ORDER
R. Basant, J.
1. The concurrent verdict of guilty, conviction and sentence imposed on the petitioner/ first accused under Section 394 IPC are assailed by him in this R.P.
2. The charge against the petitioner/first accused is that he along with the second accused waited outside the house of PW.1 on the night of 20.5.89. When PW.1, a woman aged more than 60 years, came out of her house to go to toilet at about 1.15 a.m., he along with the second accused caught hold of her, gagged her mouth and took away. MO.1 gold chain, MO.2 gold studs and MO.3 silver waist cord worn by her. Both the accused were working as employees of the brother-in-law of the victim PW. 1. She was hence able to identify both of them. She lodged an FIR before the police on the very next day i.e. at 9 p.m. on 21.5.89 while she was undergoing treatment at the Hospital. In the attack, she had suffered injuries and was hospitalised for treatment of such injuries. Later both accused persons were arrested. MO.2 ornament was recovered from the possession of PW.7 with whom the petitioner/accused had pledged the same. MO. 1 gold chain was seized from the house of the petitioner/first accused by the police. MO.3 waist cord was recovered from the possession of PW.6 to whom the second accused had handed over the same after the incident. Recovery of MOs.1 to 3 were made under Section 27 of the Evidence Act. After completing the investigation charge sheet was filed by the police.
3. Both the accused persons denied the offence alleged against them. Thereupon the prosecution examined PWs.1 to 15. Exts.P1 to P9 were marked. M.Os. 1 to 4 were also marked.
4. PW.1 is the victim lady. Ext.Pl is the F.I. Statement lodged by her. PW.2 is a co-worker of A1 and A2. He had allegedly seen both the accused near the scene on the previous day. PW.3 is the son of PW. 1 and PW.4 is the son-in-law of PW. 1. They were both available in the house where PW. 1 was residing. PW.5 is a co-worker of accused 1 and 2. PW.6 is the earlier employer of the second accused to whom he had allegedly handed over MO.3 after the incident. It was seized from him under Ext.P2 seizure mahazar. PW.7 is an attestor to Ext.P3 seizure mahazar under which MO.2 which was pledged by A1 after the incident was recovered under Section 27 of the Evidence Act. PWs.8 and 9 are Doctors who had initially seen and treated PW. 1. Ext.P4 is the wound certificate issued by PW.8 and P6 is the intimation issued by the Doctor. PW. 10 is an attestor to Ext.P5 seizure mahazar for recovery of MO. 1 from the house of A1. PW.11 attested Ext.P8 scene mahazar. PW.12 is a goldsmith who has signed as attestor to both Exts.P2 and P5. He confirmed that the MOs. 1 and 2 are made of gold. PWs. 13 to 15 are police officials who had various roles to play in the registration of the crime, its investigation and the filing of chargesheet. Ext.P7 is the FIR registered on the basic of Ext.P1 and Ext.P9 is a report submitted by the Investigating Officer to the court. I have already referred to MO.1 to 3. MO.4 is a lungi worn by PW.1.
5. The accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the prosecution has succeeded in proving the offence alleged against both the accused. Accordingly they proceeded to pass the impugned judgment. The second accused appears to have accepted the verdict. It is submitted at the Bar that he has not challenged his conviction in revision.
6. Before me the learned counsel for the revision petitioner/first accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant, first of all raises a new contention with the help of a certificate issued by the Head Master of the School, where the petitioner was studying, that the petitioner/first accused was a juvenile (born on 3.5.74) on the date of the crime-night of 20.5.89. He was hence below the age of 16 years and hence a juvenile. The entire proceedings before the courts below is hence void and without jurisdiction, contends the learned counsel for the petitioner. He further alternatively contends that the verdict of guilty, conviction and sentence do also warrant interference.
7. I shall, first of all consider whether the impugned verdict of guilty and conviction do warrant interference. I am conscious of the fact that strictly speaking this procedure adopted by this Court may not be wholly correct. But I do take note of the fact that the incident had taken place as early as in 1989 and a period of one and a half decades have rolled by. If this Court finds that the verdict of guilty and conviction are not sustainable, I am certainly of opinion that the petitioner/accused who is no more a juvenile must be saved of the trauma of further proceedings against him. It is with this intention that I proceed to consider whether the finding that the accused/petitioner has committed the offence is correct or it does warrant interference.
