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2011 DIGILAW 1383 (CAL)

Sk. Ismail v. STATE OF WEST BENGAL

2011-09-30

ASHIM KUMAR ROY, J.N.PATEL

body2011
Judgment : ASHIM KUMAR ROY, J. The present appellant Sk. Ismail and 11 others were placed on trial before the learned Additional District and Sessions Judge, 2nd Court, North 24-Parganas at Barasat to answer charge under Section 120B IPC, 302/120B IPC and under Section 302/34 IPC. During the trial one of the accused Bachhan turned approver while the accused Babu Lal Sharma expired. After conclusion of the trial the Trial Court found the appellant and five others guilty under Section 302/120B IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs. 2,000/- each, in default R.I. for two years. The Trial Court acquitted four others and released the accused Bachhan who turned approver and was tendered pardon. 2. The appellant Sk. Ismail challenged his conviction and sentence as aforesaid by preferring the instant appeal. Whereas the other convicts preferred separate appeals on their behalf. 3. In connection with the aforesaid appeal the appellant moved an application for suspension of sentence under Section 389 of the Code of Criminal Procedure read with Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. When in support of such application, amongst other, it was urged that on the date of the commission of the alleged offence, i.e. on August 13, 2001 on the date of the alleged incident the appellant was below the age of 18 years and a juvenile in conflict with law. The said application being moved, this Court while rejecting the appellant’s prayer for suspension of sentence directed the Trial Court to hold an enquiry under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 for determination of the age of the appellant on the date of the alleged incident. 4. Pursuant to the order passed by this Court whereby the Trial Court was directed to hold an enquiry for determination of the age of the appellant on the date of the commission of the alleged offence, an enquiry in terms of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 was held by the Trial Court and a report is submitted. It appears from the said report that on the date of the alleged incident Sk. It appears from the said report that on the date of the alleged incident Sk. Ismail was a juvenile in conflict with law on August 13, 2001, i.e. on the date of the alleged occurrence as it was found his age was 14 years 4 months and 6 days. 5. Now, the only issue arises in this criminal appeal for decision as to whether the accused who was found 14 years 4 months and 6 days on the date of the alleged incident, on an enquiry held under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 by the Trial Court, his regular trial with the adult accused persons has been vitiated and his conviction and sentence is wholly illegal and without jurisdiction? 6. The Juvenile Justice (Care and Protection of Children) Act, 2000 came into force with effect from April 1, 2001. The Section 2(k) of the said Act define “juvenile” or “child” and Section 2 (l) define “juvenile in conflict with law”, which are quoted below; S.2. Definitions. (a) ……… (b) ……… (c) ……… (d) ……… (e) ……… (f) ……… (g) ……… (h) ……… (i) ………. (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; (m) ……… (n) ……… (o) ……… (p) ……… (q) ……… (r) ……… (s) ……… (t) ……… (u) ……… (v) ……… (w) ……… (x) ……… (y) ……… 7. Therefore, according to the aforesaid provisions, a juvenile who is alleged to have committed an offence is a “juvenile in conflict with law” and a “juvenile” means who is a person who has not completed eighteenth years of age. After the decision of Constitution Bench of the Hon’ble Supreme Court in the case of Pratap Singh Vs. State of Jharkhand, reported in 2005 SCC (Cri) 742, there is no further controversy that the relevant date for applicability of the Juvenile Justice (Care and Protection of Children) Act, 2000 so far as the age of the accused who claimed to be a juvenile/child, is concerned, is the date of occurrence and not the date of trial. 8. State of Jharkhand, reported in 2005 SCC (Cri) 742, there is no further controversy that the relevant date for applicability of the Juvenile Justice (Care and Protection of Children) Act, 2000 so far as the age of the accused who claimed to be a juvenile/child, is concerned, is the date of occurrence and not the date of trial. 8. A few provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 are amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 with effect from August 22, 2006. The provisions which are so amended and relevant for just decision of the case are as follows; After amendment of Section 2 (l) of the Principal Act which define “juvenile in conflict with law” now stands as follows; S. 2(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; Similarly, Section 16 of the Principal Act has also been amended and result of such amendment is as follows; Section 16 of the Principal Act. 16. Order that may not be passed against juvenile. – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security: Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. (2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit: Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed. Amendment of Section 16. – In section 16 of the Principal Act,- (i) in sub-section (1), for the words “or life imprisonment”, the words “or imprisonment for any term which may extend to imprisonment for life” shall be substituted; (ii) in sub-section (2), for the proviso, the following proviso shall be substituted, namely:- “Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of this Act”. Similarly the Section 20 of the Principal Act has also been amended by inserting a proviso and explanation. Section 20 of the Principal Act. 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. Amendment of Section 20. – In section 20 of the principal Act, the following proviso and Explanation shall be inserted, namely:- “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. Amendment of Section 20. – In section 20 of the principal Act, the following proviso and Explanation shall be inserted, namely:- “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 clause (1) of Section 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.”. 9. In the case at hand, the date of alleged occurrence was August 13, 2001 and according to the finding of the Trial court on that day the appellant was aged 14 years 4 months and 6 days, therefore on that day the appellant was a ‘juvenile in conflict with law’ below the age of 18 years. In view of above, indisputably the appellant was a ‘juvenile in conflict with law’ on the date of the alleged occurrence and as such he being tried along with the persons who are not juvenile and are adult, so far as the trial of the appellant is concerned, the same is vitiated. Furthermore, in terms of the amended provisions of Section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 no juvenile in conflict with law can be sentenced to imprisonment for any term. In the result the appeal stands allowed and the sentence imposed against the appellant is quashed and set aside. In the light of disposal of the appeal, the application being CRAN No. 758 of 2011 also stands disposed of. This Court has been informed that the appellant was detained in jail for about 10 years which is more than the maximum period for which a ‘juvenile in conflict with law’ may be confined to a Special Home, accordingly, it is directed if the appellant is still in jail and not wanted with any other case, he shall be released from jail forthwith. The office is directed to communicate this order to the Trial Court and send down the records at once. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.