and the said enquiry report reads as follows: ".As per the Hon'ble High Court's direction in order in Habeas Corpus Petition No.2173/2012 dated 14.03.2013, this Court is directed to determine the age of the accused Munusamy at the time of occurrence dated 08.06.1996 in accordance with law. This case of Juvenility is coming on 22.04.2013 for final hearing before this Court in the presence of Ms.Uma SriVardhini, Additional City Public Prosecutor for the State and of M/s.K.Selvaraj, V.Alamelu, counsel for the accused person Munusamy, after hearing the arguments of both sides and upon perusing the relevant records, evidences and material objects and having stood over for consideration till this day, this Court has delivered the following:
ORDER1The point for consideration is: whether the accused person Munusamy is a juvenile in conflict with law on the date of occurrence?. 2.On point: As per the Hon'ble High Court Order in Habeas Corpus Petition No.2173 of 2012 dated 14.03.2013 as the learned V Additional Sessions Judge, Chennai is directed to conduct an enquiry into determine the age of the accused at the time of commission of the offence i.e. 08.06.1996, accordance with law, as per the provisions laid down by the Hon'ble Apex Court in the decision in Hariram's case (cited supra) reported in 2009 (13) SCC211and as per the rules and provisions framed under the Juvenile Justice Act 2000, by affording opportunity to the accused as well as to the prosecution. It is made clear that the learned Trial Judge shall complete the enquiry within a period of four weeks from the date of receipt of a copy of this order".. Hence due notice to Addl. City Public Prosecution and accused's counsel ordered on 05.04.2013. On the side of the accused D.W.1 Tr.Venkateswaran and D.W.2 Tmt.Lakshmi were examined Exs.D1 to D5 were marked. On the side of the prosecution P.W.15 Dr.Vedanayagam who has conducted medical examination was examined. Exs.P32 and P.33 were marked.
3. The learned Addl. City Public Prosecutor would contend that the accused Munusamy is not a juvenile on the date of occurrence. The trial Court after due examination of all witness came to conclusion beyond reasonable doubt and convicted the accused Munusamy. Through out the trial neither the accused Munusamy nor his counsel has not raised any question regarding the age much less the accused is a juvenile in conflict with law. It is the duty of the accused to prove that he is a juvenile on the date of occurrence in conflict with law. As per the Hon'ble High Court's direction in Haheas Corpus Petition No.2173 of 2012 dated 14.03.2013 due proceeding under Section-7A The Juvenile Justice (Care and Protection of Children) Act 2000 Rule 12 of The Juvenile Justice (Care and Protection of Children) Rule 2007 is scrupulously followed. On the side of accused neither birth certificate issued by the Chennai Corporation nor birth certificate issued by the School Authorities filed. Hence the accused Munusamy was directed to appear before the Medical Board. P.W.15 Dr.Vedanayagam after due medical examination produced Exs.P32 and P33 series and deposed before this Court that @/////,t;tHf;F vjphp 19/04/2013 md;W vd; Kd;dpiyapy; M$h; bra;ag;gl;llhh;/ mtUf;F kUj;JtKiwg;go Ez;fjph; ghpnrhjid bra;ag;gl;lJ/ mth; Rkhuhd cly;thFld; fhzg;gl;lhh;/ mtUila cauk; mse;J ghh;jj;jpy; 173 br/kP ,Ue;jJ/ mtUila cly; vil 69/5 fp/fp/. mtUila gy; tyJ nkw;g[wj;jpy; 8 gw;wfSk;. ,lJl nkw;g[wj;jpy; 8 gw;fSk; tyJ fPH;g[wj;jpy; 8 gw;fSk; ,lJ fPH;g[wj;jpy; 7 gw;fSk; fhzg;gl;lJ/ mtUila ghpnrhijia gpd;dpl;L mtUila taJ jw;nghJ35;F nky; 40 taJf;Fs;shf ,Uf;Fk; vd;W rhd;wspj;Js;nsd;//////@ establishes that on the date of occurrence the accused Munusamy was not a juvenile in conflict with law. Further the learned Addl.C.P.P. would contend that the evidence of D.W.1 and D.W.2 and documents D1 to D5 is not acceptable for the simple reason that the birth certificate of the accused Munusamy is not produced before this Court. Similarly the school records of Munusamy from first standard is also not produced. The documents produced before this Court are the application form submitted by the father of the accused Munusamy and school records from VI standard. D.W.1 the Headmaster and the counsel appearing for the accused Munusamy has not explained the reason for the non production of the primary school records from I standard to VI std.,. The evidence of D.W.2 the mother of the accused Munusamy is apparently clear that @vdf;F tptuk; bjhpahj tajpy; jpUkzk; MdJ/ vdf;F