8. I have already adverted to the oral and documentary evidence available. PW. 1, the victim had identified accused 1 and 2. Convincing support is available for her identification of accused 1 and 2 from the narration of the incident by her in Ext.P1 F.I. Statement. The assertion of PW. 1 that accused 1 and 2 are known to her, which statement appears in the earliest document Ext.P1, is sufficiently inspiring. Of course a dispute has been raised about the availability of light. We have convincing indication that PW. 1, an old lady ventured to go out of her house to the toilet. That fact must itself indicate that it could not have been pitched darkness and some light must certainly have been available from whatever source to enable PW. 1 to proceed from her house to the toilet. While appreciating the evidence of PW.1 that she was able to identify A1 and A2, this crucial fact must certainly be borne in mind. It must also be taken note of that there is not a semblance of a suggestion that PW. 1 has any motive of ill will which could have persuaded her to falsely implicate accused 1 and 2. The evidence clearly shows that accused 1 and 2 were employees of the brother in law of PW.1 and in these circumstances the evidence tendered by PW.1 of identification of A1 and A2 does not deserve to be approached with any amount of inherent doubt, suspicion or distrust.
9. Convincing assurance for the evidence of PW.1 is available from the evidence tendered by the Investigating Officer that the petitioner/first accused made a confession statement on the basis of which MOs.1 & 2 were recovered under Exts.P3 and P5 under Section 27 of the Evidence Act. I find absolutely no reason to throw overboard the evidence of the Investigating Officer and the attestors to the recovery mahazars that MOs.1 and 2 were recovered on the basis of the confession statement given by A1 to the Investigating Officer.
10. This I am satisfied that there is absolutely nothing wrong in the concurrent verdict of guilty and conviction of the court below. The finding that the petitioner is guilty of the offence alleged against him is thus eminently correct and does not call for interference by invoking the revisional jurisdiction of superintendence and correction vested in this Court.
11. The next question to be considered is whether the petitioner is a juvenile. It is true that this contention was never raised before the trial court or the appellate court. This contention is being raised now for the first time before this Court. The learned counsel for the petitioner contends that for reasons which are not attributable to the accused, his counsel had not raised such a specific contention before the court below. The law as it then stood under the Juvenile Justice Act 1986, a person (male) would be a juvenile only if he has not crossed the age of 16 years. The police did not make any enquiries to authentically ascertain the age of the accused. Not to be thrown into a controversy regarding the age of the petitioner, they conveniently showed his age as 17 years so that the Juvenile Justice Act, 1986 would not apply. The learned Magistrate did not pointedly consider this question. This is incorrect submits the learned counsel. He relies on the document produced before this Court which, for the sake of easy reference, I am marking as Ext.D1. No serious objection is raised on behalf of the State by the learned Public Prosecutor against the acceptance of Ext.D1. It clearly shows that the petitioner was a child aged only 15 years and one month on the date of the offence as also on the date on which he was produced for the first time before the court after arrest on 24.5.89. Therefore there can be no semblance of a doubt in the mind of this Court now that the petitioner, on the date of the offence as also on the date on which he was produced before a court was a juvenile aged less than 15 years and one month. Whether we go by the Juvenile Justice Act, 1986 or the Juvenile Justice Act, 2000 it is thus very evident that the petitioner was a child both on the date of commission of the offence as also on the date of his production before the learned Magistrate. In these circumstances it is not necessary for this Court to go into the controversy as to whether the age has to be reckoned as on the date of commission of the offence or as on the date of production of the petitioner before the court for the first time.
12. In the decision reported in Umesh Chandra v. State of Rajasthan (AIR 1982 SC 1057) a three Judge Bench of the Supreme Court took the view that the age has to be ascertained and reckoned as on the date of commission of the offence. Later a two Judge Bench of the Supreme Court, without taking note of Umesh Chandra's decision cited supra, in Amrit Das v. State of Bihar (AIR 2000 SC 2264) took the view that the crucial date with reference to which age has to be ascertained and reckoned is the date on which the indictee is brought before the court and not the date of commission of the offence. Later, realising this incongruity, a reference of the question was made by the latter court to a Constitution Bench. In Amrit Das v. State of Bihar (AIR 2001 SC 3575), the larger Bench did not choose to consider the question on the ground that the question did not really arise for decision in the latter case, the child in that case having attained the crucial age both on the date of commission of the offence and on the date on which he was produced before the court. Thus it is evident that it is the decision in Umesh Chandra's case which hold the field even now.
13. The learned counsel for the petitioner has drawn my attention to the decision reported in Gopinath Ghosh v. State of West Bengal (1984 SCC Criminal 478) and particularly to paragraph 13 of the said judgment which I extract below.
'Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of a convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the first time in this Court and this Court is required to start the inquiry afresh. Ordinarily this Court would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, the court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in this Court. A way has therefore, to be found from this situation not conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation. We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special Acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law. This procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated'.
