PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus, directing the respondents to produce the detenu, namely, S.Madheswaran, s/o.Sengodan, confined as life convict with CT.No.332, in Central Prison, Coimbatore, before this Court and set him at liberty.
O R D E R
P.DEVADASS, J.,
1. The petitioner, a lifer, lodged in Central Prison, Coimbatore, seeks his release from jail as he was a 'juvenile in conflict with law' at the time when he has committed the offence.
2. Before the learned III Additional Sessions Judge, Salem, in S.C.No.9 of 2001, the petitioner was prosecuted as A6 for having killed one Vasudevan along with others on 21.08.1999, in Pullagoundampatti, in Salem District.
3. On 28.02.2002, the said Judge, convicted and sentenced him as under:-
Sl. No. Conviction
Sentence
1. U/s. 148 IPC
Two years rigorous imprisonment
2. U/s. 341 IPC
One month simple imprisonment
3. U/s. 302 r/w 149 IPC
Life imprisonment and fine Rs.1,000/- in default 3 months rigorous imprisonment.
The learned Judge also directed all the sentences to run concurrently.
4. As against the said conviction and sentences, petitioner preferred Crl.A.No.700 of 2002 to this Court. On 26.10.2004, this Court dismissed the Criminal Appeal and confirmed the conviction and the sentences. Thereafter, he filed SLP(Criminal) before the Honourable Supreme Court. On 18.11.2005, it was also dismissed.
5. At this juncture, petitioner filed this Habeas Corpus Petition claiming juvenility at the time when he has committed the offence.
6. What is important when juvenility is raised is determination of the age of the person on the date when he has committed the offence. In this case, the date of offence is 21.08.1999. So, ascertainment of his age as on 21.08.1999 becomes important.
7. In the circumstances, on 10.02.2012, this Court directed the Trial Court to determine his age as on the date of commission of the offence.
8. Accordingly, the learned First Additional Sessions Judge, Salem conducted enquiry and submitted his report holding that as on 21.08.1999, the age of the petitioner was 17 years, 9 months and 13 days.
9. The petitioner claims that he was born on 08.11.1981 to Sengodan and Ruckmani. Ruckmani, as P.W.3 had stated that the petitioner was born to her in her house on 08.11.1981 and she did not register his birth with the Registrar of Births. She had furnished the said date of birth when she had admitted him in the school. In Exs.X4 and X5 School Transfer Certificates, petitioner's date of birth has been mentioned as 08.11.1981. P.W.2 Jayanthi, Teacher, Government Higher Secondary School, Kumarapalayam, produced Exs.X2 and X3 Admission Register Extract. In these records, in the entry relating to the admission of the petitioner his date of birth has been mentioned as 08.11.1981 and his father's name Sangodan also has been mentioned.
10. The learned Additional Public Prosecutor did not dispute the said age determined by the said Court.
11. Considering the oral and documentary evidence adduced, we concur with the finding of the learned First Additional Sessions Judge, Salem determining his age as on 21.08.1999 at 17 years, 9 months and 13 days. Thus, on the date when the offence was committed, the petitioner was below 18 years.
12. The offence was committed on 21.08.1999. During that time, the old Juvenile Justice Act,1986 was in force. As per its Section 2(h), on the date of the commission of the offence, if the juvenile is a male, he must be below 16 years and if it is a female, she must be below 18 years. Now, as per Section 2(l) of the present Juvenile Justice(Care and Protection of Children) Act, 2000, as amended by Act No.33 of 2006, a uniform age, namely, below 18 years has been prescribed both for the male and female juveniles.
13. In HARIRAM Vs. STATE OF RAJASTHAN AND ANOTHER [2009 (13) SCC 211], the Honourable Supreme Court held that the new Juvenile Justice Act,2000 will also cover juveniles, who have not completed their 18 years of age on or before 01.04.2001, the date on which the Act was brought into force.
14. Recently, in SURESH @ D.SURESHKUMAR Vs. THE INSPECTOR OF POLICE AND OTHERS(CDJ 2012 MHC 3086), this Court observed as under:-
30. HARI RAM (supra) made clear the effect of the New J.J. Act, 2000 as amended by Act No.33 of 2006. HARI RAM (supra) widened the scope of the New J.J. Act, 2000. In the light of Amending Act No.33 of 2006, HARI RAM (supra) viewed the applicability of the New J.J. Act, 2000 to the Juveniles who have committed the offence, when they were below 16 years but, have subsequently crossed their 18 years of age on or before 01.04.2001. HARIRAM (Supra) held that if the Juvenile in conflict with law was below 18 years when the offence was committed and susbequently he had crossed 18 years, it may be before 01.04.2001 or even on that day, still the juvenility can be claimed. So, the New J.J. Act, 2000 as amended by Act No.33 of 2006 has retrospective operation to the offences committed before 01.04.2001.