ve;j tUljk jpUkzk; MdJ vd;W vdf;F bjhpahJ/ vd; fzth; jw;nghJ capUld; ,y;iy/ mth; ,we;J ehd;F Mz;Lfs; MfpwJ/ mth; ve;j njjpapy; ,we;jhh; vd;W vdf;F bjhpahJ/ vd; fzth; bgah; uhkre;jpud;/ ,t;tHf;fpy; cs;s vjphp KDrhkp vd;Dila 4tJ kfd;/ Kdrhkp 10/09/1978k; njjp gpwe;jhd;/ vdf;F bkhj;jk; 4 FHe;ijfs; gpwe;jhh;fs;/ vd;Dila ehd;F Fhe;ijfspd; bgah;fSk; vdf;F bjhpahJ/ rhl;rp jw;nghJ vd;Dila Kjy; kfd; bgah; bry;tk; vd;Wk; ,uz;lhtJ kfs; rhe;jp vd;Wk; K:d;whtJ kfd; KUfd; vd;Wk; ehd;fhtJ kfd; Kdrhkp vd;W TWfpwhh;/ mth;fspd; gpwe;j njjp vdf;F ".hgfk; ,y;iy//////@ At the time of cross examination also, D.W.2 has stated that @vd;Dila kfd; KDrhkpiaj; jtpu kw;w gps;isfs; ahUk; gof;ftpy;iy/ vdJ4FHe;ijfSk; tPl;onyna gpwe;jhh;fs;/ vd;Dila kfd; KDrhkpia 5 tajpy;jhd; gs;spf;Tlj;jpw;F mDg;gpndd;/ vd;Dila kfd; KDrhkp xnu gs;spf;Tlj;;jpy;jhd; goj;jhd; /////// vjphpj;;jug;g[ rhd;whtzk; 4y; cs;s ifehl;L vd;DilaJ my;y///////@ establishes that without knowing the date of birth of other children, how D.W.2 remembers the date of birth of the accused Munusamy only not explained. The learned Addl. City Public Prosecutor cited a decision reported in (2013) 1 Supreme Court Cases (Cri) 83 Abuzar Hosain Allias Gulam Hossain ... Appellant Vs. State of West Bengal .. Respondent 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the Court to order an enquiry into determination of the age of the delinquent. 39.5.The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 200 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/ guardians understate the age of their wards by one or two years for future benefits or that age determination boy medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. In this case as per the evidence of P.W.15 and Exs.P32 & P33 the accused Munusamy is not a Juvenile in conflict with law. 4.The learned counsel for the accused person would contend that the date of birth of the accused is 10.09.1978. The occurrence took place on 08.06.1996. The accused has not attained the age of 18 as per S.2K and 2 of The Juvenile Justice (Care and Protection of Children) Act 2000. On the other hand the accused attained the age of 17 years 9 months and 28 days only. At the time of trial both prosecution and the accused ignored the juvenility totally. As per the Order of the Hon'ble High Court in Habeas Corpus Petition No.2173/2012 dated 14.03.2013 due examination of witnesses conducted. D.W.1 the Headmaster of M.C.N. Higher Secondary School wherein the accused studied right from the age of 5 till 8th standard deposed before this Court is that: @/////////// ,t;tHf;fpy; cs;s vjphp Kdrhkp nkw;go gs;spapy; goj;jjhh; vd;gijf; fhl;lf;Toa ml;kpc&d; hp$p!;lh; vjphpj;jjug;g[ rhd;whtzk; 1/ mjpy; KDrhkp bgah; Kjyhtjhf fz;Ls;sJ/ KDrhkpapd; gpwe;jnjjp 10/09/78 vd;W Fwpg;gplg;gl;Ls;sJ/ me;j KDrhkpapd; jfg;gdhh; bgah; v!.;uhkr;re;jpud; vd;W Fwpg;gplg;gl;Ls;sJ/ nkw;go KDrhkp vk;/rp/vd;/nkdpiyg;gs;spapy; 6k; tFg;gpy; nrUk;nghJ mth; bfhz;L te;j buf;fhh;L rPl; vjphpj;jug;g[ rhd;whtzk; 2/ 6k; tFg;gpy; nrUtjw;F nkw;go KDrhkpapd; jfg;gdhh; uhkre;jpud; vGjpf;bfhLj;j kD/ nkw;go KDrhkp br';fy;tuhad; eha[L gpiukhp !;Ty; jpahfuhaefhpy; 1k; tFg;gpypUe;J5; tFg;g[ tiu goj;jjhh;/ mth; 1k; tFg;gpy; nrUk;nghJ bfhLj;j kD vjphpj;jug;g[ rhd;whtzk; 3/ mjpy; gpwe;j njjp 10th September 1978 vd;W vGjg;gl;Ls;sJ/ ,t;tHf;F vjphp KDrhkpf;F tH';fg;gl;l gs;spf;fy;tpj;;Jiw khw;Wr;rhd;wpjH; vjphpj;jug;g[ rhd;whtzk; 4/ mjpy; gpwe;j njjp 10/09/1978 vd;W Fwpg;gplg;gl;Ls;sJ/ mjd; mof;fl;il b$uhf;!; efy; mry; Mtzj;Jld; xg;gpl;L ghh;f;fg;gl;lJ vjphpj;jug;g[ rhd;whtzk; 5/@ proves beyond reasonable doubt that the accused Munusamy is a Juvenile. Further the learned counsel for the accused contended that: As per Section 7A of The Juvenile Justice (Care and Protection of Children) Act 2000 which reads as follows: 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. Hence, due enquiry conducted by this Court by examining D.W.1 & D.W.2 As per Rule 12 of The Juvenile Justice (Care and Protection of Children) Rule 2007 on the side of the accused the school records were marked as Exs.D1 to D5. All the school records very clearly shows that the date of birth of accused Munusamy is 10.09.1978. Further the learned counsel for the accused contended that after receiving the documents like Exs.D1 to D5 and regarding the evidence of D.W.1 Mr.Venkateswaran, the headmaster of Institution, this Court has referred the accused to Medical Board only on the ground of non production of birth certificate. The learned counsel further contended that the