Dipak Nama Vs. State of Tripura - Court Judgment

Saha, J.

1. The instant criminal appeal is filed by the appellant, challenging the judgment dated 29-6-2005 passed by learned Addl. Session Judge, North Tripura, Dharmanagar in Case No. ST 57 (NT/D) of 2004 and the order of sentence dated 30-6-2005 in the aforesaid Sessions Trial case wherein after considering the evidence on record the appellant was convicted under S.302, I.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, i.e. to make payment of fine to suffer further RI for six months.

2. Heard Mr. S. Chakraborty, learned counsel for the appellant as well as Mr. D. Sarkar, learned Public Prosecutor for the State-respondent.

3. When the appeal was pending a plea of juvenility was taken up by the appellant in a criminal miscellaneous case being No. Crl. Misc. Case No.95/2012, wherein he also prayed for adducing additional evidence to prove his plea of juvenility. This Court vide order dated 5-6-2012 in the aforesaid Crl. M. Application directed the learned Addl. Sessions Judge, North Tripura, Dharmanagar to submit his report after conducting a proper inquiry on the plea of juvenility of the convict appellant. In the said order it was also mentioned that at the time of inquiry, learned Addl. Sessions Judge would also examine the Head Master of the Pearacherra TE High School who had issued the certificate dated 23-12-2011. The learned Addl. Sessions Judge was also directed to examine the Admission Register of the School relating to the convict-appellant or any other document as he thinks fit and proper for deciding the issue.

4. In terms of the order dated 5-6-2012 of this Court, the learned Addl. Sessions Judge submitted his report on 25^th June, 2012 along with the photocopy of the Admission Register as well as the statements of the Head Master Md. Abdul Mumin who was examined on 14-6-2012.

5. In his report the learned Addl. Sessions Judge, after considering the evidence of the Head Master of Pearacherra TE High School and the Admission Register, came to the conclusion that the date of birth of the appellant Sri Dipak Nama is 13-9-1986 and the date of commission of alleged offence is 10-5-2004. Thus, the appellant was a juvenile when the alleged offence occurred as he had not completed 18 years of age on the date of occurrence of the offence.

6. Mr. Chakraborty, learned counsel appearing for the appellant, in support of the plea of juvenility of the appellant would contend that the appellant although within the meaning of juvenile as contained in Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, Act, 2000) but he was tried by a regular Court which is totally impermissible under law and moreso, appellant has also undergone more than 7 years of imprisonment despite maximum of 3 years in Special Home, could have been passed under sub-clause (g) of sub-section (1) of S.15 of the Act, 2000.

7. He further submits that in view of the provisions of S.7-A of the Act, 2000 read with Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, Rules, 2000) appellant is entitled to take the plea of juvenility of any stage and before any Court if the case is pending. He also stated that when a juvenile is in imprisonment and suffering sentence passed by a regular Court, in that case, the Court has the power to release such juvenile setting aside the order of sentence. In support of his aforesaid contention he has placed reliance on a judgment of the Apex Court in Mohan Mali v. State of M.P. AIR 2010 SC 1790 wherein the Apex Court considered a similar situation and noted, inter alia, “Having regard to the fact that the appellant No.2-Dhanna Lal, was a minor on the date of commission of the offence, and has already undergone more than the maximum sentence provided under S.15 of the 2000 Act, by applying the provisions of Rule 98 of the 2007 Rules read with Ss.15 and 64 of the 2000 Act, we allow the appeal as far as he is concerned and direct that he be released forthwith.”

8. Mr. Sarkar submits that if after inquiry and considering the additional evidence adduced by the Head Master at the time of inquiry done by the learned Addl. Sessions Judge, it is found that the appellant was a juvenile at the time of alleged offence, then he is obviously entitled to get the benefit of the provisions of the Act, 2000.

9. We have gone through the report of the learned Addl. Sessions Judge and the statement of the Head Master who has issued the school leaving certificate and have also perused the copy of the Admission Register of the Pearacherro Tea Estate High School as produced by the Head Master and considered by the learned Addl. Sessions Judge. It appears from the statement of the Head Master and the copy of the Admission Register of the school that the date of birth of the appellant is 13-9-1986. It is also admitted that the date of alleged commission of offence is 10-5-2004.

10. In Hari Ram v. State of Rajasthan ((2009) 13 SCC 211 : (AIR 2011 SC (Cri) 2053)), the Apex Court has considered the various provisions of Act, 2000 as amended in 2006 and in particular S.7-A which was introduced in the parent Act by amending the Act of 2006 and held that “S.7-A would have to be read in tandem with S.20 of the Act, 2000 and Rule 98 of the Juvenile Justice (Care and Protection  of Children) Rules, 2007 which deal with disposed of cases of juveniles in conflict with law and the aforesaid case of Hari Ram (supra) was also considered by the Apex Court in the case of Mohan Mali (AIR 2010 SC 1790) (supra).

11. Mr. Chakraborty has also placed reliance on another decision of the Apex Court in Dharambir v. State (NCT of Delhi), AIR 2010 SC 1801 wherein the Apex Court considered the Ss.2(k), 2(l), 7-A and 20 of the Act, 2000 and taking note of the entire evidence involved in that case sustained the order of conviction and quashed the order of sentence awarded to the appellant of that case and directed to release the appellant forthwith.

12. To decide the issue in question, it would be proper on our part to reproduce the provisions of S.7-A and S.20 of the Act, 2000 as well as Rule 12 of Rules, 2007.

“7A. 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.”

13. Section 7A speaks of the procedure which has to be followed by a Court when a plea of juvenility is raised. Upon going through the provisions of S.7-A of the Act, 2000 it can be said that claim of juvenility can be raised before any Court at any stage even after disposal of the case and our view also gets support from the decision of the Apex Court as relied upon by Mr. Chakraborty. Thus, his contention has some force.

