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2019 DIGILAW 410 (GAU)

Jamal Uddin Choudhury v. State of Assam

2019-04-02

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. A Ahmed, learned counsel for the applicants/appellants. Also heard Ms. S. Jehan, learned Additional Public Prosecutor, Assam. 2. The criminal appeal No. 73/2018 has been preferred by three persons, namely, 1. Jamal Uddin Choudhury, 2. Nizam Uddin Choudhury and 3. Rafique Uddin Choudhury against the Judgment and Order dated 19.12.2017 of the learned Sessions Judge Hailakandi in Sessions Case No. 81/2009 under Sections 302/323/34 of the IPC, by which all the aforesaid persons were convicted under the aforesaid sections and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- each and in default thereof to undergo further imprisonment of 2(two) months for the offence under Section 302 of the Indian Penal Code (for short, IPC). 3. By the interlocutory application being IA(Crl.)5/2019, the appellants seek for suspension of sentence and for releasing them on bail. In the interlocutory application, a stand has been taken on behalf of the applicant/appellant No. 3, Rafique Uddin Choudhury that he was a juvenile at the time when the alleged offence had taken place. 4. Accordingly by the Order dated 25.01.2019, in the appeal, a direction was issued for an inquiry to be made by the learned Sessions Judge, Hailakandi to determine the age of the applicant/appellant No. 3, Rafique Uddin Choudhury at the time of the alleged occurrence in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and to submit a report before the Court on or before 06.03.2019. Pursuant to such order, the learned Session Judge, Hailakandi had submitted an enquiry report dated 05.03.2019 and the relevant part of the report is as follows: "The Medical Board in its report opines that the present age of the convict Rafique Uddin Choudhury is above 25 years and below 30 years. If the present age of the convict is taken as 30 years on 04.03.2019 i.e. the date of issuance of the report, it is arrived that the date of birth of the convict is 04.03.1989. The incident occurred on 12.02.2007 and if his age is computed on the basis of his date of birth, it appears that at the relevant time of occurrence i.e. on 12.02.2007, his age was 17 years 11 months and 8 days." 5. The incident occurred on 12.02.2007 and if his age is computed on the basis of his date of birth, it appears that at the relevant time of occurrence i.e. on 12.02.2007, his age was 17 years 11 months and 8 days." 5. The report clearly indicates that at the time of occurrence of the incident i.e., 12.02.2007, the age of the applicant/appellant No. 3, Rafique Uddin Choudhury was 17 years, 11 months and 8 days. The said report had neither been objected to and nor we find any reason to deviate from the same. Accordingly the report of the learned Sessions Judge, Hailakandi is accepted and the age of the applicant/appellant No. 3 Rafique Uddin Choudhury at the time of the occurrence on 12.02.2007 is accepted to be 17 years 11 months and 8 days. 6. Section 7A(i) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the JJ Act of 2000) provides that whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry and take such evidence as may be necessary, so as to determine the age of such person, and shall record a finding whether the person is a juvenile or not. 7. The order dated 25.01.2019 requires that an enquiry be made on the claim of juvenility of the applicant/appellant No. 3 pursuant to the provision of Section 7A(1) of the JJ Act of 2000. Section 7A(1) provides that if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) of the Section 7A, it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect. 8. As we have already arrived at a conclusion that the applicant/appellant No. 3 was a juvenile on the date of commission of the offence, by invoking the power under Section 7A(2), we are now required to forward the juvenile to the Board for passing appropriate orders and further to declare that the sentence of life imprisonment and fine of Rs. As we have already arrived at a conclusion that the applicant/appellant No. 3 was a juvenile on the date of commission of the offence, by invoking the power under Section 7A(2), we are now required to forward the juvenile to the Board for passing appropriate orders and further to declare that the sentence of life imprisonment and fine of Rs. 2000/- in default to undergo imprisonment of further 2(two) months as per the Judgment and Order dated 19.12.2017 of the learned Sessions Judge, Hailakandi in Sessions Case No. 81/2009 shall have no effect. 9. Ms. S. Jehan, learned Additional Public Prosecutor, Assam by relying on the pronouncement of the Division Bench of the Delhi High Court in State and Others Vs. Jagtar and Others reported in 2014 (213) DLT 389 had raised a contention that a further determination would also be required to be made by this Court as to the sustainability of the conviction made in the Judgment and Order dated 29.12.2017 passed by the Sessions Judge, Hailakandi, against the applicant/appellant No. 3. 