certificate issued by the school authorities should be treated as a birth certificate. Since the school records were produced, the medical certificate issued by D.W.15 Exs.32 and 33 deserves no important. The learned counsel cited the decisions reported in (2011) 13 Supreme Court Cases 751 Shaw Nawaz ... Appellant Vs. State of Uttar Pradesh and Another ... Respondents A. Juvenile Justice (Care and Protection of Children) Rules, 2007-R.12-Juvenility Procedure to be followed in determination of age - Reliability of marksheet and/or school leaving certificate for determination of age of the accused - Held, entry relating to date of birth entered in marksheet as well as school leaving certificate are valid proofs determination of age of accused person-R.12 categorically envisages that medical opinion from Medical Board should be sought only when matriculation certificate or school certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available- Moreover both marksheet and school leaving certificate corroborated each other, and testimony of School Principal and clerk and mother of accused further corroborated the same ...". (2012) 9 Supreme Court Cases 750 AshwaniKumar Saxena ... Appellant Vs. State of MadhyaPradesh ... Respondent -Held, such inquiry is not expected to be an ".inquiry". of the sort contemplated under S.2(g) CrPC; only procedure laid down under R.12 of 2007 Rules needs to be followed and not that under CrPC-S.7A obliges Court to make inquiry only, not investigation or trial-Though S.7-A has used expressions". Court shall make an inquiry"., ".take such evidence as may be necessary". and ".but not an affidavit"., Court or Board can accept as evidence something more than an affidavit i.e. Court or Board can accept documents, certificates etc., as evidence, need not be oral evidence-R.12 has to be read along with S.7A-R.12(2) 5. Further the learned counsel for the accused person would contend that the Law is well settled that medical evidence is not a conclusive as per The Juvenile Justice (Care and Protection of Children) Act 2000. When the age is proved through school records medical evidence cannot be considered. (2012) 10 Supreme Court Cases 489 Abuzar Hosain Allias Gulam Hossain ... Appellant Vs. State of West Bengal ... Respondent Juvenile Justice (Care and Protection of Children) Rules, 2007-R.12-Juvenility-Post conviction claim-Material to prima facie establish necessity of inquiry into juvenility claim-Onus to produce, and evidentiary value of various types of documents-Manner of appreciation of evidence and standard of proof-Observing that documents enumerated in Re.12(3)(a)(i) to (iii) are definitely such materials, evidentiary value of statement recorded under S.313 Cr.PC school leaving certificate or voter's list obtained after conviction, affidavit of a relative, and medical opinion considered-Meaning and scope of expression ".glaring". case occurring in para 39.4 of main judgment (on this point) explained and elaborated upon by Thakur.J in his concurring judgment. -Cautioned (per curiam) that where plea of juvenility is raised for the first time, objectives of the 2000 Act should always be kept in mind and hypertechnical approach should not be adopted so that persons entitled to get benefits of that Act may not be deprived thereof-Instead of being influenced by general impression of mistrust of age recorded in school or age determined by medical opinion, the matter should be considered prima facie on basis of preponderance of probability. (2012) 8 Supreme Court Cases 763 Vijay Singh ... Appellant Vs. State of Delhi ... Respondent Juvenile Justice (Care and Protection of Children) Act 2000 SS.2(k), 2(1), 7-A, 20 and 49 (as amended by Act 33 of 2006 w.e.f. 22.08.2008) r/w Rr.12(3), (4) & (5) Juvenile Justice (Care and Protection of Children) Rules, 2007 Proof of age valid evidence Held, certificate from school (other than a play school) first attended, comes at second stage in order of priority for consideration after matriculate or equivalent certificate In instant case, appellant did not claim to be a matriculate, and hence, in support of his plea of juvenility had produced school leaving certificate authenticity of which was examined by the District Judge and also verified by Principal of School concerned Date of birth of appellant recorded in school admission register and corresponding entry in school leaving certificate was 1-12-1981-Thus, appellant was 16 years 3 months and 10 days old on date of commission of offence (alleged offence committed on 11-3-1998) Hence, appellant was entitled to benefit of Juvenile Justice Act-Penal Code, 1860-S.307-Evidence Act 1872, S.35 6.Further the learned counsel for the appellant would contend that D.W.2 is the illiterate mother of the accused also specifically stated that the date of birth of the accused is 10.09.1978. P.W.15 Dr.Vedanayagam who has conducted the Medical examination for the determination of the age of the accused Munusamy admitted at the time of cross examination that @//////,t;tHf;F vjphp KDrhkpf;F me;j neuj;jpy; njhuhakhf 18 taJf;F nkYk; 23 taJf;F cs;shft[k; ,Uf;f tha;g;g[z;L/ vjphp KDrhkpf;F18taJf;F fPH; 6 khjk; Fiwthf ,Uf;ft[k; tha;g;g[z;L/ ,d;iwanjjpapy; ,t;tHf;F vjphpf;F86/96y; 16taJf;F fPH; ,Uf;fKoa[k; vd;W vd;dhy; TwKoahJ/ 20 taJf;Fs;shd xU egiu kUj;Jt ghpnrhjid bra;jhy; mtUila taij rhpahf eph;zak; bra;aKoa[k;/ ,t;tHf;F vjphp ,d;iwa njjpapy; 20 tajpw;F nkyhdtuhifahy; 8/6/96y; mtUila taij ,d;iwa njjpapy; mWjpapl;L eph;zak; bra;aKoahJ/@ proves that the medical evidence in this case is a futile one.
7. Considering the facts and circumstances of the case, this Court is of the view that the accused Munusamy is a juvenile on the date of occurrence i.e. 08.06.1996 and the point is answered accordingly.
8. In the result, the accused Munusamy is a juvenile in conflict with law on the date of occurrence i.e. 08.06.1996.".
8. Learned counsel for the parties relied on a decision of the Supreme Court reported in 2011 (13) SCC751(Shah Nawaz Vs. State of Uttar Pradesh), relevant portion of which, reads as follows: ".23. The documents furnished above clearly show that the date of birth of the appellant had been noted as 18-6-1989. Rule 12 of the Rules categorically envisages that the medical opinion from the Medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.
24. We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proofs of evidence for determination of age of an accused person. The school leaving certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the school leaving certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-o-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18-6-1989 in the school leaving certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-o-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said School at Sl.No.1382 which have been proved by the statement of the Principal of that School recorded before the Board.
25. Apart from the clerk and the Principal of the School, the mother of the appellant has categorically stated on oath that the appellant was born on 18-6-1989 and his date of birth in his academic records from preparatory to Class X is the same, namely, 18-6-1989, hence her statement corroborated his academic records which clearly depose his date of birth as 18-6-1989. Accordingly, the appellant was a juvenile on the date of occurrence, that is, 4-6-2007 as alleged in the FIR dated 4-6-2007.
26. We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report.
27. In the light of the above discussion, we hold that from the acceptable records, the date of birth of the appellant is 18-6-1989, the Additional Sessions Judge and the High Court committed an error in taking a contrary view. While upholding the decision of the Board, we set aside the orders of the Additional Sessions Judge dated 13-1-2009 and the High Court dated 10-12-2010. Accordingly, the appellant is declared to be a juvenile on the date of commission of the offence and may be proceeded in accordance with law. The appeal is allowed.".
9. Learned counsel for the parties also relied on a decision of a Division Bench of this Court reported in 2013 (2) MWN (Cr.) 48 (DB) in the case of Jayavelu Vs. State and two others (in H.C.P.No.385 of 2012, order dated 15.4.2013), relating to the same facts and circumstances of the case pertaining to a juvenile, wherein, the Division Bench, after relying upon various decisions of the Supreme Court, observed as follows: ".83. In granting relief to the petitioner, now we come to his case. Now he is more than 37 of years old. He is in jail for more than 14 years. As per Section 16 of New J.J.
Act, 2000, as he is a Juvenile in conflict with law at the time of commission of the offence, he cannot be sentenced to life. As per Section 15 of the said Act, at the most he can be detained in a Special Home for 3 years. Now, he is in jail for more than 14 years. Following the mandate of the law and the decisions of the Hon'ble Apex Court, the petitioner has to be released from jail.
