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2015 DIGILAW 174 (JK)

Ajay Kumar v. State of J. and K.

2015-04-11

B.S.WALIA, BANSI LAL BHAT

body2015
JUDGMENT : 1. In terms of impugned judgment dated 30-12-2011 formulated by learned Principal Sessions Judge Jammu in File No. 07/Sessions titled State v. Ajay Kumar the appellant-Ajay Kumar stands convicted of offence under Section 302/392, RPC. By virtue of order of sentence dated 5-1-2012, the appellant Ajay Kumar has been sentenced to imprisonment for life and a fine of Rs. 10,000/- under Section 302, IPC while he has been directed to suffer rigorous imprisonment for five years and a fine of Rs. 5,000/- under Section 392, RPC. Sentence has also been imposed for default in payment of fine. Reference has also been made for confirmation of sentence of life imprisonment. The appellant has assailed the judgment of conviction and order of sentence through the medium of criminal appeal No. 05/2012 which is pending consideration before this Court. CR. MA No. 15/2015 has been filed by the appellant to seek benefit of juvenility under the provisions of J. & K. Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter referred to as JJ. Act) on the ground that on the date of commission of offence i.e. 30-8-1995, the appellant was 17 years and 7 months old as per his date of birth recorded as 1-1-1978 in the certificate issued by Headmaster, Government Boys High School Dharamsal (Kalakot). The motion is supported by the date of birth certificate relied upon by the appellant. Appellant has been permitted to place on record copy of school leaving certificate. Date of birth of appellant is reflected as 1-1-1978 in both certificates. 2. Respondent State has filed objections opposing the motion on the ground that the appellant has not raised the plea of juvenility before the trial Court during trial nor has pleaded the same as a ground in criminal appeal filed before this Court. It is further pleaded that the certificates produced by the appellant in support of his claim of juvenility cannot be relied upon. It is pleaded that the enquiry relating to juvenility has to be conducted on the basis of birth certificate issued by a Corporation/Municipal Committee/other notified authority or the matriculation or equivalent certificate or in absence of the aforesaid on the basis of findings recorded by a duly constituted medical board. 3. Heard learned counsel for appellant and learned AAG for the State-respondent. 4. 3. Heard learned counsel for appellant and learned AAG for the State-respondent. 4. JJ Act of 2013 consolidating and amending the law relating to juveniles in conflict with law and children in need of care and protection was enforced with effect from 22-7-2013. This piece of state legislation corresponds to the Central Act of 2000 with amendments introduced in 2006. The Act defines 'juvenile' or 'child' as a person who has not completed eighteenth year of age. The JJ Act of 1997 defined a female child below 18 as a juvenile but excluded a male child above 16 years of age from the definition of juvenile. JJ Act of 2013 has removed the gender discrimination and the relevant age for determining whether a child, male or female, is a juvenile is 18 years. Furthermore, a child found to have committed an offence who was earlier classified as 'delinquent juvenile' under JJ Act of 1997 has been classified as 'juvenile in conflict with law' which has been defined as under: "2(n). "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." 5. This Court, while elaborately dealing with the issue of determining the status of accused as juvenile in conflict with law in case titled Jaspreet Singh Vs. State reported in (2014) 1 JKJ 1 (HC) observed as under: "..........On a plain reading of the definition of 'juvenile in conflict with law' it is manifestly clear that age on the date of commission of offence is relevant for determining the status of a person as a juvenile offender. A person not having completed eighteenth year of age as on the date of commission of offence would be a 'juvenile in conflict with law'. Explanation appended to Section 21 of the Act makes it amply clear that 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 shall be in terms of Clause (n) of Section 2 even if the juvenile ceases to be so on or before the date of commencement of the Act and the provision of the Act shall apply as if the said provisions had been in force when the alleged offence was committed. The Act was enforced on July 22, 2013 while the offence in the instant case was allegedly committed on July 30, 2011. In terms of provisions of Section 21 of the Act the relevant date for determining the status of petitioners as 'juveniles in conflict with law' would be the date of commission of offence, i.e., 30-7-2011 and not the date of enforcement of the Act, i.e., 22-7-2013 wrongly noted as 22-3-2013 by learned Sessions Judge in the impugned order. The finding arrived at by learned Sessions Judge in regard to the status of petitioners is, on the fact of it, erroneous. Same cannot be supported. Learned Sessions Judge failed to notice that provision engrafted in explanation to Section 21 of the Act did not exist in the Central Act of 2000 when Constitution Bench of the Hon'ble Apex Court held in Pratap Singh Vs. State of Jharkhand, (2005) 3 SCC 551 : 2005 CriLJ 3091 : AIR 2005 SC 2731 that the benefit of juvenility cannot be extended to me person who has completed eighteenth year of age as on 1-4-2001, i.e., the