Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 942 (JK)

Ishfaq Ashraf Najar v. State of J&K

2017-10-12

M.K.HANJURA

body2017
JUDGMENT : M.K. HANJURA, J. 1. The petitioner has been convicted and sentenced to undergo five years rigorous imprisonment and a fine of Rs. 30,000 in Case FIR No. 105/2009 of Police Station, Chadoora for an offence under Section 377 RPC by a judgment dated 28th of April, 2016 of the Chief Judicial Magistrate, Budgam. On 18th of April, 2016, the petitioner filed an application before the learned Chief Judicial Magistrate, Budgam, seeking protection under the Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter called as ‘The Act’) buttressed with the date of birth certificate issued in his favour by the Jammu and Kashmir State Board of School Education, which depicted that he was born on the 5th day of November, 1991. In addition to this certificate, the petitioner supported his claim of juvenility on the basis of a discharge certificate issued by the Government, Higher Secondary Institute, Panzan, Budgam dated 14th September, 2007. The petitioner claimed that on 10th of June, 2009, i.e. the date the occurrence as alleged in the report laid by the police authorities before the Court of Chief Judicial Magistrate, Budgam, he was 17 years, 7 months and 5 days old and, as such, he was a juvenile and is, therefore, entitled to take umbrage under the provisions of the Act. 2. In the objections filed in, answer to the aforesaid application of the petitioner, the prosecution contended that the said Act has, come into force in the year 2013 and since the occurrence allegedly took place in the year 2009, therefore, the provisions of the Act will not apply to the case of the petitioner as it has a prospective application and not a retrospective one. This plea found favour with the learned Chief Judicial Magistrate, as a consequence of which, he dismissed the application of the petitioner on the 28th day of April, 2016 and recorded the conviction and sentence against the petitioner on the same day. 3. The petitioner challenged the judgment of conviction and sentence before the High Court along with an application for the grant of bail in which the Respondents were directed to file the objections. 4. 3. The petitioner challenged the judgment of conviction and sentence before the High Court along with an application for the grant of bail in which the Respondents were directed to file the objections. 4. The petitioner, thereafter, filed the instant petition under Section 561-A Cr.P.C. of the Jammu and Kashmir Criminal Procedure Code, seeking declaration that he is a juvenile in conflict with law under the provisions of the Act, and, therefore, he could not have been convicted and sentenced for the offence allegedly committed by him under Section 377 RPC in case bearing FIR No. 105/2009 registered at Police Station, Chadoora. The petitioner also sought the quashment of the order dated 4th April, 2016 passed by the learned Chief Judicial Magistrate, Budgam, whereby his petition for declaring him as a juvenile has been dismissed. He also claimed the suspension of conviction and his release on bail till the disposal of the main petition. It has also been pleaded in the petition that the Criminal Appeal bearing No. 11/2016 alongwith Cr. MP No. 01/2016 wherein the petitioner has challenged his conviction and sentence be clubbed with this petition so as to avoid conflicting orders from being passed. 5. Heard and considered. 6. The petitioner has assailed the order impugned in the petition, primarily, on the ground that the same has been passed in violation of the law laid down by a division Bench of this Court. 7. To understand this contention of the petitioner in its proper perspective, what requires to be stated is that Section 2(m) of the Act, provides that a “juvenile” or “child” means a person who has not completed 18 years of age and clause (n) of the same section provides that “juvenile in conflict with law” means the 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. The Jammu and Kashmir Juvenile Justice Act, 1997, as was in force before the promulgation of the Act, was found insufficient in meaning and not catering to the requirement necessary for dealing and handling the juveniles. The State Government, accordingly, made an endeavor to bring the State Act on par with the Central Act for multifarious reasons, the first and foremost being to provide proper care, treatment and protection to the juveniles. 8. The State Government, accordingly, made an endeavor to bring the State Act on par with the Central Act for multifarious reasons, the first and foremost being to provide proper care, treatment and protection to the juveniles. 8. The question that arises for consideration here in this case, is whether the Act will or will not apply to the cases that came to the fore before its enactment. The answer to this is provided in the law laid down by a Division Bench of this High Court in case titled Ajay Kumar vs. State of J&K, 2016 (2) JKJ 161 : 2016 (1) SLJ 201, wherein it has been held as under: “J&K Juvenile Justice Act 2013: The provisions of Section 21 of the Act that determination of juvenility has to be in terms of Section 2(n) even if the juvenile has ceased to be so on or before the date of commencement of the Act. 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. 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. Raising of the age of juvenile to 18 years from 16 years has a 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.” 