14. The learned counsel for the petitioner contends that the learned Magistrate erred grossly in not making attempts to ascertain the age of the petitioner shown as 17 only in the final report, in spite of the very specific directions which were given by the Supreme Court in paragraph 13 extracted above.
15. I have no hesitation to agree with the learned counsel for the petitioner that every court is obliged to apply its mind and come to a definite and positive finding about the age of the indictee in a case like the instant one before proceeding to take up the case and deal with the indictee. The learned Magistrate had obviously not complied with the mandate of law before choosing to proceed further against the petitioner.
16. Be that as it may, what is the next step to be taken by this Court? It is easy to come to the conclusion that the entire trial is vitiated as a court other than the juvenile court under the Juvenile Justice Act, 1986 had conducted the trial in the instant case. Further he has been tried along with a non juvenile which is specifically barred under Section 24 of the Juvenile Justice Act 1986. The trial can be set aside and the petitioner can be directed to be dealt with in accordance with the provisions of Juvenile Justice Act now in force. Should that be done? Should the petitioner be subjected to the trauma of a further trial when I have already come to the conclusion on the basis of the materials which are placed before me that the finding that petitioner has committed the offence is correct?
17. There is one more dimension to the question. Even though the Juvenile Justice Act, 2000 has come into force and the Juvenile Justice Act, 1986 has been repealed, the structures have not come into place yet. The rules have been promulgated only very recently though the Act came into force much earlier. Though the Juvenile Justice Board alone is competent to deal with a child in conflict with the law now, no such Juvenile Justice Board has been constituted. This Court cannot therefore send the petitioner to a Juvenile Justice Board constituted under Juvenile Justice Act, 2000 to continue further proceedings.
18. The decision of a Division Bench of this Court in Parvathy v. The Superintendent, Corporation Relief Centre (2002 (1) KLT 523), is in this context of crucial relevance. The Division Bench took note of the fact that structures contemplated under the Juvenile Justice Act, 2000 have not come into place.
19. Accepting the theory that law abhors, a vacum and a vacum cannot be permitted to remain, the Division Bench observed that in the absence of a Child Welfare Committee constituted under Section 29 of the Juvenile Justice Act, 2000, it shall be possible/ permissible for all Judicial Magistrate of the First Class to exercise such powers of the Child Welfare Committee until the Child Welfare Committees are constituted under the Juvenile Justice Act, 2000.
20. The powers of this Court under Section 482 Cr.P.C. are indeed sweeping. They have been described to be awesome. At times, even justice beyond the law will have to be attempted to be achieved by resorting to the provisions under Section 482 Cr.P.C. Adopting the principle underlying 2001 (2) KLT 523, cited supra and to avoid a vacum and to ensure ends of justice, it can certainly be held that until a Juvenile Justice Board is constituted in accordance with the Juvenile Justice Act, 2000 and the Rules promulgated, all Judicial First Class Magistrates or all Chief Judicial Magistrates shall be competent to exercise functions of the Juvenile Justice Board. Considering the fact that in Kerala, the Chief Judicial Magistrates sitting alone used to discharge functions of the Juvenile Courts under the Juvenile Justice Act. 1986, it can certainly be held by invoking powers under Section 482 Cr.P.C., that the Chief Judicial Magistrates must exercise such functions of the Juvenile Justice Board to be constituted under Section 4 of the Juvenile Justice Act, 2000. Until the Boards are constituted the only safety valve is to stipulate that the Chief Judicial Magistrates shall have to exercise such functions. What I want to take note of in this case is that a properly constituted Juvenile Justice Board is yet not available to whom this Court can now direct the petitioner if the entire proceedings so far initiated against him were held to be vitiated and hence void.
21. We now come to the provisions of Section 20 of the Juvenile Justice Act, 2000. Section 20 of the Juvenile Justice Act, 2000 as also Section 26 of the Juvenile Justice Act, 1986 deal with situations where on the date of commencement of the respective Acts, proceedings are pending before any court in respect of juveniles. Such proceedings are to be disposed of as if the respective Juvenile Justice Act had not been passed. Such courts, before which proceedings are pending in respect of the juveniles must proceed and record a finding whether the juvenile has committed offence or not. After recording such finding, such court is to refer the juvenile to Juvenile Justice Board so that appropriate orders under Section 15 of the 2000 Act (and the corresponding provision under the 1986 Act) can be passed by such Juvenile Justice Board. Section 20 of the Juvenile Justice Act, 2000 may also not specifically apply as the said provision obliges the courts to continue with the proceedings as if the Act had not been passed. If the 2000 Act had not been passed, proceedings must continue under the 1986 Act - before the Juvenile Courts constituted under the 1986 Act and if 1986 Act were not passed proceedings have to continue under the Children Act applicable to Kerala. Therefore strictly speaking even Section 20 may not apply to the case on hand as the trial is vitiated and even if the 2000 Act had not been passed, proper trial cannot continue except under the Juvenile Justice Act, 1986. Section 20 of the 2000 Act and Section 26 of the 1986 Act cannot be read and understood to mean or authorise continuation of the trial till the stage of imposition of sentence, if such trials are otherwise illegal or without jurisdiction.
