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2014 DIGILAW 300 (JHR)

Satish Kumar v. State of Jharkhand

2014-02-25

D.N.PATEL, P.P.BHATT

body2014
Judgment D.N. Patel, J. 1. This writ petition has been preferred against following judgment and orders :- (I) Judgment dated 17/22thJune, 2005 (Annexure 1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 172 of 1989 and 172-A of 1989, (II) Judgment dated 12th July, 2005 passed by the Additional Chief Judicial Magistrate, Latehar in S.T. Case No.172 of 1989/Juvenile tr. No. 97 of 2005 (Annexure 2 to the memo of the petition) and (III) Memo No. 264 dated 7th February, 2006 issued under the seal and signature of the Under Secretary to the Govt. of Jharkhand, Department of Home (Annexure to supplementary affidavit filed by the petitioners). 2. These petitioners, who were admittedly aged 16 at the time of commission of the offence, were tried jointly with major persons and were convicted vide judgment of conviction dated 17/22ndJune, 2005, mainly for the offence punishable under section 302/34, 148, 307/34 I.P.C. and for quantum of punishment, matter was referred to learned Juvenile Justice Board-cum-Addl. Chief Judicial Magistrate, Latehar under Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000. This judgment is at Annexure 1 to the memo of this writ petition, which is under challenge mainly on the ground that – (a) There is total lack of jurisdiction on the part of the Addl. Sessions Judge, Fast Track Court, Latehar in conducting sessions trial of these writ petitioners, who were admittedly juvenile as on the date of occurrence, jointly with the major persons. At the date of commission of offence all the petitioners were admittedly below the age of 16 years and they were juveniles even as per the provisions of earlier Act, namely Juvenile Justice Act, 1986 and therefore, the Additional Sessions Judge, Fast Track Court, Latehar cannot conduct the trial of these juvenile delinquents jointly with the major persons as per section 24 of the Juvenile Justice Act, 1986. (b) As per Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, no joint proceeding of juvenile and a person who is not a juvenile can be conducted by the trial court. (b) As per Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, no joint proceeding of juvenile and a person who is not a juvenile can be conducted by the trial court. Section 20 of the Act of 2000 is applicable to those accused persons, who were in the age group of more than 16 years, but less than 18 years because of amendment in Section 2 (l) of the Act, 2000, which was brought into force to nullify the effect of the ratio discendi of a judgment passed by the Hon'ble Supreme Court in the case of Pratap Singh vs. State of Jharkhand & Another reported in (2005)3 SCC 551 . (c) In the decision rendered by the Hon'ble Supreme Court in the case of Hari Ram vs. State of Rajasthan & Another reported in (2009) 13 SCC 211 , which is a judgment delivered after the amendment in Section 2 (l) of the Act of 2000 was brought into force on 22nd August, 2006, Hon'ble Supreme Court held that since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force. (d) These writ petitioners can not be relegated to Learned Juvenile Court-cum-Additional Chief Judicial Magistrate, Latehar for quantification of the punishment because joint sessions trial can not be conducted by the Additional Sessions Judge, Fast Track Court, Latehar because it is beyond his power, jurisdiction and authority. (e) Moreover, Major persons, who were convicted jointly have preferred criminal appeal, being Criminal Appeal (D.B) No. 718 of 2005 against the judgment and order of conviction and sentence passed by Additional Sessions Judge, Fast Track Court, Latehar has been quashed and set aside by the judgment and order dated 13th May, 2009 by a Division Bench of this court (annexure 4 to the supplementary affidavit dated 12th July, 2013 filed by the petitioners). (f) Counsel for the petitioner has also relied upon a decision rendered by the Hon'ble Supreme Court in the case of Babban Rai & Anr. v. State of Bihar reported in 2008 Cri. L. J 1038 and this judgment was also of a joint trial. (f) Counsel for the petitioner has also relied upon a decision rendered by the Hon'ble Supreme Court in the case of Babban Rai & Anr. v. State of Bihar reported in 2008 Cri. L. J 1038 and this judgment was also of a joint trial. Though conducted with non-juvenile persons, juvenile accused were convicted and their conviction in this case was upheld but sentence was set aside because the juvenile accused at the time judgment was delivered was major, i.e. approximately 35 years of age. On the aforesaid ground the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Fast Track Court, Latehar is being challenged and it is also submitted by counsel for the petitioners that by now these petitioners have attained the age of more than 35 years. 