date of enforcement of the Act. The applicability of the Act was clarified by Amending Act No. 33 of 2006 (Central) which provided that the benefit of juvenility shall be extended even to juvenile who had completed the age of 18 years on 1-4-2001 and the Act shall have retrospective effect. The explanation added to Section 20 of the Central Act of 2000 (corresponding to Section 21 of the State Act of 2013) is pari materia with the explanation incorporated in Section 21 of the State Act. Learned Sessions Judge landed in error by failing to notice the change in letter of law with the introduction of explanation to Section 20 of the Central Act of 2000 carried out subsequent to the Constitution Bench ruling of the Hon'ble Apex Court in Partap Singh's case (supra). He also failed to notice that the subsequent rulings of the Hon'ble Apex Court in Hari Ram Vs. State of Rajasthan, reported in (2009) 2 Rec. Cri R 478 : AIR 2011 SC (Cri) 2053 laying down that all accused between the age group of 16 to 18 years convicted or still facing trial would be treated as juvenile under Central Juvenile Act of 2000 which has retrospective effect and Amit Singh Vs. State of Rajasthan, reported in (2009) 2 Rec. Cri R 478 : AIR 2011 SC (Cri) 2053 laying down that all accused between the age group of 16 to 18 years convicted or still facing trial would be treated as juvenile under Central Juvenile Act of 2000 which has retrospective effect and Amit Singh Vs. State of Maharashtra reported in (2011) 3 Rec Cri R 859 laying down that the accused was below 18 years on the date of commission of offence and raised the question of juvenility before Hon'ble Supreme Court for the first time was entitled to benefit of juvenility, were noticed by the Hon'ble Apex Court in these decisions. In this regard it would be appropriate to reproduce Paras 9 and 10 of the judgment in Amit Singh's case (supra): "9. The relief prayed for in this writ petition is squarely covered by the law laid down in the case of Hari Ram (supra) whereby this Court had occasion to consider the question elaborately regarding applicability of the Act. This Court considered the decision of the Constitution Bench in the case of Pratap Singh Vs. State of Jharkhand, (2005) 1 Rec. Cri R 836: 2005 (1) Apex Criminal 358 : (2005) 3 SCC 551 : (2005 Cri LJ 3091 : AIR 2005 SC 2731 ), wherein this Court formulated two points for consideration: A. Whether me date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in me Court/Competent Authority? B. Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act 9 and pending when the Act of 2000 was enforced with effect from 1-4-2001?" 6. The Constitution Bench in the above case held that the benefit of juvenility cannot be extended to the person who has completed the 18 years of age as on 1-4-2001 i.e. the date of enforcement of the Act. In the background of this judgment, the Legislature brought Amendment Act 33/2006 proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to me cases pending on 1-4-2001, where a juvenile, who was below 18 years of age at me time of commission of the offence, was involved. In the background of this judgment, the Legislature brought Amendment Act 33/2006 proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to me cases pending on 1-4-2001, where a juvenile, who was below 18 years of age at me time of commission of the offence, was involved. The explanation to Section 20 which was added in 2006 makes it clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, me determination of juvenility of a juvenile would be in terms of clause (1) of Section 2, even if juvenile ceased to be a juvenile on or before 1-4-2001, when the Act came into force and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward me case to the Board concerned for passing sentence in accordance with the provisions of the Act. 10. After the judgment of the Constitution Bench in Pratap Singh (supra), this Court in the case of Hari Ram (supra) considered the above question of law in the light of Amendment Act 33 of 2006 in me provisions of the Act which substituted Section 2(1) to define a 'juvenile in conflict with law' as a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. 7. Learned Sessions Judge, on the basis of enquiry conducted to determine the status of petitioners in regard to their plea of juvenility came to definite conclusion that both the petitioners were above 16 years of age on the date of commission of offence. He found that petitioner Jaspreet Singh was 16 years and 6 months old on the date of commission of alleged offence while petitioner Amandeep Singh was 16 years and 9 months and 12 days old when the alleged occurrence took place. He found that petitioner Jaspreet Singh was 16 years and 6 months old on the date of commission of alleged offence while petitioner Amandeep Singh was 16 years and 9 months and 12 days old when the alleged occurrence took place. Thus, both the petitioners satisfied the definition of 'juvenile in conflict with law' as defined in Section 2(n) of the Act and in terms of provisions of explanation appended to Section 21 of the Act the determination of juvenility had to be done with reference to Clause (n) of Section 2 of the Act even if they ceased to be so on or before 23-7-2013 when the Act was enforced. Thus, the mere fact that they had crossed age limit of 18 years on the date of enforcement of Act did not divest the petitioners of their status as juvenile in conflict with law". 