9. The same view has been repeated and reiterated by a Division Bench of this Court in case titled Mohd. 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.” 9. The same view has been repeated and reiterated by a Division Bench of this Court in case titled Mohd. Rashid vs. State of J&K, 2016 (1) JKJ 810 : 2015 (2) SLJ 852, which reads as under: “Jammu and Kashmir Juvenile Justice Act, 1997 and Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 and Jammu and Kashmir Juvenile Justice (Care and Protection Children) Rules, 2014 - Under Section 21 of the Act of 2013 benefit of juvenility under this Act is available to all those accused who are juvenile-that is-had not completed age of eighteen years as at the time of commission of offence. A claim of juvenility can be raised in all the pending cases including trial, revision, appeal or any other criminal proceedings as if the Act of 2013 was in force at the time of the commission of the offence even if the accused has ceased to be a juvenile on or before the commission of the said Act. Like Section 32 of the Act of 1997, Section 8 of the Act of 2013 casts a duty upon a court to make an inquiry so as to determine age of an accused and record finding whether the accused is juvenile or not whenever a claim of juvenility is raised or the court is of the opinion that an accused person was a juvenile as on the date of the commission of the offence. Where after the repeal of the Act 1997 by the Act of 2013 the question of juvenility of the appellant was raised in the appeal the question having not been determined by the trial court during trial of the accused in accordance with the Act of 1997 held said question is required to be determined afresh under and in accordance with the provisions of the Act of 2013 and the applicable rule of the Rules of 2014.” 10. Looking at the dictum of law laid down above, Section 21 of the Act will have its application to all cases at all material times when the alleged offence was committed, notwithstanding the fact that such benefit was not available under the previous legislation or before the amendment of the Act. Raising of the age of the juvenile from 16 to 18 years has a retrospective effect and the plea of juvenility can be raised at any time, even after the pronouncement of the judgment irrespective of the fact, whether any such plea has, or has not, been raised earlier. It is only the date of the commission of offence which is material and not the date on which cognizance has been taken or the charge has been framed or the conviction has been recorded. It was, therefore, incumbent on the part of the Trial court to look into the issue of the juvenility of the petitioner raised before him by the petitioner. The Trial Court has got swayed by the argument that the Act is prospective and not retrospective in application, which is bad in law and has resulted in the miscarriage of justice. 11. The inherent powers vested in the High Court under Section 561-A Cr.P.C. though very wide in their scope and extent, have to be exercised with restraint and caution. However, when the Court formulates an opinion that the exercise of inherent powers is bound to advance the cause of justice and not to thwart it, and, that if resort is not had to them, it will defeat the cause of justice by advancing injustice or it will be an abuse of the process of the Court, the Court can and has to exercise these powers to prevent injustice. The order of the Trial Court has resulted in defeating the cause of justice inasmuch as the question of the juvenility of the petitioner has not been decided in accordance with the law. The order of the Trial Court has resulted in defeating the cause of justice inasmuch as the question of the juvenility of the petitioner has not been decided in accordance with the law. The authenticity and the veracity of the ‘Date of Birth Certificate’ issued in his favour by the Jammu and Kashmir State Board of School Education and the ‘Discharge Certificate’ issued by the authority of the Government Higher Secondary Institute Panzan, Budgam, dated 14th September, 2007, supporting the claim of the petitioner that he was less than 18 years of age on the date of occurrence has been brushed aside which could not have been done on the face of the law cited above. 12. The cumulative effect of all that has been said and done above is that an enquiry to determine the juvenility status claimed by the petitioner is directed to be conducted by the learned Registrar (Judicial) of the Srinagar wing of the High Court. The learned Registrar (Judicial) shall record the finding, in this regard, on the basis of the material that has been and may be produced by the petitioner in support of his claim that he had not completed 18 years of age on 10th June, 2009, i.e. the date of the alleged occurrence. Learned Registrar (Judicial) shall afford a reasonable opportunity of being heard to the Respondent State to rebut the contentions of the petitioner. The enquiry shall commence within a week from the date the copy of this order is made available to the learned Registrar (Judicial) and he shall make all endeavor to see that the same is brought to its logical conclusion within a fortnight thereafter. The petition filed by the petitioner under Section 561-A (i.e. 561-A No. 199/2017) and the main appeal (i.e. Cr. Appeal No. 11/2016) along with all allied applications shall be listed before this Court for further future directions immediately on the culmination of the enquiry.