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2014 DIGILAW 118 (JK)

Sameer Nazir v. State Through SHO P/S Khirbhawani

2014-03-18

ALI MOHAMMAD MAGREY

body2014
1. This is an application under Section 13 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 filed on behalf of the convict, Sameer Nazir alias Ashiq Hussain son of Nazir Ahmad Ahangar resident of Khurhama, Ganderbal, presently lodged in Central Jail, Srinagar, seeking bail. 2. The applicant/convict was charged for the commission of the offence punishable under sections 376 RPC in a case arising from FIR no. 54 of 2004 registered at Police Station, Khirbhawani, Ganderbal. The learned Principal Sessions Judge, Ganderbal, vide judgment dated 14.05.2013 found the convict guilty of the offence and, accordingly, convicted him. Vide order dated 03.06.2013, the learned trial court has sentenced the convict to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 50,000. The aforesaid conviction and sentence recorded by the learned trial court has been challenged in Criminal Appeal no. 13/2013. 3. Record of the appeal reveals that alongwith the appeal, an application, being IA(Cr.) no. 208/2013, was filed on behalf of the convict praying for suspension of the substantive sentence. Looking at the gravity of the offence for which the applicant had been convicted and its larger impact on the society, the said application has been dismissed by Court order dated 09.07.2013. 4. It may be mentioned here that during the course of trial, the convict has remained in jail for 207 days with effect from 24.09.2004 to 19.04.2005 and from the date the sentence was awarded on 03.06.2013, the convict continues to be in jail serving the sentence. Till now he has been in jail for almost 286 days. Thus, the convict has served a total jail term of 493 days pre and post conviction. 5. This application has been made on the ground that as on the date of commission of the offence the convict was a juvenile having been under the age of 18 years and, therefore, he is entitled to the protection under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter, for short, referred to as the Act). It is stated that the petitioner's date of birth is 15.03.1988 and, as per the prosecution, the alleged occurrence is stated to have taken place on 23.09.2004. It is stated that the petitioner's date of birth is 15.03.1988 and, as per the prosecution, the alleged occurrence is stated to have taken place on 23.09.2004. Therefore, as on the date of commission of the offence, the convict was of the age of 16 years plus and, in any case, below the age of 18 years and, as such, a `Juvenile' within the meaning of Section 3(m) and a `Juvenile in conflict with law' within the meaning of Section 3(n) of the Act. It is submitted that the Act received the assent of the Governor on 24.04.2013 and was published in the Government Gazette dated 25.04.2013; whereas the judgment convicting the convict was pronounced on 14.05.2013 and the order of sentence was passed on 24.05.2013 and on both these dates the Act had already come into operation. In that view, it is submitted that the learned trial court was under a legal obligation not to sentence him. 6. Notice of this application was issued to the respondent in terms of order dated 15.01.2014. In response, it is stated in the objections that the convict has committed a heinous crime and equity and justice demand that bail in such a heinous and serious type of offence may not be granted. It is further stated that the convict is not entitled to any concession of bail as he has prima facie committed the offence of rape for which he has been awarded rigorous imprisonment of 10 years and fine of Rs. 50,000.00. As such the bail application deserves to be dismissed. 7. I have heard learned counsel for the applicant-convict, perused the material on record and matter. 8. The plea of juvenility of the convict has been taken for the first time in this application. The applicant has placed on record of this application an order dated 16.11.2004 passed by the trial court on the bail motion moved on behalf of the convict. Perusal of the order reveals that date of birth certificate of the accused had been procured from Government High School Khirhama, according to which, as recorded in the order, the date of birth of the convict was 15.3.1988. The trial court, in its aforesaid order, has recorded, "according to the said certificate his date of birth is 15.3.1988, so above 16 years old". The trial court, in its aforesaid order, has recorded, "according to the said certificate his date of birth is 15.3.1988, so above 16 years old". In support of plea of juvenility of the convict, the applicant has placed on record a photocopy of the Secondary School Examination Certificate issued by the Jammu and Kashmir State Board of School Education bearing the name, parentage, Roll no. and date of birth of the convict. It records his date of birth as 15.03.1988. There is also a photocopy of a handwritten certificate issued by the Headmaster, Boys High School Kurhama, Ganderbal under No. BHSK/88 dated 27.09.2004. It reads as under: "Certified that the date of birth of Sumeer Nazir S/o Nazir Ahmad Ahangar R/o Baransa (sic) Ganderbal who was reading in the school under Ad. No. 1113/952 upto 21/9/2004 is (15-03-1988) Fifteenth of March N. H. & eighty eight as per Admission Record." The respondents in their objections filed in response to the present application have not disputed the aforesaid date of birth or the documents placed on record. Prima facie, therefore, it is established that as on the date of commission of the offence, viz., on 23.09.2004, the applicant was less than 18 years of age. 9. Section 8 of the Act provides for the procedure to be followed when claim of juvenility is raised before any Court. It reads as under: "8. 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 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 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 recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect." It is axiomatic from the aforesaid provision of the Act that the claim of juvenility can be raised at any stage, even after final disposal of the case. Once the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of Section 8 of the Act, the Court has to forward the juvenile to the Juvenile Justice Board for passing appropriate orders and the sentence, if any passed, by a court shall be deemed to have no effect. 