84. In the result, this Habeas Corpus Petition is allowed. The Superintendent, Central Prison, Vellore is directed to release the petitioner from jail forthwith, if his further custody is no longer required in connection with any other case. In view of Section 19 of the Juvenile Justice (care and protection of children) Act, 2000, petitioner shall not incur any disqualification because of his conviction and the period of sentence undergone by him.".
10. In order to consider the claim of juvenility of the detenu, it is significant to quote the relevant provisions of the Act/Rules, which reads as follows: Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended): Section 2: Definitions.--In this Act, unless the context otherwise requires,-- (k) ".juvenile". or ".child". means a person who has not completed eighteenth year of age; (l) ".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; Section 7-A: 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 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 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. Section 19: 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 this 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. Section 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. The Juvenile Justice (Care and Protection of Children) Rules, 2007: Rule 12: Procedure to be followed in determination of age:--(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (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, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.".
11. It is also significant to refer to a catena of decisions of the Honourable Supreme Court, on the claim of juvenility. (i) In PRADEEP KUMAR Vs. STATE OF UTTAR PRADESH [1995 SCC (Cri) 395]., a three-Judge Bench of the Hon'ble Apex Court finding that the accused was below 16 years of age on the date of commission of offence, held that as per the then provisions of Uttar Pradesh Children Act, he cannot be sentenced to life and as the accused had crossed 30 years, directed his release from Jail. (ii) In UPENDRA KUMAR Vs. STATE OF BIHAR, [2005 (3) SCC592, in a Criminal Appeal, under similar circumstances, the Honourable Supreme Court after coming to the view that now referring the Juvenile in conflict of law to the Juvenile Justice Board does not arise, sustained the conviction under Section 302 IPC, however, quashed his life sentence and ordered his release from jail. (iii) In VANEET KUMAR GUPTA @ DHARMINDER Vs. STATE OF PUNJAB, [2009 (17) SCC587, 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 commission of the offence; hence, the Honourable Supreme Court noticing the fact that he is in jail for several years, directed his release from jail. (iv) Similar view was taken by the Honourable Supreme Court in SATISH @ DHANNA Vs. STATE OF MADHYA PRADESH AND OTHERS, [2009 (14) SCC187 and in VIKRAM SINGH Vs. STATE OF HARYANA [2009 (13) SCC645. (v) In DHARAMBIR Vs. STATE (NCT OF DELHI), [2010 (2) SCC344, 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 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. (vi) In BHIM @ UTTAM GHOSH Vs. STATE OF WEST BENGAL, [2010 (14) SCC571, 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 but directed his release from jail. (vii) In MOHANA MALI Vs. STATE OF MADHYA PRADESH [2010 (6) SCC669, the petitioner was sentenced to life under Section 302 I.P.C by the trial Court and it was confirmed by the High Court. During his plea for appeal bail before the Apex Court, plea of juvenility was raised by him and it was accepted by the Hon'ble Apex Court and he was granted bail and expeditious disposal of his appeal was ordered. (viii) In LAKHAN LAL Vs. STATE OF BIHAR [2011 (2) SCC251, 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 had crossed 40 years of his age and he was in jail for more than 7 years. Under such circumstances, referring to DHARAMBIR's case (supra), the Honourable Supreme Court set aside his life sentence and directed his release. (ix) In AMIT SINGH Vs. STATE OF MAHARASHTRA & ANOTHER [2011(13)SCC744, 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 other sentences 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. (x) 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 have spent more than 3 years in jail and have also crossed 18 years of their age long back, the Court directed their release from jail. (xi) In SURESH @ SURESH KUMAR Vs. INSPECTOR OF POLICE AND OTHERS [2012 (4) MLJ (Crl) 194]., since on the date of the commission of offence, the petitioner, who was ultimately, awarded life sentence by the Hon'ble Apex Court was a Juvenile in conflict with law within the meaning of New J.J.
Act, 2000 and he was 43 years old and had spent 13 years in jail, this Court directed his release from jail. (xii) In S.MADHESWARAN Vs. STATE OF TAMIL NADU [2012 (Cri) L.J.