10. The learned Additional Public Prosecutor relies upon the provision in paragraph 109 of the Judgment and Order dated 01.08.2014 of the Delhi High Court which is as follows: "109. From the above discussion, it is quite clear that once a plea of juvenility is raised in an appeal against conviction before the High Court, the course to be followed by the High Court is clear. The High Court is required to cause the inquiry in terms of Section 7(A) of the JJ Act to give a finding upon the correctness of the plea of juvenility to be conducted. The High Court also has to Death Sentence Ref. No. 5/2010, Crl.A. Nos. 979/2008, 1087/2010 & 1301/2010 65 examine the legality and validity of the conviction of the juvenile. In case the High Court concludes that the juvenile is innocent and accepts the appeal, the order on sentence is automatically quashed. However in case the High Court maintains the conviction, the sentence is required to be suspended and the matter sent to the Juvenile Justice Board for passing an order on sentence as well as the order under Section 19 of the JJ Act." 11. However in case the High Court maintains the conviction, the sentence is required to be suspended and the matter sent to the Juvenile Justice Board for passing an order on sentence as well as the order under Section 19 of the JJ Act." 11. In paragraph 109 of the said judgment, the Delhi High Court has held that under Section 7A of the JJ Act of 2000, the High Court is required to give a finding on the correctness of the plea of juvenility and the High Court also has to examine the legality and validity of the conviction of the juvenile. 12. With great respect, we are in agreement with the Delhi High Court as regards its finding that the High Court is required to give a finding on the correctness of the plea of juvenility but with regard to the other provision that the High Court also has to examine the legality and validity of the conviction of the juvenile, we have our own reservation. A further provision in paragraph 109 of the Delhi High Court that in case the High Court maintains the conviction, the sentence is required to be suspended on the premises that the High Court in its appellate jurisdiction would also determine the correctness of the conviction of the juvenile. 13. The correctness of the conviction under Section 302 of the IPC by the trial court can be examined by the appellate court in exercise of its power under Section 374 of the Code of Criminal Procedure and we do not find any other provision of law providing jurisdiction to a High Court to examine the correctness of a conviction, of course, other than the revisional powers and other powers in a given case. But in the instant case, the appeal being against a conviction for an offence under Section 302 of IPC, the only provision under which the conviction can be examined would be Section 374 Code of Criminal Procedure, 1973. Therefore, if the correctness of the conviction of a juvenile has to be determined, it has to be done only under Section 374 of the code of criminal procedure. 14. Therefore, if the correctness of the conviction of a juvenile has to be determined, it has to be done only under Section 374 of the code of criminal procedure. 14. Section 1(4) of the JJ Act of 2000, inter alia provides as follows: "Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law." 15. The provisions of Section 1(4) begins with a non-obstante clause that notwithstanding anything contained in any other law which also includes the provisions of Code of Criminal Procedure, 1973, the provisions of the JJ Act of 2000 shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law. The expression "conflict with law under any such law" would have to be understood to be a conflict with law under any other law other than the JJ Act of 2000, and, therefore, notwithstanding the provisions of any other law, the provisions of only the JJ Act of 2000 shall thereafter apply to all such cases of a juvenile being in conflict with law. In other words, after a person has been determined to be a juvenile, the provisions of the Code of Criminal Procedure, 1973 shall no longer be applicable for determination of any of the aspect as regards the detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law. If the Code of Criminal Procedure is not longer applicable, an appeal under Section 374 would also not be maintainable and, therefore, the correctness of the conviction that may have been made under the Code of Criminal Procedure 1973 cannot further be determined. In the aforesaid situation, we are left only with the provision of Section 7A(2) of the JJ Act of 2000 which clearly provides that if a Court finds a person to be juvenile on the date of commission of offence, it shall forward the juvenile to the Board for passing an appropriate order. Accordingly, upon the applicant/appellant No. 3 having been found to be a juvenile the only option available before this Court is to forward the juvenile to the Board for passing appropriate orders, under the provisions of Section 7A(2) of the JJ Act of 2000. 16. Accordingly, upon the applicant/appellant No. 3 having been found to be a juvenile the only option available before this Court is to forward the juvenile to the Board for passing appropriate orders, under the provisions of Section 7A(2) of the JJ Act of 2000. 16. Accordingly, we provide that the sentence imposed against the applicant/appellant No. 3, Rafik Uddin Choudhury, in the Judgment and Order dated 29.12.2017 in Sessions Case No. 81/2009 shall have no effect any further. We further forward the applicant/appellant No. 3 to the Juvenile Board forthwith for passing appropriate orders. The photocopies of the records of this case also be forthwith transmitted to the Juvenile Justice Board, Hailakandi. 17. As the petitioner is in jail custody, the Superintendent of Jail, Hailakandi, where he is presently serving out his sentence shall do the needful to produce the applicant/appellant No. 3, Rafik Uddin Choudhury before the appropriate Juvenile Justice, Board and upon his production, the Board shall pass appropriate orders under the JJ Act of 2000 as may be required. The appropriate orders to be passed, amongst others, shall also include the required order under Section 19 of the JJ Act of 2000. 18. The enquiry report dated 05.03.2019 is kept as part of the record of IA(Crl.)5/2019. 19. Interlocutory application for suspension of sentence in respect of the applicant/appellant Nos. 1 and 2 shall be taken up subsequently.