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2021 DIGILAW 764 (GAU)

Nibaran Chakma v. State of Arunachal Pradesh

2021-12-03

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. D. Ghosh, learned counsel for the petitioner and Ms. L. Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh. 2. The petitioner-Nibaran Chakma was convicted under section 376(1) of IPC in Sessions Case No. 15(CLG)/2012 by the Sessions Judge, East Sessions Division, Tezu by the judgment dated 10.3.2016 and was sentenced to a rigorous imprisonment for a period of 10 years and a fine of Rs. 25,000, failing which, a further simple imprisonment of six months. As the petitioner was in custody during the trial period or earlier for a period of one year two months and six days, the said period was accordingly set off from the sentence imposed. Accordingly the petitioner has undergone the sentence from 10.3.2016 and is presently lodged in Tezu Distinct Jail. The Sessions Case No. 15(CLG)/2012 was pursuant to Diyun PS Case No. 06/2012 under section 366 A/376(2)(g)/376(1)/387, IPC. 3. The offence is alleged to have been committed on 4.6.2011 and 5.6.2011. In this writ petition, a claim is made by the petitioner that on 4.5.2011 and 5.6.2011 when the alleged offence had taken place, he was a juvenile. To substantiate the stand that the petitioner was a juvenile when the alleged offence had taken place, a birth certificate issued by the Registrar of Births and Deaths, Bordumsa, Changlahg district in Arunachal Pradesh dated 21.4.2003 is annexed as Anenxure-4, page 60 to the writ petition. 4. A reading of the Annexure-4 birth certificate goes to show that the date of birth of the petitioner is 30.3.1995. When the alleged offence had taken place on 4.6.2011 and 5.6.2011, if the date of birth of the petitioner is 30.3.1995, he would have been approximately 16 years 02 months and 25 days when the alleged offence had taken place. In other words, if the petitioner was 16 years 02 months and 25 days at the time when the alleged offence had taken place, he was a juvenile as defined under section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act, 2015’). 5. In other words, if the petitioner was 16 years 02 months and 25 days at the time when the alleged offence had taken place, he was a juvenile as defined under section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act, 2015’). 5. In order to ascertain the plea raised that the petitioner was a juvenile when the alleged offence had taken place on 4.6.2011 and 5.6.2011, by our earlier order dated 24.11.2021, we required the petitioner to be placed before the Juvenile Justice Board at Changlang to determine as to whether the petitioner was a juvenile as on 4.6.2011 and 5.6.2011 : In response thereof, the petitioner appeared before the Juvenile Justice Board at Changlang on 30.11.2021 and upon his appearance, the following order dated 30.11.2021 was passed, the relevant portion of which is extracted as below:- “Having considered the submission of the Registrar of Births and Deaths, Bordumsa, Changlang and the documents produced therein this Board finds the entry in the birth certificate issued to the applicants is true and correct and accordingly, the actual date of birth of the petitioner-Nibaran Chakma is determined to be 30.3.1995.” 6. From the order of the Juvenile Justice Board, Changlang dated 30.11.2021, it can conclusively be held that the date of birth of the petitioner-Nibaran Chakma is 30.3.1995 and, therefore, as on 4.6.2011 and 5.6.2011 when the alleged offence had taken place, he was a juvenile. 7. On the question whether a conviction and sentence of a person who was a juvenile at the time when the alleged offence had taken place is maintainable, is no longer a res integra and the issue has been settled by a plethora of decisions both by the Supreme Court as well as various High Courts including the Gauhati High Court. To refer the relevant proposition of law in this respect, we may refer to the pronouncement of the Supreme Court in Abuzar Hossain @ Gulam Hossain vs. State of West Bengal, (2012) 10 SCC 489 , wherein it had been held that the claim of juvenility can be raised at any stage irrespective of the delay in raising the same. To refer the relevant proposition of law in this respect, we may refer to the pronouncement of the Supreme Court in Abuzar Hossain @ Gulam Hossain vs. State of West Bengal, (2012) 10 SCC 489 , wherein it had been held that the claim of juvenility can be raised at any stage irrespective of the delay in raising the same. The Supreme Court was of the view that the plea of juvenility can be raised in an appeal even if such claim was not pressed earlier before the trial court and in fact it can also be raised even after disposal of the case. 8. The requirement of law in order to claim that the person concerned was a juvenile when the alleged offence had taken place is that prima facie material must be produced before the court to satisfy that an enquiry is necessary on the question of juvenility and for which the initial burden has to be discharged by the person claiming to be a juvenile. 