4398]., this Court referring to HARI RAM (supra) and AMIT SINGH (supra), and a three-Judge bench decision of the Hon'ble Apex Court in BABBAN RAI AND ANOTHER Vs. STATE OF BIHAR [AIR2008SC (Supp) 356]., the appellant having been entitled to the benefit under Juvenile Justice (Care and Protection of Children) Act, 2000 and already he had attained majority directed his release from jail. (xiii) In KALU @ AMIT Vs. STATE OF HARYANA [2012 (3) SCC (Cri) 761]., the Hon'ble Apex Court while confirming the conviction of the appellant by the Trial Court under Section 302 r/w 34 I.P.C, since the appellant was a Juvenile in conflict with law within the meaning of New Juvenile Justice (Care and Protection of Children) Act, 2000 on the date when the offence was committed, he was already in Jail for 9 years and attained his majority long back directed his release from jail and also noticing Section 19 of the J.J Act 2000 held that he shall not incur any disqualification because of its order. (xiv) In VIJAY SINGH Vs. STATE OF DELHI [2012(3) SCC (Cri) 1044]., the appellant who was convicted to 5 years rigorous imprisonment under Section 307 IPC, claimed that he was a Juvenile in conflict with law on the date of commission of offence and the Hon'ble Apex Court on the basis of the date of birth mentioned in his School Leaving Register and his Original Admission Register accepted his plea of juvenility and noticing that the appellant is in jail for more than 3 years directed his release from jail. (xv) In BABLA @ DINESH Vs. STATE OF UTTARAKHAND [2012 (3) SCC (Cri) 1067]., the appellant was sentenced to life under Section 302 r/w 149 I.P.C and on the basis of the report of the Sessions Judge, the Court accepted that the appellant was Juvenile in conflict with law on the date of commission of offence and since he was in jail for more than 3 years out of the maximum period prescribed under Section 15 of New J.J.
Act, 2000, set aside his life sentence and directed his immediate release from jail.
12. In view of the above decisions of the Supreme Court and this Court and bearing in mind the above provisions of the Act/Rules and taking into account the facts and circumstances of the case, while considering the relief sought for by the petitioner for setting the detenu at liberty, as he is now aged 34 years and is in jail for more than 11 years, as per Section 2(l) of the Act, as he was a ".juvenile in conflict with law". at the time of commission of offence, he cannot be sentenced to life and as per Section 15 of the Act, at the most, he could be kept in Special Home for three years and following the mandate of law and the decisions rendered by the Apex Court, we consider it appropriate that the detenu has to be set at liberty forthwith, as he was ".a juvenile in conflict with law". as per Section 2(l) of the Act, the date of commission of offence being 08.06.1996 and his date of birth being 10.09.1978 and his age was 17 years, 9 months and 28 days on the date of commission of offence, which has been confirmed by a roving enquiry conducted by the learned District Judge, who submitted the enquiry report, as quoted above.
13. The Constitution of India, has, in several provisions including clause (3) of Article 15, clause (e) and (f) of Article 39, Articles 45 and 47 imposed on the State, the primary responsibility of ensuring that all the needs of children are met and their prescribed human rights are fully protected. Further, rights of children have been protected in the national conventions and treaties. The United Nations adopted a convention on the rights of child and prescribed a set of standards to be adhered to by all the State authorities in securing the interest of the child. Further, it emphasized the social re-integration of child victims to the extent possible without resorting to judicial proceedings. On the above stated principles, the Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted and accordingly, it has brought certain rights from the earlier Act, namely, Juvenile Justice Act, 1986.
14. The Juvenile Justice (Care and Protection of Children) Act, 2000, was brought into force on 01.04.2001. The Act was aimed at providing a juvenile justice system for juveniles in conflict with law and children in need of care and protection by adopting a child friendly approach in the adjudication and disposition of matters in the best interests of children and for their rehabilitation keeping in view the developmental needs of the children.
15. As per Section 2 (h) of the old Juvenile Justice Act,1986, the detenu herein, who had not completed 18 years of age as on the date of commission of offence, is not a juvenile. But, as per Section 2(k) of the new Juvenile Justice Act,2000, he is a juvenile. On the date of offence, namely, 08.06.1996, 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 Act, he is a juvenile in conflict with law.
16. In Hari Ram v. State of Rajasthan and another, 2009 (13) SCC211 the Supreme Court has widened the scope of new Act, 2000. In the light of the Amendment Act 33 of 2006, the Apex Court viewed the applicability of the new Act to juveniles, who have committed the offence, when they were aged below 16 years, but have subsequently crossed 18 years of age on or before 01.04.2001. It was also held therein that if the juvenile in conflict with law was below 18 years when the offence was committed and subsequently he had crossed 18 years on or before 01.04.2001, still juvenility can be claimed. So, as per the said case, even now, the detenu can raise his juvenility at the time when he committed the offence and seek the benefits under the new Act. Therefore, the new Act as amended by Act 33 of 2006, has retrospective operation to the offences committed before 01.04.2001.
17. The new Act 2000 covers cases under the old 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 age, even after disposal of his case and even after crossing his 18 years of age, as per Section 7-A and explanation to Section 20, can claim juvenility at any stage of the case, trial, revision, appeal or in any other criminal proceedings. Hence, even if the case is over in the trial Court or in the next Appellate Court or Revisional Court or even in the Supreme Court, subsequently, in an independent proceeding, for the first time, the ex-juvenile in conflict with law can claim benefit under the new Act, 2000, based on his juvenility on the date of his commission of the offence.