3. We have heard counsel for the respondent State who submitted that there is no illegality committed by the Additional Sessions Judge, Fast Track Court, Latehar in convicting these appellants especially in view of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and for quantum of punishment they have been rightly referred to the Juvenile Justice Board, Latehar. It is further submitted by the State that as per Section 20 of the Act of 2000, even after the juveniles and persons who are other than juvenile are tried together, for quantum of punishment matter can be referred to the Juvenile Justice Board. It is further submitted by the counsel for the State that the allegation levelled against these writ petitioners are of murder as well as for injuring the life of a person and therefore, these petitioners have been convicted for the offences punishable under sections 302/34, 148, 307/34 I.P.C. and therefore, this court may not entertain this writ petition. 4. Having heard counsel for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the Judgment dated 17/22th June, 2005 (Annexure 1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 172 of 1989 and 172-A of 1989 so far as these petitioners are concerned and consequently judgment dated 12th July, 2005, passed by the Additional Chief Judicial Magistrate, Latehar in S.T. Case No.172 of 1989/Juvenile tr. No. 97 of 2005 (Annexure 2 to the memo of the writ petition) and Memo No. 264 dated 7th February, 2006 issued under the seal and signature of the Under Secretary to the Govt. of Jharkhand, Department of Home (Annexure 3 to the supplementary affidavit filed by the petitioners) mainly for the following facts and reasons: (I) It appears that the allegations against these petitioners are regarding offence of murder and for injuring the life of another person in furtherance of the common intension with the persons other than juvenile and also allegation of rioting, armed with deadly weapons. Date of occurrence as per prosecution is 23rd May, 1988. Admittedly, all the petitioners were below the age of 16 years on the date of offence, i.e. on 23rd May, 1988, as per enquiry report dated 31st January, 2005 submitted by the Juvenile Court-cum-A.C.J.M. Latehar. The aforesaid report given by the Juvenile Court-cum-Additional Chief Judicial Magistrate, Latehar has been accepted by the Additional Sessions Judge, Fast Track Court, Latehar in the judgment itself. Thus, it is undisputed that all the three petitioners were below the age of 16 years and this fact was established before the Additional Sessions Judge, Fast Track Court, Latehar. (II) Thus, the question that arises in this writ petition is that whether trial of juvenile in conflict with law can be conducted together with those who are other than juvenile. To decide this issue, there is a need to refer to Section 24 of the Juvenile Justice Act, 1986 because as on date of offence this Act was in force. Section 24 of the Act of 1986 reads as under: “24. No joint trial of juvenile and person not a juvenile:- (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973, or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. No joint trial of juvenile and person not a juvenile:- (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973, or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973, or any other law for the time being in force, such juvenile and any person who is not a juvenile would but for the prohibition contained in sub-section (1), have been charged and tried together, the court taking cognizance of that offence shall direct separate trials of the juvenile and the other person.” (Emphasis supplied) In view of the aforesaid provision, notwithstanding anything contained in the Code of Criminal Procedure, 1973, a person, who is a juvenile as per Section 2 (h) of the Act of 1986, can not be tried for any offence together with a person, who is not a juvenile. Section 2(h) of Juvenile Justice Act, 1986 reads as under: “2(h) “Juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;” (Emphasis supplied) Thus, a juvenile means a boy, who has not attained the age of 16 years. The petitioners were claiming that they were juvenile as per section 2 (h) of the Act of 1986 and therefore, the Juvenile Court-cum-Additional Chief Judicial Magistrate, Latehar was directed to conduct an enquiry. This enquiry was conducted and report was given by the said officer on 31st January, 2005 in which it has been reported that these three petitioners were juveniles as on the date of offence, i.e. on 23rd May, 1988. This report was accepted by the Additional Sessions Judge, Fast Track Court, Latehar and therefore, trial of these three petitioners can not be conducted with the persons, who are other than juveniles. This report was accepted by the Additional Sessions Judge, Fast Track Court, Latehar and therefore, trial of these three petitioners can not be conducted with the persons, who are other than juveniles. Conducting trial of the juvenile delinquents with the persons other than juvenile is an error on the part of the learned trial court as there is total lack of jurisdiction of the learned trial court in conducting a joint sessions trial of these three juvenile delinquents with the persons who are not juveniles and therefore, Judgment dated 17/22thJune, 2005 (Annexure 1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 172 of 1989 and 172-A of 1989 is fit to be quashed and set aside. It appears that the learned trial court has relied upon Section 20 of the Juvenile justice (Care and Protection of Children) Act, 2000 and on that basis joint trial has been conducted and these juveniles were convicted and for quantification of the sentence, the matter has been referred to the Juvenile Justice Board-cum-Addl. Chief Judicial Magistrate, Latehar. For ready reference, Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is