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2015 DIGILAW 149 (KAR)

Revathi v. State of Karnataka

2015-02-05

G.NARENDAR, N.K.PATIL

body2015
ORDER : The above writ petition is filed invoking the provisions of Article 226 of the Constitution of India and praying for the issuance of a writ of habeas corpus and direct the release of the petitioner from judicial custody forthwith as the detention of the petitioner is illegal. The illegality of the detention is on the premise that the very trial, by which the petitioner was convicted and sentenced to imprisonment for life, is one without jurisdiction as the petitioner was a minor on the relevant date, i.e., the date of commission of offence being 15.11.2003. The petitioner is seeking to place reliance on two documents viz. Annexure-C, a certificate issued by Periyasami Middle School Ammapettai (Pin code 638311), Bhavani Taluk, Erode District, situate in Tamilnadu and another document being Annexure-D to the writ petition and titled as record sheet pertaining to the year 18.6.1992 to 3.6.1996. Based on the entries in these two records the petitioner would canvass that the same demonstrate and prove the status of the petitioner as a minor on the relevant date and consequently divesting the Court of Sessions of its jurisdiction to try the petitioner who was a minor then. 2. It is contended by the petitioner’s counsel that the petitioner is an orphan originally hailing from Tamilnadu and was brought to Bangalore in the latter part of 2003 to work as a house maid. It is the case of the petitioner that the petitioner was introduced to one Joseph Raj, a resident of Chennai through his neighbour’s domestic help and that the petitioner worked in the house of the said Joseph Raj for about two months and thereafter, as the sister of the said Joseph Raj, who was residing in Bangalore, needed a domestic help to tender to their mother who had suffered a paralytic stroke, the said Joseph Raj accompanied the petitioner to Bangalore and left her in the custody of his sister and that during her stay he received a telephone call from his sister one day stating that the petitioner had committed a theft of Rs.150/and had left the house without informing them. 3. Thereafter it appears that the petitioner who started working in the house of one Radha Srivatsa, a widow, had committed murder of the said Radha Srivatsa on 15.11.2003. 3. Thereafter it appears that the petitioner who started working in the house of one Radha Srivatsa, a widow, had committed murder of the said Radha Srivatsa on 15.11.2003. That there were screams and shouts by the deceased which were heard by the neighbours and when the other residents called the deceased and knocked upon the door there was no response. Thereafter High Grounds Police Station was notified, who visited the apartment and broke open the door and found the deceased lying in a pool of blood. The accused (petitioner herein) had also sustained bleeding injuries on her stomach and hands and therefore, was taken to Mallige Nursing Home and admitted there. Later on 21.1.1.2003 the accused was arrested and produced before the Magistrate and the police obtained her custody for the purpose of interrogation. The Court also directed the age determination test to be carried out. It appears that the accused was also subjected to a Polygraph test and thereafter the charge sheet was laid against her. The accused is said to have engaged the services of one Smt. N. Varnashri to defend her in the trial. It is also contended by the petitioner that immediately after her arrest the Committal Court appears to have directed for age determination and verification test to be conducted on the accused in order to ascertain as to whether the accused was a minor or major. Accordingly, age verification test in Lady Bowring and Curzon Hospital was conducted which issued a report of examination dated 24.11.2003 and therein opined that the petitioner was between 18 to 20 years. Though the petitioner’s counsel makes a passing reference to the test, no material is placed in support of the circumstances necessitating the test. The petitioner has produced the report dated 24.11.2003 which has been carried out in close proximity to the relevant date. The report reveals that the same is based on the physical, dental and radiological examination of the accused (petitioner herein) and categorically opines that the accused/petitioner is aged between 18 to 20 years. The petitioner also produces the wound certificate issued by Mallige Medical Centre where she was shifted to on the relevant date. The Committal Court on the basis of the age determination test was pleased to commit the accused to the Sessions Court for trial. The petitioner also produces the wound certificate issued by Mallige Medical Centre where she was shifted to on the relevant date. The Committal Court on the basis of the age determination test was pleased to commit the accused to the Sessions Court for trial. The court of Sessions after a detailed trial, by its judgment and order dated 25.7.2005 was pleased to hold the accused (petitioner) guilty of the offences under Section 302 of Indian Penal Code