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2012 DIGILAW 323 (ORI)

Subash Sahu v. State of Orissa

2012-07-31

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT B.K. Misra, J 1. Challenging the judgment of conviction and sentence dated 5.5.2003 rendered by the learned Additional Sessions Judge, Angul in S.T. No.109/34 of 2002, the appellant has filed this appeal. 2. We have heard Mr. Gourang Ch. Mohapatra, learned counsel for the appellant as well as learned Additional Standing Counsel for the State, Mr. Mohapatra while challenging the impugned judgment of conviction and sentence contended that the learned Additional Sessions Judge did not consider the question of juvenility which was raised before him as a result of which there has been gross miscarriage of justice and the present appellant, who was a juvenile at the time of the commission of the alleged crime, has been prejudiced and has suffered incarceration for a decade, Our attention was drawn to the findings of the learned Additional Sessions Judge in Para 9 of the impugned judgment wherein the Trial Court held the appellant a major at the time of commission of the alleged crime by disbelieving the date of birth mentioned in the School Leaving Certificate. 3. From the impugned judgment we find that the School Leaving Certificate was produced before the learned Additional Sessions Judge which revealed that the present appellant was born on 7.6.1985 and therefore he was a minor at the time of alleged commission of offence on 8.2.2002. Learned Additional Sessions Judge disbelieved the entry with regard to the date of birth of the 'appellant recorded in the School Leaving Certificate. 4. Learned Additional Standing Counsel appearing for the State contended that in the charge sheet the year of birth of the appellant has been reflected as 1983 by the Investigating Officer and the appellant did not raise the question of juvenility when he was first produced before the learned S.D.J.M. Angul or at any stage till argument in the case was heard and no evidence has also been led to substantiate the fact that the entries made in the School Leaving Certificate were correct and genuine and therefore the learned Additional Sessions Judge has correctly disbelieved the plea of the juvenility raised by the appellant before it. 5. We may mention here that the present appellant faced trial in the Court below for having committed murder of the deceased Suratha Pradhan with an axe when the deceased alongwith Binod Sahu and Balakrishna Pradhan had gone to guard the forest. 5. We may mention here that the present appellant faced trial in the Court below for having committed murder of the deceased Suratha Pradhan with an axe when the deceased alongwith Binod Sahu and Balakrishna Pradhan had gone to guard the forest. On the basis of the FIR lodged by P.W. 4 Subash Ch. Pradhan at Jarapada Police Station investigation was taken up and on its completion charge sheet was placed against the present appellant to stand his trial. 6. The plea of the appellant was that of a complete denial of the alleged occurrence. 7. To establish its case the prosecution had examined 15 witnesses in all whereas the appellant did not examine any witness in his defence. 8. After considering the entire evidence on record the learned Additional Sessions Judge believed the case of the prosecution and in view of the evidence on record held the appellant guilty of the offence under Section 302 of the Indian Penal Code (for short, the 'IPC') and sentenced him to undergo imprisonment for life. 9. Since much stress has been laid on the question of juvenility we deem it fit and proper to deal with that matter first. The position of law is very clear and there can be no doubt about the fact that the claim of juvenility can be raised before any Court and it shall be recognized at any stage even after final disposal of the case and such claim shall be determined in terms of the provisions contained in Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as the Juvenile Justice Act, 2000) and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. This provision has been inserted by way of an amendment incorporated to the Juvenile Justice Act, 2000 by adding Section 7-A to the Act. 10. In the instant case, the plea of juvenility was raised before the Trial Court by producing the School Leaving Certificate to Show that the appellant was a juvenile when the alleged offence was committed as he was born on 7.6.1985 and there is no controversy about that. 11. Section 20 of the Juvenile Justice Act, 2000 provides for the procedure to be followed in respect of pending cases which reads as follows: "20. 11. Section 20 of the Juvenile Justice Act, 2000 provides for the procedure to be followed in respect of pending cases which reads as follows: "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 Clause (I) 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." 