18. It is also noteworthy to refer to the recent ratio laid down by the Supreme Court in the case of Salil Bali Vs. Union of India and another, in W.P.(C).No.10 of 2013, etc., dated 17.7.2013, reported in MANU/SC/0718/2013, which is illuminating to the question raised before this Court and it is useful to re-produce the relevant portion hereunder: ".38. Having regard to the serious nature of the issues raised before us, we have given serious thought to the submissions advanced on behalf of the respective parties and also those advanced on behalf of certain Non-Government Organizations and have also considered the relevant extracts from the Report of Justice J.S.Verma Committee on ".Amendments to the Criminal Law". and are convinced that the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended in 2006, and the Juvenile Justice (Care and Protection of Children) Rules, 2007, are based on sound principles recognized internationally and contained in the provisions of the Indian Constitution.
39. There is little doubt that the incident, which occurred on the night of 16th December, 2012, was not only gruesome, but almost maniacal in its content, wherein one juvenile, whose role is yet to be established, was involved, but such an incident, in comparison to the vast number of crimes occurring in India, makes it an aberration rather than the Rule. If what has come out from the reports of the Crimes Record Bureau, is true, then the number of crimes committed by juveniles comes to about 2% of the countrys crime rate.
40. The learned ASG along with Mr.Asthana and Mr.Kanth, took us through the history of the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules subsequently framed thereunder in 2007. There is a definite thought process, which went into the enactment of the aforesaid Act. In order to appreciate the submissions made on behalf of the respective parties in regard to the enactment of the aforesaid Act and the Rules, it may be appropriate to explore the background of the laws relating to child protection in India and in the rest of the world.
41. It cannot be questioned that children are amongst the most vulnerable sections in any society. They represent almost one-third of the worlds population, and unless they are provided with proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow will slip out of the hands of the present generation. International community has been alive to the problem for a long time. After the aftermath of the First World War, the League of Nations issued the Geneva Declaration of the Rights of the Child in 1924. Following the gross abuse and violence of human rights during the Second World War, which caused the death of millions of people, including children, the United Nations had been formed in 1945 and on 10th December, 1948 adopted and proclaimed the Universal Declaration of Human Rights. While Articles 1 and 7 of the Declaration proclaimed that all human beings are born free and equal in dignity and rights and are equal before the law, Article 25 of the Declaration specifically provides that motherhood and childhood would be entitled to special care and assistance. The growing consciousness of the world community was further evidenced by the Declaration of the Rights of the Child, which came to be proclaimed by the United Nations on 20th November, 1959, in the best interests of the child. This was followed by the Beijing Rules of 1985, the Riyadh Guidelines of 1990, which specially provided guidelines for the prevention of juvenile delinquency, and the Havana Rules of 14th December, 1990. The said three sets of Rules intended that social policies should be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice System for juveniles in conflict with law, to safeguard fundamental rights and to establish methods for social re-integration of young people who had suffered incarceration in prison or other corrective institutions. One of the other principles which was sought to be reiterated and adopted was that a juvenile should be dealt with for an offence in a manner which is different from an adult. The Beijing Rules indicated that efforts should be made by member countries to establish within their own national jurisdiction, a set of laws and rules specially applicable to juvenile offenders. It was stated that the age of criminal responsibility in legal systems that recognize the concept of the age of criminal responsibility for juveniles should not be fixed at too low an age level, keeping in mind the emotional, mental and intellectual maturity of children.
42. Four years after the adoption of the Beijing Rules, the United Nations adopted the Convention on the Rights of the Child vide the Resolution of the General Assembly No.44/25 dated 20th November, 1989, which came into force on 2nd September, 1990, India is not only a signatory to the said Convention, but has also ratified the same on 11th December, 1992. The said Convention sowed the seeds of the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, by the Indian Parliament.
43. India developed its own jurisprudence relating to children and the recognition of their rights. With the adoption of the Constitution on 26th November 1949, constitutional safeguards, as far as weaker sections of the society, including children, were provided for. The Constitution has guaranteed several rights to children, such as equality before the law, free and compulsory primary education to children between the age group of six to fourteen years, prohibition of trafficking and forced labour of children and prohibition of employment of children below the age of fourteen years in factories, mines or hazardous occupations. The Constitution enables the State Governments to make special provisions for children. To prevent female foeticide, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted in 1994. One of the latest enactments by Parliament is the Protection of Children from Sexual Offences Act, 2012.