and sentenced her to life imprisonment and to pay a fine of Rs.2,000/and in default to undergo further imprisonment for a term of 6 months. The Court of Sessions further directed that the accused shall be given set off for the period of detention already undergone under the provisions of Section 428 of Cr. P.C. 4. The petitioner’s counsel would agitate that the petitioner was not afforded effective legal assistance and was provided with the legal aid both in the trial court as also in the High Court. This contention cannot be countenanced as the Sessions Court in para 7 of its judgment clearly holds that the petitioner had engaged the services of Smt. N. Varna Shri to defend her. The petitioner further aggrieved by the order of judgment and conviction sentencing her to imprisonment for life approached this Hon’ble by way of Criminal Appeal No.2748/06. The Division Bench of this Court after hearing the petitioner through her counsel Sri. B.S. Prasad and the learned SPP, was pleased to hold that order of conviction recorded by the Trial Court is sound and proper and consequently dismissed the appeal. The petitioner has produced the copy of the order sheet of the Committal Court viz. CMM, Bangalore in Crime No.553/03. The order sheet reveals recordings of the Committal Judge who has recorded the petitioner as Juvenile detenue when she was produced in the chambers and on enquiry she submitted that her name is Revathi and her age is about 16 years and her father resides in Chennai but she does not know his address. It is also recorded that no guardians have come before the Court. In these circumstances the court of the CMM has been pleased to grant the custody of the accused (petitioner) for the purpose of getting the age determined. It is also recorded that no guardians have come before the Court. In these circumstances the court of the CMM has been pleased to grant the custody of the accused (petitioner) for the purpose of getting the age determined. Pursuant to the same the jurisdictional police have produced the petitioner before the medical authorities and as stated supra, they have opined by the report dt.24.11.2003 that the accused is aged between 18 and 20 years. On the basis of this finding the Jurisdictional Magistrate has committed the case to the court of Sessions in accordance with law. Pursuant to the committal, the Court of Sessions has tried the petitioner herein for the offences under Sections 302 and 307 of IPC and has been pleased to convict the petitioner. As stated supra, the same was appealed before this Court and this Court did not find any ground to interfere with the findings of the Sessions Court and confirmed the order passed by the Sessions Judge. 5. In this background the petitioner presented the present petition impugning the order of conviction and trial by the Sessions Court on the premise that the petitioner herein was a juvenile on the relevant date. 6. It is pleaded on behalf of the petitioner that the petitioner studied in a school in Bhavani Taluk Erode dist. Tamilnadu upto 4th standard only and that as per the records maintained by the school, her date of birth is 4.7.1987 and if her age is calculated on the said basis she would be a minor aged about 16 yrs, 4 months and 11 days on the relevant date. It is her further case that during her incarceration she got married to another convict Anburaj on 28.3.2011. It is the further case of the petitioner that during her incarceration, one P.P. Babu Raj, member of the Juvenile Justice Board Mysore Dist. informed her of her rights under the Juvenile Justice (Care and Protection) Act, 2000 (for short hereinafter referred to as ‘the JJ Act’) and consequent to this information the petitioner with the help of her husband with great difficulty was able to secure the records, during their parole period, from the school authorities from the place called Ammapettai of Bhavani Tq. Erode dist. Erode dist. It is contended on behalf of the petitioner that the continued detention is violative of the fundamental rights guaranteed under Article 21 of the Constitution of India. 7. It is also contended by the petitioner that the trial/committal Court erred in not giving the statutory concession under Clause (b) Sub Rule (3) of Rule 12 of the Juvenile Justice (Care and Protection) Rules, 2007 (for short hereinafter referred to as ‘the JJ Rules’). The petitioner’s counsel would also rely on several material including an extract in a table form showing the standards adopted by various authors for determining the age based on appearance and fusion of some epiphyses. Some material on the anatomical structure is also furnished to the court. The petitioner’s counsel has also submitted a detailed written arguments. He has placed reliance on the provisions of Rule 12 of the JJ Rules and also relied on several citations and particularly relying upon an observation of the Hon’ble Supreme Court at paragraph 36 in the case of Ashwani Kumar Saxena – vs – State of Madhya Pradesh reported in AIR 2013 SC 553 . The petitioner’s counsel would argue that the certificates produced by the petitioner at Annexures C and D to the writ petition ought to be treated