12. A conjoint reading of Sections 2(1), 7-A, 20 and 49 of the Juvenile Justice Act, 2000 read with Rules 12 and 98 makes the position of law very clear and establishes beyond all doubts that all persons who were below the age of 18 years on the date of commission of the offence even prior to commencement of the Juvenile Justice Act, 2000 on 1.4.2001, would be treated as juveniles even if the claim of juvenility would be raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. 13. 13. Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007 (hereinafter referred to as the Juvenile Justice Rules, 2007) reads as under: "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 or 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 appearance 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. 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 clauses (a)(i), (ii), (iii) or in the absence whereof, clause (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 Section 7A, Section 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." 14. In Hari Ram v. State of Rajasthan and another as reported in (2009) 13 SCC 211 , their Lordships of the Apex Court have dealt with the question of determination of the juvenility which clinches the issue in this appeal. In Hari Ram v. State of Rajasthan and another as reported in (2009) 13 SCC 211 , their Lordships of the Apex Court have dealt with the question of determination of the juvenility which clinches the issue in this appeal. According to their Lordships, the effect of the proviso to Section 7-A introduced by the amending act reinforced the intention of the legislature by introducing the proviso to Section 20 of the Juvenile Justice Act, 2000 wherein the question of determination of juvenility has to be made in terms of Section 2 (I) of the said Juvenile Justice Act. 15. Apart from the aforesaid provisions of the Juvenile Justice Act, 2000 as amended and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order- under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act i.e. 3 years. 16. Section 49 of the Juvenile Justice Act, 2000 lays down that:- "49. Presumption and determination of age – (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as •may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person." 17. Sub-section (1) of Section 49 empowers the competent authority to make due inquiry as to the age of a person brought before it and for the said purpose to take such evidence as may be necessary and shall record a finding as to whether the person is a juvenile or a child or not, stating his age as nearly as may be. 18. The provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007 aim at providing an opportunity to the children, who have, for some reasons or the other, gone astray, to realize their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society instead of degenerating into hardened criminals. 19. In the instant case, we have no hesitation to hold that the learned Addl. Sessions Judge did not consider the plea of juvenility raised before it in the light of the special enactment i.e. the Juvenile Justice Act, 2000 as amended in the year 2006 and the Rules framed thereunder in the year 2007 and placing reliance on a decision of the Apex Court as reported in AIR 1965 SC 282 in the case of Brij Mohan Lal v. Priya Brat Narain Sinha and others and a decision of this Court as reported in 1991 ILR 469 in the case of Manoranjan Prusty v. State arrived at a wrong conclusion. We may mention here that the Juvenile Justice Act, 2000 came into force with effect from 1st April, 2001 and the ratio propounded in Brij Mohan Lal's case as well as Manoranjan Prusty's case (supra) are on a different context but not in the context of determination of the plea of the juvenility. We may mention here that the Juvenile Justice Act, 2000 came into force with effect from 1st April, 2001 and the ratio propounded in Brij Mohan Lal's case as well as Manoranjan Prusty's case (supra) are on a different context but not in the context of determination of the plea of the juvenility. With regard to the date of birth recorded in the School Leaving Certificate as valid proof for determining the age of an accused person, we may profitably refer to the decision of the Apex Court as reported in (2011) 50 OCR SC 207 in the case of Shah Nawaz v. State of U.P. and another. 20. In the light of the above discussion, without delving into the detailed discussion of the evidence with regard to the complicity of the appellant in the alleged crime, we upset the findings of the learned Addl. Sessions Judge in respect to the plea of the juvenility. The learned Addl. Sessions Judge should have adopted the procedure in determining the age of the accused appellant as per Rule 12 of the Juvenile Justice Rules, 2007. Accordingly, we allow the appeal and set aside the order of conviction and sentence passed by the learned Addl. Sessions Judge, Angul in S.T. No.109/34 of 2002. The matter is remitted back to the Juvenile Justice Board, Angul for disposal in accordance with law within three months from the date of receipt of a copy of this order having regard to the fact that the offence was committed more than 10 years ago. I agree. Appeal allowed.