8. The findings recorded by learned Sessions Judge holding the petitioners not to be juveniles being erroneous is, accordingly, set aside."............ 6. This view was affirmed by the Hon'ble Apex Court in Abdul Razaq Vs. State of U.P., AIR 2015 SC 1770 : 2015 CriLJ 2411. It was held that the benefit of juvenility would be available to a person undergoing sentence if he was below 18 years of age on the date of occurrence notwithstanding the fact that such benefit was not available under the previous legislation or before amendment of the Act. It was further held that provisions of Section 20 and the explanation thereto in the Central Act corresponding to Section 21 of the JJ Act of 2013 that determination of juvenility has to be in terms of Section 2(1) of me Central Act corresponding to Section 2(n) of JJ Act of 2013 even if the juvenile has ceased to be so on or before the date of commencement of the Act. It was held that the provisions would apply as if the said provisions have been in force for all purposes and at all material times when the alleged offence was committed. It is thus well settled that raising of the age of juvenile to 18 years from 16 years would have retrospective application and the plea of juvenility can be raised at any time even after the judgment has attained finality and even if no such plea has been raised earlier. It is thus well settled that raising of the age of juvenile to 18 years from 16 years would have retrospective application and the plea of juvenility can be raised at any time even after the judgment has attained finality and even if no such plea has been raised earlier. It is only the date of commission of offence and not the date of taking cognizance or framing of charges or recording of conviction that is to be taken into consideration. In cases where the plea of juvenility has been raised at the appellate stage for the first time, conviction has been maintained but sentence has been set aside. The Hon'ble Apex Court has crystallised the law on the subject as under: "1. Plea of juvenility may be raised at any stage even after the final disposal of the case. 2. Where such claim is raised at the appellate stage, the claimant must produce some material to prima facie satisfy the Court that an enquiry into the claim of juvenility is necessary. 3. What materials would prima facie satisfy the Court cannot be catalogued. Credibility or acceptability of documents like the school leaving certificate obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed in regard to its acceptance or rejection. 4. An affidavit of claimant or his parents or siblings etc in support of claim of juvenility raised for the first time at appellate stage shall not be sufficient justifying an enquiry to determine the age of such person. 5. The benefit intended by the legislation in raising the age of juvenility and giving retrospective effect to the provision should not be allowed to be defeated by the hyper-technical approach. Standard of proof should be preponderance of probability. 6. A Claim of juvenility lacking in credit or patently absurd, frivolous or improbable must be rejected at the very threshold." 7. Applying these tests in the facts and circumstances of the instant case, it is manifestly clear that the claim of appellant regarding status of juvenility raised at the appellate stage primarily rests on the certificate issued by the Headmaster, Government Boys School, Dharamsal (Kalakot) which certified the date of birth of appellant as 1-1-1978. Appellant was shown to be a student of 6th standard. Appellant was shown to be a student of 6th standard. Reliance is also placed on the Electoral Photo Identity Card recording the year of birth of appellant as 1978 without specifying the date and month of birth. These documents appear to have been obtained on or about or after suffering conviction. Respondent State has not come forward to rebut these materials at this stage. Viewed in this background the claim of appellant regarding his date of birth cannot be out-rightly rejected as being absurd, improbable or frivolous. It is true that matriculation certificate as proof of date of birth has not been laid before this Court. It is only in absence of matriculation or equivalent certificate or the date of birth certificate from the School first attended that the Court needs to obtain birth certificate given by the Municipal Authority. However, on the strength of material placed before us, we are of the considered opinion that an enquiry into the claim of juvenility of appellant is warranted. 8. We accordingly direct an enquiry to determine the juvenile status claimed by the appellant. Registrar Judicial, Jammu Wing is directed to conduct an enquiry into the claim of juvenility of appellant and record his finding in regard to the juvenile status claimed by appellant on the basis of material/evidence that may be produced before him in support of appellant's claim that he had not completed 18 years of age as on 30-8-1995 when the alleged occurrence took place. Learned Registrar Judicial shall provide reasonable opportunity to appellant to produce all materials in support of his claim and also provide reasonable opportunity to respondent State to rebut the same. The enquiry shall be commenced within a week from the date copy of this order is made available to learned Registrar Judicial and endeavours shall be made to conclude the same within one month. Appeal shall be listed for hearing as and when the enquiry report is concluded.