as equivalent to matriculation certificate or at least the entries in the certificates Annexures C and D ought to be equated to the entries in the matriculation school leaving certificate and it is not for the Court to enter into a roving enquiry and go beyond the documents (Annexures C and D) placed on record. He would also rely on paragraph 45 of the above judgment. Similarly the petitioner would also rely on the judgment of Hon’ble Supreme Court reported in 2011 (13) SCC 744 rendered by the Hon’ble Apex Court in Amit Singh vs State of Maharashtra wherein the Hon’ble Supreme Court after considering the birth certificate and the entry relating to the date of birth in the Transfer Certificate and the date of birth recorded in the marks sheet issued by the Council for the Indian School Certificate Examinations, concluded that the petitioner was a minor and was pleased to issue a writ of habeas corpus holding that the detention of the accused is illegal and directed his release. The petitioner’s counsel would also rely on the judgment reported in AIR 1982 SC 1297 rendered in the case of Jayamala vs Home Secretary Government of Jammu and Kashmir and Ors. to advance his argument in support of the contention that the Court ought to have given the statutory concession under 12(3) of the JJ Rules. He would further argue that if such statutory concession has been allowed then, the age of the petitioner would have been 17 years and the CMM Court/Committal ought to have treated her as a juvenile. The petitioner’s counsel would also contend that the estimation of the age of the petitioner as per the medical opinion is not scientific and is not supported by the medical jurisprudence and he has placed reliance on the material. The petitioner has also relied upon the judgment reported in 2012(4) RCR (Criminal) 909. (Gurdarshan Singh – vs – State of Punjab and Anr.) The Hon’ble High Court of Punjab and Haryana has dealt with the question and rendered the judgment on the point as to whether the conviction and sentence of a juvenile can be set aside by the High court exercising powers under Article 226 of the Constitution of India by issuing writ of habeas corpus. As stated supra, the Coordinate Bench of High Court has relied upon the case reported in Amit Singh and held that habeas corpus proceeding could be an adequate and appropriate remedy after exhaustion of ordinary criminal process and in that case the factum was that the trial Court had convicted him, appeal was dismissed by the High Court and SLP was also dismissed and thereafter the petitioner approached the Supreme Court under Article 32 of the Constitution of India and the Hon’ble Apex Court granted him relief after rendering a finding that he was a juvenile. It was also held that procedural irregularity and error in trial go the heart of the case and in cases involving violation of fundamental rights like those guaranteed under Article 21 it was concluded that the habeas corpus petition is maintainable. The petitioner has also relied upon the judgment rendered by the Coordinate Bench of the Hon’ble Madras High Court. It was also held that procedural irregularity and error in trial go the heart of the case and in cases involving violation of fundamental rights like those guaranteed under Article 21 it was concluded that the habeas corpus petition is maintainable. The petitioner has also relied upon the judgment rendered by the Coordinate Bench of the Hon’ble Madras High Court. The petitioner would further argue that the interpretation of the Juvenile Justice (Care and Protection) Act, 2000 should be an interpretation which is beneficial to the juveniles, failing which it would be impossible to achieve the object of the Juvenile Justice (Care and Protection) Act, 2000. In this regard the counsel would rely on the judgment of Hon’ble Apex reported in AIR 2005 SC 2721 (Pratap Singh – vs – State of Jharkhand and Anr.) 8. Per contra the State has filed its detailed statement of objections and has also relied upon several citations to negate the contentions raised by the petitioners. The respondent in their statement of objections have narrated the heinous crime committed by the petitioner and the detailed investigation, including scientific investigation of the crime. The respondent in paragraphs 7 and 8 have asserted that no fixed procedure can be adopted nor any particular test is prescribed for determining the age with authority and that authenticating the age depends and differs to which part of the world a person hails from and the material relied upon by the petitioner cannot be generalized and applied to every person alike. In para 7, to contest the assertion of the petitioner with regard to age determination on the basis of appearance and fusion it is contended that various factors like geographical condition, race, sex, nutrition and health condition including hormonal status and entire process of physical, dental and radiological examination put together will be necessary for estimating the age. The respondent also relied upon certain documents to controvert the assertions of the petitioner with regard to age determination and in this regard he