22. I also take note of Section 6(2) of the Juvenile Justice Act, 2000. It declares that the powers conferred on the Board under the Act can also be exercised by the High Court and the Court of Sessions when the proceedings come before them in appeal, revision or otherwise. I feel that Section 6(2) of the Juvenile Justice Act, 2000 can be given meaning and effect so that this Court can persuade itself to exercise the powers of Juvenile Justice Board notwithstanding the fact that the trial held is vitiated and is not in accordance with law.
23. I make it clear that I am convinced that the ideally correct course legally to be followed by this Court is to set aside trial held against the petitioner and send the matter back to the Juvenile Justice Board constituted under the Juvenile Justice Act, 2000 (or until such Board is constituted, to such authority who can exercise the powers of the Juvenile Justice Board under the Act). But such a course would, in the facts of this case, cause great injustice. It would amount to miscarriage of justice. The petitioner will have to unnecessarily stand the trauma of trial. The State will have to unnecessarily bear the expenditure of a further trial now. In any view of the matter, I am satisfied that in the peculiar facts of this case, such technically ideal course which this Court can follow will not cater to the ends of justice. I am in these circumstances satisfied that powers under Section 482 Cr.P.C. can be invoked. The provisions of Section 20 and Section 6(2) of the Juvenile Justice Act can be borne in mind and this Court which is competent to exercise the powers of the Juvenile Justice Board under Section 6(2) of the Act can come to a finding that the petitioner has committed the offence. Appropriate orders under Section 15 can also be passed by this Court to avoid further protraction and infliction of trauma on the petitioner/accused.
24. I do in these circumstances come to the specific and definite conclusion that there are materials placed before court to come to the conclusion that the petitioner has committed the offence under Section 394 IPC. He need not be convicted. He cannot be sentenced. The nature of the orders that a Juvenile Justice Board can pass, are enumerated under Section 15 of the Juvenile Justice Act, 2000. The nature of orders that cannot be passed against the juveniles are enumerated in Section 16 of the Act.
25. What would be the proper order to be passed under Section 15 of the Juvenile Justice Act in the given circumstances, is the next question to be considered. The petitioner cannot be sentenced to imprisonment. He cannot be committed to prison in default of payment of fine. I take note of the elapse of a long period of time after commission of the offence and after commencement of proceedings. I take note of the fact that the petitioner is, on his own showing now aged about 29 years. I take note of the undisputed evidence available in the case that the petitioner was working under a relative of PW. 1 when the offence was committed by him. He was aged less than 15 years on the date of the offence. This therefore, according to me, is a fit case where this Court would be justified in directing payment of fine under Section 15(1)(d) of the Juvenile Justice Act, 2000, of course without imposing any default sentence as the same is prescribed by Section 16.
26. After considering all relevant inputs, I am satisfied that the proper and just course that this Court can now follow in the given circumstance is to enter a finding that the petitioner was a juvenile on the day of the alleged offence, affirm the finding that he has committed the offence as alleged and direct him to pay a fine of Rs. 3,000/- without imposing any default sentence. I repeat that such a course is being adopted by this Court, drawing inspiration from Section 482 Cr.P.C. though convinced that this may not be the ideal course that can be followed in all cases.
27. In the result
a) This Revision Petition is allowed in part.
b) The impugned conviction and sentence imposed on the petitioner by the courts below are set aside.
c) It is held that on the materials available, the prosecution has succeeded in proving that the petitioner has committed the offence punishable under Section 394 IPC and he a juvenile on the date of commission of the offence deserves to be dealt with under Section 15 of the Juvenile Justice Act, 2000.
d) If is further directed that the petitioner shall pay a fine of Rs. 3,000/- (Three thousand only) under Section 15(1)(d) of the Juvenile Justice Act, 2000.
28. The petitioner shall pay the fine amount before the learned Magistrate on or before 22.1.2004. If the fine amount is not paid by then, the learned Magistrate shall be at liberty to initiate necessary steps to recover the amount of fine in accordance with law - of course not by imposing any default sentence.