quoted herein below:- “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 (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.” Looking to the aforesaid section, i.e. Section 20 of the Act of 2000, it appears that learned trial court has committed a grave error because Section 18 of the Act of 2000 has not been properly appreciated at all. For ready reference, Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is quoted as under:- “Section 18-No joint proceeding of juvenile and person not a juvenile-(1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.” (Emphasis supplied) For better appreciation of Section 20 of the Act of 2000, there is need of understanding Section 2 (l) of the Act of 2000, which reads as under:- “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;” (Emphasis supplied) In view of the aforesaid amendment in Section 2(l), which has been brought into effect on 22nd August, 2006 it appears that under the old Act of 1986, age of a juvenile boy in conflict with law was enhanced from 16 up to 18 years as per Section 2(l) of the Act, 2000. Therefore, there are several matters, which are pending before the Sessions Court in connection with those persons, who are above the age of 16 years and less than 18 years. Earlier, that is prior to 22nd August, 2006, e.g. for any boy of the age of 17 years trial can be conducted by the sessions court if there is a charge against the accused to be conducted by the sessions court. During pendency of this sessions trial this section 2(l) is brought into force. With respect to these sessions trials, section 20 of the Act of 2000 is applicable, because half the way trial may have already been conducted and therefore, there was no purpose for re-examination of the witnesses and therefore, Section 20 of the Act of 2000 permits the Sessions Court to continue with the trial with respect to the persons above the age of 16 years and less than 18 years. But, looking to the facts of the present case, these petitioners were admittedly below the age of 16 years as on date of offence, i.e. on 23rd May, 1988 and as provided under both the Acts, new as well as old, i.e. under section 24 of the Juvenile Justice Act, 1986 as well as Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, a joint trial of juveniles and persons other than juveniles can not be conducted. This aspect of the matter was not properly appreciated by the Additional Sessions Judge, Fast Track Court, Latehar when convicting these three juvenile delinquents by conducting joint trial with those who were not juveniles. This is an error as the learned trial court has no power, jurisdiction and authority to conduct a sessions case of these three petitioners, who are juvenile delinquents, along with the persons other than juveniles. (III) It has been held by the Hon'ble Supreme Court in the case of Pratap Singh vs. State of Jharkhand & Another reported in (2005) 3 SCC 551 in paragraph nos. 14, 15, 16 and 17 as under:- “14. Mr. Sharan stressed heavily on the word is used in two places of the section and contended that the word is suggested that for determination of age of juvenile the date of production would be the reckoning date as the inquiry with regard to his age begins from the date he is brought before the court and not otherwise. We are unable to countenance this submission. We have already noticed that the definition of delinquent juvenile means a juvenile who has been found to have committed an offence on the date of the occurrence. We may also notice the provisions of Section 18 of the 1986 Act. Section 18 provides for bail and custody of juveniles. It reads : “18. We have already noticed that the definition of delinquent juvenile means a juvenile who has been found to have committed an offence on the date of the occurrence. We may also notice the provisions of Section 18 of the 1986 Act. Section 18 provides for bail and custody of juveniles. It reads : “18. Bail and custody of juveniles.-(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 juvenile Court, such person shall notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on bail with or without surety 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 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 in charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court. (3) When such person is not released on bail under sub-section (1) by the Juvenile Court 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 pendency of the inquiry regarding him as may be specified in the order.” 15. It will be noticed that the word is has been used in more than one place in this section also. Often than not, an offender is arrested immediately after an offence is alleged to have been committed or sometimes even arrested on the spot. 16. This would also show that the arrest and release on bail and custody of juveniles, the reckoning date of a juvenile is the date of an offence and not the date of production. 17. Often than not, an offender is arrested immediately after an offence is alleged to have been committed or sometimes even arrested on the spot. 16. This would also show that the arrest and release on bail and custody of juveniles, the reckoning date of a juvenile is the date of an offence and not the date of production. 