produced Ann.R1 to disprove the theory being canvassed by the petitioner. The State also filed detailed written submission to controvert the assertions by the petitioner. In sum and substance the contention of the respondent is that the issue of age is being raised at a distant point of time and that the petitioner has not furnished any record as detailed under the JJ Act & Rules. The State also filed detailed written submission to controvert the assertions by the petitioner. In sum and substance the contention of the respondent is that the issue of age is being raised at a distant point of time and that the petitioner has not furnished any record as detailed under the JJ Act & Rules. The State also contests the authenticity of the Annexures C and D on which the petitioners rely upon heavily to demonstrate that the petitioner was a minor on the relevant date. It is also contended by the respondent/State that there is no material on record to relate the entries in Annexures C and D to the petitioner. He would also state that this Court being a court of record cannot be expected to enter upon and adjudicate the contentious issue of age at this late point of time and that it is a question of fact which has been ascertained by the Hon’ble Court and admitted by the accused, the petitioner herein. The respondent’s counsel would further state that the age of the accused/petitioner herein was never an issue before the Jurisdictional trial Court or before the Division Bench which disposed of the appeal of the accused. Moreover, the accused was represented by a counsel and all the witnesses have been cross examined and detailed arguments have been rendered. The accused/petitioner was also represented before the Hon’ble High Court by a counsel. In this background and in the above circumstances, the only point that arises for consideration in this petition is, ‘Whether the petitioner is entitled to invoke the jurisdiction of this court to exercise its powers under Article 226 of the Constitution of India to issue the high prerogative writ of habeas corpus and to set aside the order of the Appellate Court convicting/upholding the conviction of the accused, on the basis of an undisputed fact and on an issue which never was agitated nor contested before the jurisdictional court or the Appellate Court, which is but a Coordinate Bench of this Hon’ble Court’. 9. It is relevant to note that the office has raised objection regarding the maintainability of the present petition. 9. It is relevant to note that the office has raised objection regarding the maintainability of the present petition. We have no hesitation in concluding that writ of habeas corpus can be issued in circumstances where the issue of age was not a subject matter for consideration before the competent courts but it is raised for the first time and demonstrated before this Court without any ambiguity. 10. In the instant case the peculiar circumstances are that the committal court has independently taken upon itself the exercise of determining the age of the accused. Pursuant to such an exercise it has been factually concluded that the accused is aged between 18 and 20 yrs. Based on such a conclusion, the Committal court has referred the matter for trial by the Jurisdictional Sessions Court. Though the accused had submitted before the CMM regarding her age, neither she nor her counsel have deemed it fit to contest the findings in the report much less the exercise by the Court to ascertain her age. Even at the appellate stage neither the petitioner nor her counsel has found it necessary to challenge the determination of her age. It is settled law that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction. 11. If it should appear on the face on return that if a person is in detention in execution of a sentence on indictment on a criminal charge that would be a sufficient answer to negate the request for issuance of writ of habeas corpus. Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, where the conviction and sentence had been upheld on appeal by a Court of competent jurisdiction, the mere fact that the trial Court had acted without jurisdiction will not justify interference treating the appellate order also as a nullity. Evidently, the Appellate Court in a case which comes before it on appeal, is fully competent to decide whether the trial was, with or without jurisdiction and it is fully endowed with the power to decide the matter rightly as well as wrongly. 12. As stated supra, the question of age was a concluded fact and not an issue either before the Sessions Court or even before the Appellate Court. 12. As stated supra, the question of age was a concluded fact and not an issue either before the Sessions Court or even before the Appellate Court. The petitioner by her omission to challenge the finding of her age cannot now be permitted to turn around and invoke the jurisdiction of this Hon’ble Court under Art. 226 of the Constitution of India and persuade the court to issue the writ of habeas corpus to quash her detention and set her at liberty. 