44. The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the provisions of the Constitution and the various Declarations and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child, as was brought to our notice during the hearing. Of course, it has been submitted by Dr.Kishor that the description in Article 1 of the Convention was a contradiction in terms. While generally treating eighteen to be the age till which a person could be treated to be a child, it also indicates that the same was variable where national laws recognize the age of majority earlier. In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Along with physical growth, mental growth is equally important, in assessing the maturity of a person below the age of eighteen years. In this connection, reference may be made to the chart provided by Mr.Kanth, wherein the various laws relating to children generally recognize eighteen years to be the age for reckoning a person as a juvenile/ child including criminal offences.
45. In any event, in the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which represent the collective wisdom of Parliament. It may not be out of place to mention that in the Juvenile Justice Act, 1986, male children above the age of sixteen years were considered to be adults, whereas girl children were treated as adults on attaining the age of eighteen years. In the Juvenile Justice (Care and Protection of Children) Act, 2000, a conscious decision was taken by Parliament to raise the age of male juveniles/children to eighteen years.
46. In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles, as the materials produced before us show. The age limit which was raised from sixteen to eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, is a decision which was taken by the Government, which is strongly in favour of retaining Sections 2(k) and 2(l) in the manner in which it exists in the Statute Book.
47. One misunderstanding of the law relating to the sentencing of juveniles, needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of eighteen years, a juvenile who is found guilty of a heinous offence is allowed to go free. Section 15(1)(g), as it stood before the amendment came into effect from 22nd August, 2006, reads as follows: ".15(1)(g) make an order directing the juvenile to be sent to a special home for a period of three years: (i) in case of juvenile, over seventeen years but less than eighteen years of age, for a period of not less than two years; (ii) in case of any other juvenile for the period until he ceases to be a juvenile: Provided that the Board 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.". It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile. The said understanding needs to be clarified on account of the amendment which came into force with effect from 22.8.2006, as a result whereof Section 15(1)(g) now reads as follows: ".Make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board 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.". The aforesaid amendment now makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority.
48. There is yet another consideration which appears to have weighed with the worldwide community, including India, to retain eighteen as the upper limit to which persons could be treated as children. In the Bill brought in Parliament for enactment of the Juvenile Justice (Care and Protection of Children) Act of 2000, it has been indicated that the same was being introduced to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition of delinquent juveniles. The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed thereunder in 2007, is restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into mainstream society. The age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.
49. This being the understanding of the Government behind the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the amendments effected thereto in 2006, together with the Rules framed thereunder in 2007, and the data available with regard to the commission of heinous offences by children, within the meaning of Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, we do not think that any interference is necessary with the provisions of the Statute till such time as sufficient data is available to warrant any change in the provisions of the aforesaid Act and the Rules. On the other hand, the implementation of the various enactments relating to children, would possibly yield better results.
50. The Writ Petitions and the Transferred Case are, therefore, dismissed, with the aforesaid observations. There shall, however, be no order as to costs.".
19. To examine whether the detenu herein was a juvenile in conflict with law on the date of commission of offence i.e., 08.06.1996, this Court, on 14.03.2013, passed an order, directing the V Additional Sessions Judge, Chennai, to conduct a roving enquiry and submit a report. Accordingly, the V Additional Sessions Judge, Chennai, has submitted a report on 26.04.2013, giving a finding to the effect that the accused Munusamy was a juvenile in conflict with law on the date of occurrence i.e., 08.06.1996. The Date of Birth of the detenu is 10.09.1978 and he was aged 17 years 9 months and 28 days on the date of commission of offence. Considering the said factor and applying the provisions of the Act and also the principle laid down by the Supreme Court, it could be evident that the detenu was a juvenile in conflict with law on the date of commission of offence. When that being the position, there is no other option except to extend the benefit of the legislation to the detenu, who was a juvenile in conflict with law.
20. In the light of the above stated legal position and the Act being a beneficial Legislation and having considered the fact that on the date of occurrence, the detenu R.Munusamy S/o.Ramachandran, was a 'juvenile in conflict with law' as per Section 2(l) of the Act, the detenu R.Munusamy, is directed to be set at liberty forthwith. The Superintendent of Prison, Central Prison, Puzhal, Thiruvallur District, is directed to release the detenu R.Munusamy S/o.Ramachandran, forthwith from jail, unless his custody is required in connection with any other case. In view of Section 19 of the Act, the detenu shall not incur any disqualification because of his conviction and the period of sentence undergone by him. In fine, the Habeas Corpus Petition is allowed. [V.D.P.,J.]. [C.T.S.,J.]. 31.07.2013 Index : Yes/No Internet : Yes/No gm/abe To :
1. The Superintendent, Central Prison, Puzhal, Thiruvallur District.
2. The Inspector of Police, R-4 Pondy Bazaar Police Station, Chennai.
3. The Public Prosecutor, High Court of Madras, Chennai 600 104. V.DHANAPALAN,J.
AND C.T.SELVAM,J.
gm/abe Order in H.C.P.No.2173 of 2012 Dated:
31. 07.2013