17. Furthermore, Section 32 of the Act heavily relied upon by the counsel for the respondent does not envisage the production of a juvenile in the court.” In view of the aforesaid decision, date of occurrence was not to be seen at all for deciding as to whether a person is juvenile or not. The amendment of 2(l) of the Act of 2000 was brought into force on 22nd August, 2006 and it defines that a juvenile is who has not completed 18 years of age as on the date of commission of such offence. Thus, by the virtue of the said amendment in Section 2(l), effect of earlier decision in the case of Pratap Singh vs. State of Jharkhand & Another reported in (2005)3 SCC 551 has been nullified to the effect that date of commission of the offence shall be treated as the cut off date for deciding whether a person is juvenile or not. This cut off date, in the facts of the present case, is 23rd May, 1988. (IV) It has been held by Hon'ble the Supreme court in the case of Hari Ram vs. State of Rajasthan reported in 2009 (13) SCC 211 in paragraph Nos. 35, 59, 68, 69, which are quoted as under:- “35. On the second point, after considering the provisions of Sections 3 and 20 of the Juvenile Justice Act, 2000, along with the definition of “juvenile” in Section 2(k) of the Juvenile Justice Act, 2000, as contrasted with the definition of a male juvenile in Section 2(h) of the 1986 Act, the majority view in Pratap Singh case was that the 2000 Act would be applicable to a proceeding in any court/authority initiated under the 1986 Act which is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1-4-2001. In other words, a male offender, who was being proceeded with in any court/authority initiated under the 1986 Act and had not completed the age of 18 years on 1-4-2001, would be governed by the provisions of the Juvenile Justice Ac t, 2000. 59. The law as now crystallised on a conjoint reading of Sections, 2(k), all the persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was 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. 68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. 69. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.” In view of the aforesaid decision, which was rendered after the amendment in Section 2 (l) was brought into force, it is clear that those who are juveniles, their case must be dealt with by the Juvenile Justice Board. (V) It has been held by the Hon'ble Supreme Court in the case of Babban Rai & Anr. v. State of Bihar reported in 2008 Cri. L. J 1038 in paragraph 5 as under :- “5. So far as the convictions of these two appellants, as confirmed by the High Court, on behalf of the appellants is not in a position to point out any error in the order of the High Court whereby convictions of the appellants have been confirmed. L. J 1038 in paragraph 5 as under :- “5. So far as the convictions of these two appellants, as confirmed by the High Court, on behalf of the appellants is not in a position to point out any error in the order of the High Court whereby convictions of the appellants have been confirmed. Having gone through the impugned judgment and the records, we also do not find any ground to hold that the High Court was not justified in upholding the convictions of the appellants. This being the position, we are of the view that the High Court has not committed any error in upholding convictions of the appellants. Now, the question arises in relation to sentences. In view of our aforesaid finding that these two appellants were juvenile on the date of alleged occurrence and they have now attained majority. It would be just and expedient to set aside their sentences and pass an order of releasing them as they cannot be sent to remand home.” (Emphasis supplied) In the aforesaid decision, Hon'ble Supreme Court upheld the conviction and quashed and set aside the quantum of punishment mainly for the reason that no meaningful purpose will be achieved by punishing the then juveniles for maximum period of three years, who have attained the age of approximately 35 years by the time Hon'ble Supreme Court decided the matter. In the present case also the offence is of 23rd May, 1988 and as per report given by the Juvenile court-cum-Addl. Chief Judicial Magistrate, Latehar dated 31st January, 2005. These petitioners were of less than 16 years of age on the date of commission of the offence and therefore, they were juveniles as per section 2(h) of the Juvenile Justice Act, 1986 and they must have attained more than 35 years of age by now. Therefore also, we are not inclined to relegate this petition to the Juvenile Justice Board for any punishment even if the conviction is upheld by this Court. “5. Therefore also, we are not inclined to relegate this petition to the Juvenile Justice Board for any punishment even if the conviction is upheld by this Court. “5. Therefore, in view of the aforesaid facts, reasons and judicial pronouncements, we, hereby, quash and set aside the following: (I) Judgment dated 17/22th June, 2005 (Annexure 1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 172 of 1989 and 172-A of 1989 to the extent it is concerned with these writ petitioners, (II) Judgment dated 12th July, 2005 passed by the Additional Chief Judicial Magistrate, Latehar in S.T. Case No.172 of 1989/Juvenile tr. No. 97 of 2005 and (III) Memo No. 264 dated 7th February, 2006 issued under the seal and signature of the Under Secretary to the Govt. of Jharkhand, Department of Home. 6. This writ petition is accordingly allowed and disposed of.