14. Section 20 of the Act, 2000 discusses regarding the special provision in respect of pending cases.

“20. Special provision in respect of pending cases.—Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.—In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Cl. (l) of S. 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]”

15. Rule 12 of the Rules, 2007 speaks how and in what manner the age has to be determined.

“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 cls. (a)(i), (ii), (iii) or in the absence whereof, cl. (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 S. 7-A, S. 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.”

16. On careful consideration of the decisions of the Apex Court in Mohan Mali (AIR 2010 SC 1790) (supra) as well as Dharambir (AIR 2010 SC 1801) (supra) it appears that in those cases mainly the question came up whether the provisions of the Act, 2000 would be applicable relating to a trial for commission of offence prior to coming into operation of the Act, 2000, meaning thereby whether trial started prior to coming into force of the aforesaid Act can be treated as a commission of the trial and also whether a juvenile in conflict with law can be kept in detention for more than the maximum period of detention in Special Home as prescribed in S.15 of the Act, 2000 when he was convicted with other accused by a regular Court.

So far the first question is concerned that has no application in our case, thus it is not necessary to discuss regarding the provisions of S.64 of the Act, 2000.

17. In Reference v. State of Assam, 2011 (4) GLT 235 : (2012 Cri LJ 471), a Division Bench of this Court suo motu took up letter dated 3-7-2011 addressed to the Honble the Chief Justice of this Court by Smti Minna Kabir, a Child Rights Activist and the said letter was registered as PIL 39/2011 wherein after hearing the parties and taking note of various decisions of the Apex Court, noted that, S.7-A makes it obligatory for the Court before which a claim of juvenility is raised to make an inquiry, take such evidence as may be necessary so as to determine the age of such person and record a finding as to whether he/she is a juvenile or a child or not and state his/her age as nearly as may be and that a claim of juvenility can be raised before any Court even after final disposal of the case. The Division Bench also after taking note of the decision of the Apex Court in Amit Das v. State of Bihar (2000) 5 SCC 488 : (AIR 2000 SC 2264) discussed regarding the procedure which has to be followed for determination of age of a person who raised the plea of juvenility and while discussed the method also noted that a duty is cast on the Court to exhaust the methods of determination of age of a person who raised the plea of juvenility and while discussed the method also noted that a duty is cast on the Court to exhaust the methods of determination of age as provided by the Act and the Rules framed thereunder in respect of the claim of Juvenility if raised, which was echoed in Nabam Amas v. State of Arunachal Pradesh, 2010 (1) GLT 622 and ultimately released Ramdeo Chouhan alias Rajnath Chouhan, the applicant in that case on whose behalf Smt. Minna Kabir addressed the letter to the Honble the Chief Justice.

18. In case of Bapi Adhikari v. State of Tripura (2011) 6 GLR 148, this Court has considered a similar situation, and taking note of the case of Lakhan Lal with Pappu Lal alias Manoj Kumar Srivastava v. State of Bihar, AIR 2011 SC 842 noted that, it would be appropriate to sustain the order of conviction of the appellant for the offence punishable under S.302 as well as S.364 of the I.P.C. and release the appellant-Bapi Adhikari by way of modifying the order of sentence passed by the trial Court, as the appellant was in custody for a period of 8 years 9 months and 20 days i.e. more than the prescribed period mentioned in S.15 of the Act, 2000.

19. Upon going through Cl. (g) of sub-section (1) of S.15 of the Act, 2000 it appears that a Board of inquiry can send a juvenile to a special home for a period of three years and sub-rule (13) of Rule 15 of the Rules, 2007 speaks, in any case the period of detention shall not exceed beyond the maximum period provided in Cl. (g) of sub-section (1) of S.15 of the Act, 2000, it can be observed that a juvenile cannot be sentenced for committing an offence either under the Penal Code or any other penal provision of the statute. In this pretext it would be proper on our part of examine the words ‘sentence and ‘detention and what is the difference between these two words. As per Blacks Law Dictionary, 9^th Edition, the word ‘detention means confinement or fact of holding a person in custody and the word ‘sentence means the punishment imposed on a criminal wrong doer. As per the Major Law Lexicon by P. Ramanatha Aiyar, 4^th Edition, the word, ‘detention means the keeping in confinement or custody and the word ‘sentence means a direction by which punishment is prescribed and meted out. In view of the above, it can be said that a juvenile in conflict with law cannot be sentenced ‘either by Juvenile Board or by a Court if the commission of offence is proved rather he can only be sent for detention in a special home for his care and protection, so that he can get a chance for his rectification. But in this case admittedly the Court in absence of plea of juvenility after conviction sentenced him, which requires to be examined by us.

20. It appears from S.15 of the Act, 2000 and sub-rule (13) of Rule 15 of the Rules, 2007 that the law makers prescribed that a juvenile in conflict with law will remain under supervision of probation officer for a period of not exceeding 3 years for commission of an offence in a special home and in the instant case it appears from the record that the appellant was in custody since the date of his conviction, i.e. more than seven years. Thus, we are of the opinion that the appellant is entitled to get the benefit of the provisions of Act, 2000, as amended in 2006, and Rules made thereunder, particularly when in view of the additional evidence as recorded by the learned Addl. Sessions Judge, North Tripura, Dharmanagar, the appellant has proved his plea of juvenility and we have accepted the report.

21. Considering the entire facts and circumstances and the decisions of the Apex Court as well as the decisions of this Court as referred supra, we uphold the order of conviction and quash the sentence awarded to the appellant and direct to release him forthwith, it not wanted in connection with any other case.

In the result, the appeal is allowed. Send down the Lower Court Records.