31. So, the New J.J. Act,2000 covers cases under the Old J.J. 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 his age, even after disposal of his case, even after crossing his 18 years of age, as per Section 7A and Explanation to Section 20, he can claim juvenility at any stage of the case, trial, revision, appeal or any other criminal proceedings. So, even if the case is over in the Trial Court or in the next Appellate Court or even in the Honourable Supreme Court, subsequently in an independent proceedings, for the first time, the ex-juvenile in conflict with law can claim benefit under the New J.J. Act,2000 based on his past juvenility on the date of commission of the offence.
15. So, although when the offence was committed the Old J.J. Act,1986 was in force and he was below 16 years, now as per the provisions of the New J.J.Act,2000 and the law laid down by the Hon'ble Apex Court, the petitioner is a juvenile in conflict with law.
16. Petitioner is a juvenile in conflict with law entitled to the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000. His conviction and sentences recorded by the Trial Court has been confirmed by this Court and also by the Hon'ble Supreme Court. Till Hon'ble Supreme Court, he did not claim juvenility, he had claimed it for the first time before this Court in this writ petition.
17. As per the proviso to Section 7A and the Explanation to Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, juvenility can be raised before any court, at any stage, in any proceedings, even after the final disposal of the case.
18. In this connection, it is apposite to note the following observations of this Court made recently in SURESH @ D.SURESHKUMAR Vs. THE INSPECTOR OF POLICE AND OTHERS(CDJ 2012 MHC 3086):-
32. In ANIL AGARWALA AND ANOTHER Vs. STATE OF WEST BENGAL [2012 Crl. L.J. 1185 (SC)] when the Calcutta High Court rejected the juvenility claimed by the accused as belated the Honourable Supreme Court referring to Section 7A of the New J.J. Act, 2000 set aside the Judgment of the High Court, since it is incompatible with the provisions of New J.J. Act, 2000 and held that the juvenility can be raised at any time even after the final disposal of the case.
33. In AMIT SINGH (supra), the conviction and sentence recorded as against the appellant were confirmed by the Bombay High Court and their Special Leave Petition (Criminal) was dismissed by the Honourable Supreme Court and thereafter, the accused filed Habeas Corpus Petition under Article 32 of the Constitution of India before the Honourable Supreme Court, in Writ Petition (Criminal) No.16 of 2010 and for the first time, claimed juvenility, the Honourable Supreme Court referring to HARI RAM (supra), accepted his claim and directed his release from custody.
34. In the case before us, the II Additional Sessions Court, Chennai sentenced the petitioner to death and also to 10 years rigorous imprisonment and merged it with the death sentence. However, in the Criminal Appeal filed by him, he was acquitted by this Court. But, in the Appeal filed by the State, the Honourable Supreme Court set aside the order of acquittal, restored the conviction of the Trial Court and awarded him life sentence. Thus, till the Honourable Supreme Court the petitioner did not claim juvenility. Now, he filed Habeas Corpus Petition under Article 226 of the Constitution of India claiming junvenility for the first time in this Court. In the prior proceedings till the Honourable Supreme Court there was no occasion for any of the Court to consider his juvenility. After the final disposal of his Case/Criminal Appeal by the Honourable Supreme Court he claims juvenility for the first time in this Court in this Writ proceedings. Merely because he has raised it at a belated stage, it cannot be rejected (see ANIL AGARWALA (supra).
35. In pursuance of the proviso to Section 7A and Explanation to Section 20 and as per the dictum of the Honourable Supreme Court in HARI RAM (supra) and in AMIT SINGH (supra), he can claim juvenility in any proceedings, before any court and at any stage of the case. It includes, a Habeas Corpus Petition under Article 226 of the Constitution of India. By its nature it is also a criminal proceedings. Article 21 of the Constitution of India guarantees that no one shall be jailed expect as per law. It also guarantees that no one shall be punished, detained in jail except in accordance with law. So, no one shall be jailed as against the provisions of J.J. Act, more particularly, in violation of S.15,16 of New J.J.Act,2000 (also see S.7A and S.20, New J.J.Act,2000). Thus, even after the final disposal of his case by the Honourable Supreme Court, in this independent proceedings under Article 226 of the Constitution of India, petitioner can claim juvenility.
