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1994 DIGILAW 165 (MAD)

Bharathanatyam Alias Disco Alias Nagarajan v. State

1994-02-07

T.S.ARUNACHALAM

body1994
Judgment :- These petitions coming on for hearing upon perusing the petitions and upon hearing the arguments of Mr. A. Sivaji, Advocate for the petitioner in both the petitions and of Mr. S. Shanmughavelayudham, Addl. Public Prosecutor on behalf of the State in both the petitions; the Court made the following order :- Both these original petitions are disposed of together by a common order, since the petitioner and the respondent are the same and the ground urged is identical. 2. Petitioner Bharathanatyam alias Disco alias Nagarajan, is the sole accused in CC. No. 2548 of 1989 and CC. No. 2547 of 1989, both pending on the file of Judicial Magistrate No. I, Madurai. Petitioner is alleged to have committed theft. (Snatching of gold chains from the necks of 1 1/2 and 3 1/2 years old children). Petitioner preferred Criminal M.P. Nos. 6483 of 1990 and 6484 of 1990 before the trial Magistrate to hold him as a juvenile, since his date of birth was 25-4-1974 and he had completed only 15 years and 2 months and 28 days at or about the time when the alleged offences were committed. He further pleaded, that in view of the decision of the Supreme Court in Sheela Barse v. Union of India (1986 Mad LW Cri 440) : (1986 Cri LJ 1736), since the final report had not been laid within six months, the pending prosecution should not be permitted to survive any longer. The plea made by the petitioner was negatived by the trial Magistrate, which led to the petitioner preferring Crl.R.P. No. 8 of 1991 and Crl. R.P. No. 7 of 1991 respectively before the Principal Sessions Judge, Madurai, challenging the sustainability of the orders passed by Judicial Magistrate No. I, Madurai. The order passed by the revisional court is rather cryptic, which reads as follows : "Trial Court order perused. I find no irregularity or illegality in the order passed by the trial Court. Revision petition is dismissed." Petitioner, still aggrieved, had thought it fit to invoke the inherent powers of this Court to have the injustice caused to him remedied. 3. Mr. A. Sivaji, learned counsel appearing on behalf of the petitioner in each one of these cases, submitted that under sub-section 2(h) of Juvenile Justice Act, a juvenile meant a boy who had not attained the age of 16 years. 3. Mr. A. Sivaji, learned counsel appearing on behalf of the petitioner in each one of these cases, submitted that under sub-section 2(h) of Juvenile Justice Act, a juvenile meant a boy who had not attained the age of 16 years. Admittedly, petitioner had not attained 16 years for, even according to the learned Magistrate, petitioner was aged only 15 years 2 months and 28 days. Petitioner, therefore, ought to have been treated as a juvenile offender. He then contended that in view of the law laid down in Sheela Barse's case (1986 Mad LW (Cri) 440) : (1986 Cri LJ 1736), referred to earlier, if a final report had not been laid within three months against the juvenile after completion of investigation and further if the trial did not stand disposed of within a period of six months thereafter, prosecution against the juvenile will have to be necessarily quashed. 4. On these two grounds, I have heard Mr. S. Shanmughavelayudham, learned Addl. Public Prosecutor. He submitted that the petitioner, on completion of 15 years, must be deemed to have attained the age of 16 years and therefore there was nothing wrong in the orders passed by the trial Magistrate and the revisional Court. However, in fairness, he rendered assistance to this Court, by placing the Law Lexicon as well as decision of Chancery Division, to indicate the meaning, that could be placed on the word "attain". 5. I have with concern considered the rival contentions placed for my scrutiny. From a common sense point of view, a new born child is stated to be one year old on completion of the first 365 days. A new born child, on the date of its birth, is not stated to have attained the age of one year. There appears to be a logical difference between the words "attain" and "complete". From a common sense point of view, a new born child is stated to be one year old on completion of the first 365 days. A new born child, on the date of its birth, is not stated to have attained the age of one year. There appears to be a logical difference between the words "attain" and "complete". In Black's Law Dictionary, Fifth Edition, at page 116, the word "attain" has been defined as follows : "To reach or come to by progression or motion, to arrive at, as to attain a ripe old age." Venkataramaiya's Law Lexicon, Second Edition, at page 249, Volume II, under the heading "attain the age of" states as hereunder : "A person attains the age of twenty-one years, or of twenty-five years, or any specified age, on the day preceding the anniversary of his twenty-first or twenty-fifth birthday or other birthday, as the case may be." This Law Lexicon refers to the decision of the Chancery Division in, In re : Shurey, Savory v. Shurey ((1918) 1 Ch 263). It was declared therein that Captain Charles Shurey attained the age of 25 years on the date preceding the twenty-fifth anniversary of the day of his birth. 