10. The powers of the Juvenile Justice Board are enumerated in Section 6 of the Act. It provides that where a Board has been constituted, such Board shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in the Act, have power to deal exclusively with all proceedings under the Act relating to juvenile in conflict with law. Sub-Section (2) of Section 6 provides that the powers conferred on the Board by or under the Act may also be exercised by the High Court and the Court of Sessions, Srinagar or Jammu, as the case may be, when the proceeding comes before them in appeal, revision or otherwise. Thus, the powers conferred on the Board are also exercisable by this Court. In other words, the claim of juvenility can be taken in appeal before this Court. 11. Now, Section 13 of the Act contains the provision for bail of juvenile. It reads as under: "13. Bail of juvenile. Thus, the powers conferred on the Board are also exercisable by this Court. In other words, the claim of juvenility can be taken in appeal before this Court. 11. Now, Section 13 of the Act contains the provision for bail of juvenile. It reads as under: "13. Bail of juvenile. - (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board. (3) When such person is not released on bail under sub section (1) by the Board, it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order." It may also be relevant to extract hereunder Section 16 of the Act which enumerates the orders that may be passed regarding a juvenile. 16. Order that may be passed regarding juvenile. 16. Order that may be passed regarding juvenile. - (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit.- (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counselling and similar activities; (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years; (g) make an order directing the juvenile to be sent to a special home for a period of three years; Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. (2) ....... (3)........ (4)......." A conjoint reading of the aforesaid provisions of the Act make it manifest that in respect of a juvenile, it is the Juvenile Justice Board constituted under Section 4 of the Act which has the exclusive power to deal with all proceedings under the Act relating to a juvenile in conflict with law. (2) ....... (3)........ (4)......." A conjoint reading of the aforesaid provisions of the Act make it manifest that in respect of a juvenile, it is the Juvenile Justice Board constituted under Section 4 of the Act which has the exclusive power to deal with all proceedings under the Act relating to a juvenile in conflict with law. A "juvenile in conflict with law", as defined in Section 2(n) is 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 and a "juvenile" in terms of Section 2(m) means a person who has not completed eighteenth year of age. Where the Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, it (the Board) can pass any of the orders enumerated under Section 16 of the Act, as quoted hereinabove. Section 13 also confers power on the Board to release a person, apparently a juvenile, on bail with or without surety, notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989, when such person is arrested or detained or appears or is brought before a Board. In terms of Section 6(2) of the Act, the powers conferred on the Juvenile Justice Board are also exercisable by this Court in appeal, revision or otherwise. Since in the instant case, the claim of juvenility has been raised at the appellate stage, in terms of Section 8 of the Act, an inquiry is required to be made to determine the age of the applicant as on the date of the commission of the offence. Learned counsel for the applicant, relying on the judgment of the Supreme Court in Abuzar Hussain v. State of W.B., (2012) 10 SCC 489 , submitted that the date of birth entered in the certificate issued by the Jammu and Kashmir State Board of School Education is a valid proof regarding the date of birth of the applicant-convict and, therefore, no enquiry is needed to be held. In the aforesaid judgment, the Supreme Court has quoted paragraphs 23 and 24 of its judgment in Shah Nawaz v. State of U.P., (2011) 13 SCC 751 , wherein the Apex Court had recorded its satisfaction that the entry relating to date of birth entered in the marksheet is one of the valid proofs of evidence for determination of age of an accrued person. However, it is further revealed from the portion of the judgment quoted in the aforesaid cited case that the certificate had been proved by the statement of the Clerk of the concerned School and corroborated by other documents. Furthermore, the certificate and/or the documents produced in this application in proof of the date of birth of the applicant-convict are neither the original documents, nor attested by any person, muchless an authorized person. These certificates, therefore, cannot be taken as conclusively establishing the date of birth of the applicant-convict. These documents read together with the observation of the learned trial court in its order dated 16.11.2004 passed in the bail application of the convict that was initially filed before that court, referred to in paragraph 8 above, however, are sufficient to frame a prima facie opinion about the age of the applicant-convict at the time of commission of the offence, which apparently seems to have been less than 18 years. 13. In the aforesaid circumstances and to meet the ends of justice, it is provided as under: i) That the Registrar Judicial, High Court, Srinagar, shall hold an enquiry and take such evidence as may be necessary (but not an affidavit), to determine the age of the applicant-convict, Sameer Nazir alias Ashiq Hussain son of Nazir Ahmad Ahangar resident of Khurhama, Ganderbal, as nearly as may be, on the date of the alleged commission of the offence, viz., 23.09.2004. The Registrar Judicial shall complete such enquiry within a period of 15 days from today; ii) The main appeal together with the present application shall be listed for arguments and consideration before this Court in the week commencing from 01.04.2014; iii) Pending such enquiry by the Registrar Judicial, as aforesaid, the applicant-convict is admitted to interim bail and he shall be released from Central Jail, Srinagar, on furnishing a surety bond by one of his parents in the amount of Rs. 20,000/- to the satisfaction of the Registrar Judicial of this Court; iv) The applicant-convict shall remain personally present before the Court on the next date when the main appeal alongwith the present application is listed for final arguments and consideration. 14. Put up, as ordered above.