19. Thus, even now, in this Habeas Corpus petition under Article 226 of the Constitution of India, the petitioner can seek the benefit of the New J.J. Act,2000.
20. As per Section 16 of the Juvenile Justice Act,2000, no death sentence or life sentence could be awarded to a 'juvenile in conflict with law'. As per its Section 15, at the most, a juvenile in conflict with law can be detained in a Special Home up to three years.
21. Now, the petitioner is running 31 years. As on date, he is in jail for more than 10 years. He is a juvenile in conflict with law. So, he cannot be sentenced to life. He can be detained in a Special Home up to three years. Now, it is impracticable and unrealistic to send him to such home to serve 3 years in the Special Home. Further, he has been in jail for more than 10 years.
22. In UPENDRA KUMAR Vs. STATE OF BIHAR, [2005 (3) SCC 592], in a Criminal Appeal, under similar circumstances, the Honourable Supreme Court after coming to the conclusion that the question of referring the appellant to Juvenile Justice Board does not arise, sustained his conviction under Section 302 of IPC, however, quashed his life sentence and ordered his release from jail.
23. In VANEET KUMAR GUPTA @ DHARMINDER Vs. STATE OF PUNJAB, [2009 (17) SCC 587], 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 offence the Honourable Supreme Court noticing that he is in prison for very many years, directed his release from jail.
24. Similar view also has been taken by the Honourable Supreme Court in SATISH @ DHANNA Vs. STATE OF MADHYA PRADESH AND OTHERS, [2009 (14) SCC 187] and in VIKRAM SINGH Vs. STATE OF HARYANA [2009 (13) SCC 645].
25. In DHARAMBIR Vs. STATE (NCT OF DELHI), [2010 (2) SCC 344], 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 he 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.
26. In BHIM @ UTTAM GHOSH Vs. STATE OF WEST BENGAL, [2010 (14) SCC 571], 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 and directed his release from jail.
27. In LAKHAN LAL Vs. STATE OF BIHAR [2011 (2) SCC 251], 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 has crossed 40 years of his age and he was in jail for more than 7 years. Under these circumstances, referring to DHARAMBIR (supra), the Honourable Supreme Court set aside his life sentence and directed his release.
28. In AMIT SINGH Vs. STATE OF MAHARASHTRA AND ANOTHER(2011(13)SCC 744), 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 the other sentence 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.
29. In NAMBUTHAI Vs. STATE REP. BY THE INSPECTOR OF POLICE, THOOTHUKUDI SOUTH POLICE STATION [H.C.P.(MD) No.488 of 2011 decided on 18.08.2011] (unreported), when the writ petitioner, who was a lifer and whose Criminal Appeal was already dismissed by this Court when claimed juvenility in the Habeas Corpus Petition, the Court on evidence accepting his claim directed his release from jail.
30. Exactly under similar circumstances, 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 they have spent more than 3 years in jail and they have also crossed 18 years of their age long back, the Court directed their release from jail.
31. In BABBAN RAI AND ANOTHER Vs. STATE OF BIHAR[2008 Cri.L.J 1038], a three Judge-Bench of the Hon'ble Supreme Court, after coming to the conclusion that the appellants are juvenile in conflict with law and are entitled to the protection of the Juvenile Justice (Care and Protection of Children) Act, 2000, set aside their life sentences and as they have already attained majority released them from jail as they cannot be sent to remand Home.
32. Very recently, in SURESH @ D.SURESHKUMAR(supra), this Court held as under:-
53. Since the petitioner is running 43 years and he was in jail for 13 years, as he is a Juvenile in conflict with law at the time of his commission of the offence and as per Section 16 of the New J.J. Act, 2000, that no Juvenile in conflict with law shall be sentenced to death or to life and following the decisions which we have seen already, the petitioner has to be released from jail.
33. In the light of the statutory provisions and the decisions seen above, in the case before us, on the date, when the offence was committed, petitioner being a juvenile in conflict with law entitled to the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000, as such as per Section 16 of the Act, he cannot be sentenced to life, so he has to be freed from jail.
34. In the result, this Habeas Corpus Petition is allowed. The Superintendent, Central Prison, Coimbatore is directed to release the petitioner/detenu from jail forthwith, if his further custody is no longer required in connection with any other case.