6. In N. C. Dalwadi v. State of Gujarat ( AIR 1987 SC 1933 ) while considering certain provisions under Bombay Civil Service Rules vis-a-vis compulsory retirement, Supreme Court stated that the word "attain" meant acquired or reached. I have no hesitation in holding that the word "attain" should be interpreted to mean, on the instant facts, as the arrival of 16 years and not completion of 16 years. Therefore, the petitioner is bound to be treated as a juvenile. Under Section 3 of the Act, where in inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in the Act or any other law for the time being in force, inquiry has to be continued and orders made in respect of such person as if such person has continued to be a juvenile. In indication (sic) is obvious that the reckoning of the age of the accused must be in relation to the date of commission of the crime and not the date on which the trial Court disposed of the case against the juvenile. In indication (sic) is obvious that the reckoning of the age of the accused must be in relation to the date of commission of the crime and not the date on which the trial Court disposed of the case against the juvenile. A Division Bench of this Court, to which I happened to be a party, in Criminal Appeal No. 427 of 1986 (Rajan alias Thiruvengada Karthigeyan v. State) by its judgment dt. 13th August, 1992, held as follows : "After the coming into force of the Juvenile Justice Act, the date of commission of the offence is the criterion and not the date conviction and the age prescribed is 16 years and below." In the impugned cases, occurrence are alleged to have taken place on 22-8-1989 and 23-9-1989. Age of the juvenile will have to be reckoned on those two "offence committed dates". 7. The next ground relates to the need to compulsorily quash the pending prosecutions in view of the law laid down by the Supreme Court in Sheela Barse's case (1986 Mad LW (Cri) 440) : (1986 Cri LJ 1736). That was a case where the Supreme Court was considering detention of children accused of offences who were lodged in prison for a very long period. Supreme Court was also concerned with mentally retarded children as well abandoned or destitute children who were lodged in various Jails in the country. Supreme Court observed that a child was a national asset and it was the duty of the State to look after the child with a view to ensure its full development of its personality. It further observed that incarceration in jail undoubtedly would have effect of dwarfing the development of the child exposing him to baneful influences, coarsening his conscience and alienating him from the society. Under those circumstances, Supreme Court chose to observe as hereunder (at p. 1742) : "So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, we would regard a period of 3 months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge-sheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would be liable to be quashed. We would direct every State Government to give effect to this principle or norm laid down by us in so far as any further cases as concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of charge-sheet and if charge-sheet has been filed the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed." The observations of the Supreme Court certainly portray its anxiety and anguish as to the manner in which he juveniles concerned therein were treated and not wanting such treatment to be repeated, the Supreme Court chose to make certain observations. There can be no doubt that those salutary observations should have to be observed by the investigating agencies and Courts of first instances, who deal cases of juveniles. The period of completion of trial suggested by the Supreme Court as six months from the date of filing of the final report cannot be taken as a rigid formula, but must be taken to signify a reasonable time within which cases against juveniles will not only have to be charge-sheeted, but also disposed of. The object behind the prescription made by the Supreme Court is not to allow the child to rot endlessly, being aware of a pending prosecution. In these cases, there is no dispute, that the juvenile was released on bail. While construing the salutary time limit fixed by the Supreme Court, this Court cannot totally overlook the natue of offence allegedly committed by the juvenile, as well the possible reasonableness or otherwise of the time taken for the conduct of investigation and the completion of trial coupled with the fact of the juvenile being inside or outside jail. In the instant cases, final reports were laid on 5-9-1989 and cognizance was taken on 11-9-1989. Petitioner has approached this Court in July, 1991 and thereafter, the trial stood stayed. In between, applications preferred by the petitioner before the trial Magistrate were disposed of on 7-1-1991 and the revisional Court on 22-2-1991. In the instant cases, final reports were laid on 5-9-1989 and cognizance was taken on 11-9-1989. Petitioner has approached this Court in July, 1991 and thereafter, the trial stood stayed. In between, applications preferred by the petitioner before the trial Magistrate were disposed of on 7-1-1991 and the revisional Court on 22-2-1991. It is not possible to hold on these facts that there has been either lethargy or recklessness in the conduct of these trials. As stated earlier, petitioner had allegedly snatched gold chains from the necks of minor children. In my view, he has to face these trials. It is not as though no witnesses were examined, for P.W. 1 was put into the witness-box on 30-4-1990. Thereafter, petitioner chose to prefer an application which had travelled from one Court to another before ending up on the file of this Court. Learned Sessions Judge, Madurai, is directed to place these two calendar cases forthwith before the Juvenile Court concerned for disposal in accordance with law, within two months from the date of receipt of a copy of this order by the concerned Juvenile Court. Learned Sessions Judge, Madurai, shall forward a copy of this order to the concerned Juvenile Court within one week of receipt of the same by him. 8. Subject to the observations made above, these petitions shall stand dismissed. Petition dismissed.