13. In the catena of decisions relied upon by the petitioner the same would reveal that consistently in all the cases the question about the minority status of the petitioner was never in question nor any conclusion reached regarding the same, but despite the same the trial Court and the Appellate Court had proceeded to try the juvenile delinquent as majors. On the other hand, in the present case the petitioner has been determined to be a major and she has stood trial as a major after having accepted the conclusion arrived at by the trial Court regarding her age. Thus any interference by this Court by exercising the powers vested in it under Article 226 of the Constitution of India would amount to sitting in judgment over a finding of fact and hence we have to hold the same against the petitioner and reject the above writ petition as one being not maintainable. 14. The Respondent/State has also relied upon the judgment of the Apex Court and Hon’ble High Court. A full bench decision of the Punjab and Haryana High Court in the case reported in 1981 Crl. L.J 1141 has held that the provisions of Art.226 of the Constitution of India cannot be invoked for the issuance of a writ of habeas corpus against the Appellate judgment of the High Court itself and that a convict cannot be permitted to challenge the order of conviction as being erroneous in a habeas corpus proceeding and the only remedy would be to appeal to the High Court or the Supreme Court or approach the State Govt. and we concur with the same. 15. and we concur with the same. 15. The respondent/State has further relied upon the judgment rendered by a Constitution Bench of the Hon’ble Apex Court reported in AIR 1951 SC 217 and also the judgment reported in (1966) SCR 744/ AIR 1967 SC 1 rendered in the case of Naresh Shridhar Mirajkar and Ors – vs State of Maharashtra and Anr. 16. Apart from the above the respective counsels have also relied upon several rulings by the Hon’ble Apex Court and Hon’ble High Courts. There is no quarrel on the principles of law laid down by the Hon’ble Apex Court. The same have been rendered in circumstances where there is no dispute with regard to facts, particularly the age of the petitioners. In the present case it is not merely a case of the State disputing the petitioner’s assertion regarding age but it is a concluded fact pursuant to a direction of the Court and that factual finding has not been disputed either in the trial or in the appeal before this Hon’ble Court. Hence, the judgment relied upon by the petitioner are not applicable to the facts and circumstances of the case and the reliance there upon does not advance the case of the petitioner in any manner. 17. Thus, we conclude without any hesitation that a writ of habeas corpus cannot be called upon to be issued to set aside a judgment of the High Court itself on the basis that it is erroneous. The Division Bench of this Hon’ble High Court which heard and rejected the Criminal Appeal by the petitioner was competent and vested with jurisdiction to consider the vexed issue of age of the accused (petitioner herein). The petitioner having not chosen to do so or agitate the issue before the Division Bench cannot now persuade this Court to exercise its jurisdiction under Art. 226 of the Constitution of India and issue a writ of habeas corpus to set her at liberty by negating the judgment rendered by the Division Bench in the Criminal appeal. 18. Further even on the merits of the matter, involving the factual aspects pertaining to the documentary evidence (produced at Annex. C and D to the writ petition), the petitioner has not canvassed before the Court regarding the authenticity of the same. 18. Further even on the merits of the matter, involving the factual aspects pertaining to the documentary evidence (produced at Annex. C and D to the writ petition), the petitioner has not canvassed before the Court regarding the authenticity of the same. As seen from the records (Annexures C & D), the same are issued by a school in Ammapettai of Bhavani Taluk, Erode Dist. It has been the version of the accused before the Committal Court that she is the resident of Chennai and that her father is residing at Chennai but she does not know his address. The address of the accused/petitioner herein is shown as daughter of Raman residing near Choolai post office Chennai. No independent or corroborative material is placed before the Court to relate the documents at Annexures C and D to the petitioner. The claim and evidence is that the petitioner (accused therein) is a resident of Chennai but the records pertain to a town which is several hundred kms (nearly 400 kms) from her admitted place of residence. These being disputed questions of fact and the same being seriously disputed by the respondent-State, it would not be appropriate for this Court to exercise its jurisdiction under Art. 226 of the Constitution of India for issuance of the prerogative writ of habeas corpus and set the petitioner at liberty. 19. For the foregoing reasons this Court unhesitatingly concludes that the writ petition is neither maintainable in law nor on merits and accordingly, writ petition stands dismissed. Further, in the facts and circumstances of the case, there shall be no order as to costs.