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Madhya Pradesh High Court · body

2016 DIGILAW 978 (MP)

Bharat v. State of M. P.

2016-11-02

JARAT KUMAR JAIN

body2016
ORDER 1. Learned Counsel for the appellant submits that he does not wish to press I.A. No.2632/2016, an application for suspension of jail sentence. In view of the report of Sessions Judge that on the date of incident the appellant was juvenile. 2. Thus, the application is dismissed as not pressed. 3. Heard on I.A. No.3412/2016, an application under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 [for short “J.J. Act”]. 4. The Special Judge, Indore in Special Case No.5/2009 on 3.1.2014 convicted the appellant under section 8 read with section 15(c) and under section 26 of the NDPS Act and sentenced to 10 years R.I. and fine of Rs.1,00,000/- and two years R.I. and fine of Rs.2,000/-, with default clause. Against this conviction and sentence the appellant has filed this appeal. During pendency of the appeal the appellant has filed the aforesaid application on the ground that on the date of incident i.e. 18.7.2005 appellant was juvenile. In support filed the School Certificate in which his date of birth was recorded as 10.8.1988. 5. Respondent/State in reply challenged this fact, hence this Court has sent the matter to Special Judge for conducting inquiry. In compliance of the order Sessions Judge being in charge of Special Judge conducted the inquiry and sent the report dated 3.9.2016 holding that as per the scholar register appellant’s date of birth is 10.81988, hence on the date of incident i.e. 18.7.2005 the appellant was aged 16 years 11 months and 8 days. Hence, in view of section 2A of J.J. Act appellant was juvenile. 6. Learned counsel for the appellant submits that the question of juvenility can be raised at any stage. Due to ignorance the appellant could not raise this plea before the Special Judge. The Sessions Judge gave a finding that on the date of incident the appellant was juvenile. The respondent/State has not filed any objection in regard to the said report. Thus, it is proved that on the date of incident i.e. 18.7.2005 the appellant was juvenile. As on the date of incident appellant was juvenile, therefore, he should have been tried by the Juvenile Justice Board appellant has already suffered jail sentence for 2 years 11 months. Hence, the appellant does not wish to challenge the conviction, however, the sentence be reduced upto already undergone. 7. As on the date of incident appellant was juvenile, therefore, he should have been tried by the Juvenile Justice Board appellant has already suffered jail sentence for 2 years 11 months. Hence, the appellant does not wish to challenge the conviction, however, the sentence be reduced upto already undergone. 7. Learned Panel Lawyer submits that the matter be placed before the concerned Juvenile Justice Board for passing appropriate sentence as per law. 8. After hearing learned counsel for the parties perused the record and the report submitted by the Sessions Judge, Indore. 9. The finding of the learned Sessions Judge that the appellant’s date of birth is 10.8.1988 and on the date of incident i.e. 18.7.2005 appellant was aged 16 years 11 months and 8 days, hence, he was juvenile is based on documentary evidence. 10. The appellant has already faced the trial and has been convicted as aforesaid. The appellant does not wish to challenge the conviction, hence, the conviction is hereby maintained. As per clause (g) of sub-section (1) of section 15 of the J.J. Act, the Juvenile Justice Board on recording conviction may pass an order directing the juvenile to be sent to a Special Home for a period of three years. The appellant has already suffered 2 years 11 months 3 days sentence till today. Hon’ble apex Court in the case of Vijay Singh v. State of Delhi, reported in AIR 2012 SC 3437 held as under :- "12. The inquiry report, which inspires confidence, unquestionably establishes that as on the date of occurrence, the appellant was below the age of 18 years; was thus, a "juvenile" in terms of the Juvenile Justice Act and cannot be denied the benefit of the provisions of the said Act. Therefore, having been found to have committed the aforementioned offence, for the purpose of sentencing, he has to be dealt with in accordance with the provisions contained in section 15 thereof. As per clause (g) of sub-section (1) of section 15 of the Juvenile Justice Act, the maximum period for which the appellant could be sent to special home is a period of three years. 13. Under the given circumstances, the question is what relief should be granted to the appellant at this juncture. As per clause (g) of sub-section (1) of section 15 of the Juvenile Justice Act, the maximum period for which the appellant could be sent to special home is a period of three years. 13. Under the given circumstances, the question is what relief should be granted to the appellant at this juncture. Indisputably, the appellant has been in prison for the last many years and, therefore, at this distant time, it will neither be desirable nor proper to refer him to the Juvenile Justice Board. Accordingly, we follow the course adopted in Bhola Bhagat v. State of Bihar; sustained the conviction of the appellant for the offence for which he has been found guilty by the Sessions Court, as affirmed by the High Court and at the same time quash the sentence awarded to him. 14. Resultantly, the appeal is partly allowed to the extent indicated above. We direct that the appellant shall be released forthwith, if not required in any other case."] 23. Having regard to such a course adopted by this Court in the above reported decisions, and in the case on hand based on the report of the District and Sessions Judge, we are also convinced that the appellant was below 18 years of age on the date of commission of offence and the Juvenile Justice Act would apply in full force in his case also. While upholding the conviction imposed on the appellant, we set aside the sentence imposed on him and direct that he be released forthwith, if not required in any other case. The appeal is partly allowed to the extent indicated above." 11. In view of the above dictum, at this juncture when the appellant is about to complete his 3 years period of detention, there is no purpose to send the matter to Juvenile Justice Board for passing the sentence. Thus, it is directed that after completing the detention period of three years the appellant be released, if not required in any other case. 12. Accordingly, I.A. No.3412/16 is allowed as well as the appeal is partly allowed to the extent indicated above. 13. Copy of the judgment be sent to Special Judge for issuance of supersession warrant in consonance of this judgment. Vikas Jain for appellant; R. S. Parmar, Panel Lawyer for respondent/State.