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2015 DIGILAW 1293 (KAR)

Ezaz v. State

2015-11-27

RATHNAKALA

body2015
ORDER : Rathnakala, J. 1. Learned HCGP takes notice for respondent-State. Petitioner herein is convicted in respect of offence punishable under Section 302 of IPC. He was acquitted by the Sessions Court in SC No. 101/1996 vide judgment dated 04.01.1998. In Crl.A. No. 356/1998 preferred by the State before this Court, he has been convicted for the offence punishable under Section 302 of IPC, vide judgment dated 18.11.2002. He preferred WP No. 101/2014 before the Apex Court challenging his conviction, which came to be dismissed vide order dated 30.07.2014. 2. Sri Shaikh Saoud, learned counsel for the petitioner submits that as brought out by the prosecution during the trial, petitioner was aged 17 years, 10 months and 2 days on the date of offence. He is a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short 'Act') as contemplated under the definition clause of k and l. The petitioner was born on 17.07.1978 as per Annexure-D, which was marked as Ex. P22-School Certificate, during the trial. The Juvenile Justice Board vide order dated 25.08.2015, on examination of the documents, addressed a letter to the DIG of Central Prison, that as on the date of the offence, he was aged 17 years, 10 months. The petitioner during his tenure in jail prosecuted his further education. As on the date of offence, he was studying in I PUC. Now, he possesses Master Degree in Mass Communication & Journalism. If he released on bail, he will prove to be an asset to the nation. He is entitled for benefit of the Act of 2000 as held by the Apex Court in the case of Abdul Razzaq Vs. State of U.P. in Crl. Misc. Petition No. 17870/2014 and also in the case of Hakkim Vs. State reported in (2014) 5 SCC (Cri) 695. 3. Learned HCGP though does not dispute the position of law laid down by the Apex Court in the judgment cited supra submits that there shall be an enquiry to assess age of the accused as on the date of offence as per Rule 98 of Schedule 1 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 4. There is no dispute to the fact that the petitioner is born on 17.07.1978 as evinced by Annexure-D which is marked as Ex. P22-School Certificate, in evidence during the trial. 4. There is no dispute to the fact that the petitioner is born on 17.07.1978 as evinced by Annexure-D which is marked as Ex. P22-School Certificate, in evidence during the trial. In the case of Hakkim (supra), the accused was aged 17 years and 9 months as on the date of incident. The Apex Court at paras-20 and 21 observed thus: "20......... The High Court observed that as per the contentions of the petitioner, he was aged 17 years and 9 months at the time of commission of the offence. It is pertinent to mention here that the High Court correctly applied the provisions of the 1986 Act in the present case, thereby leading to the finding that since the petitioner has attained the age of 17 years and 9 months on the date of commission of the offence, hence he was not a juvenile as per the provisions of the Act of 1986. 21. Once, therefore, it is shown that the appellant in Criminal Appeal No. 1410 of 2011, who was A-1, was only 17 years and 9 months on the date of the occurrence, the decision in Ajay Kumar Vs. State of M.P. applies wherein in the similar circumstances it was held as under: (SCC p. 84, paras 6-7) "6. Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'the Juvenile Justice Rules, 2007') provides the procedure as to how a case of a juvenile who is in conflict with law should be disposed of. The same reads as follows: '98. Disposed of cases of juveniles in conflict with law.- The State Government or as the case may be the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, determine his juvenile in terms of the provisions contained in the Act and Rule 12 of these Rules and pass an appropriate order in the interest of the juvenile in conflict with law under Section 64 of the Act, for the immediate release of the juvenile in conflict with law whose period of detention or imprisonment has exceeded the maximum period provided in Section 15 of the said Act'. 7. 7. In the light of the aforesaid provision, the maximum period of which a juvenile could be kept in a special home is for three years. In the instant case, we are informed that the appellant who is proved to be a juvenile has undergone detention for a period of about approximately 14 years. In that view of the matter, since the appellant herein was a minor on the date of commission of the offence and has already undergone more than the maximum period of detention as provided for under Section 15 of the Juvenile Justice Act, by following the provisions of Rule 98 of the Juvenile Justice Rules, 2007 read with Section 15 of the Juvenile Justice Act, we allow the appeal with a direction that the appellant be released forthwith". In that view of the matter, without any further pondering, it has to be held that the petitioner who was a juvenile as on the date of incident is entitled for the benefit of Act of 2000. Petition is allowed. Period of sentence served by him till now since exceeds maximum period of detention contemplated under the Act of 2000, i.e. 3 years, he shall be released forthwith, if not required in any other cases. Registry is directed to send information to the Jail Authority forthwith.