9. We have taken note that a birth certificate issued by the Registrar of Births and Deaths is an appropriate document that finds mention in the section 94(2) of the Act of 2015. 10. In the instant case, the petitioner has produced and annexed a copy of the birth certificate dated 30.3.1995 issued by the Registrar of Births and Deaths, Bordumsa in the Changlang district. Accordingly, on a prima facie satisfaction being arrived at that sufficient material has been produced by the petitioner claiming that he was a juvenile when the alleged offence had taken place on 4.6.2011 and 5.6.2011, by an order dated 24.11.2021 in the present writ petition, we required the petitioner to appear before the Juvenile Justice Board, Changlang in the Changlang district. Accordingly, by the order of 30.11.2021 as indicated above, the Juvenile Justice Board, Changlang had arrived at its conclusion that the date of birth of the petitioner is 30.3.1995. Accordingly, we already came to a conclusion that on 4.6.2011 and 5.6.2011 when the alleged offence had taken place he was approximately 16 years 02 months and 25 days. 11. Accordingly, by the order of 30.11.2021 as indicated above, the Juvenile Justice Board, Changlang had arrived at its conclusion that the date of birth of the petitioner is 30.3.1995. Accordingly, we already came to a conclusion that on 4.6.2011 and 5.6.2011 when the alleged offence had taken place he was approximately 16 years 02 months and 25 days. 11. Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘Act of 2015’), inter alia, provides that in case a person alleged to have committed an offence claims before a court other than a Board that the person is or was a child on the date of commission of the offence, or if the court itself is of the opinion that a person was a child on the date of commission of the offence, the court shall make an enquiry, take evidence as may be necessary, but not on an affidavit, to determine the age of such person and shall record a finding on the matter stating the age of the person as nearly as may be. The proviso to section 9(2) further provides that such claim may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case and such claim shall be determined in accordance with the provisions contained in this Act and the Rules made thereunder; even if the person has ceased to be a child on or before the commencement of the Act. 12. Section 9(3) of the Act of 2015 provides that if the court finds that a person, who had committed an offence was a child on the date of commission of the offence, it shall forward the child to the Board for passing appropriate orders and the sentence if any passed by the court shall be deemed to have no effect. Section 9(3) of the Act of 2015 provides that if the court finds that a person, who had committed an offence was a child on the date of commission of the offence, it shall forward the child to the Board for passing appropriate orders and the sentence if any passed by the court shall be deemed to have no effect. Section9(2) and (3) of the Act of 2015 as extracted as below:- “(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the side court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be: Provided that such a claim may be raised before any court and it shall be recognized at any stage, even after final disposal of the case and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act. (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.” 13. In the instant case, as required under section 9(2) of the Act of 2015, an enquiry was made by requiring the petitioner to appear before the Juvenile Justice Board, Changlang in the Changlang District and accordingly as already concluded, the Board had passed an order dated 30.11.2021, after enquiry that the date of birth of the petitioner is 30.3.1995. In the instant case, as required under section 9(2) of the Act of 2015, an enquiry was made by requiring the petitioner to appear before the Juvenile Justice Board, Changlang in the Changlang District and accordingly as already concluded, the Board had passed an order dated 30.11.2021, after enquiry that the date of birth of the petitioner is 30.3.1995. As already concluded that if the date of birth of the petitioner is 30?3.1995 and the offence had taken place on 4.6.2011 and 5.6.2011, the petitioner was aged approximately 16 years 02 months and 25 days on the date when the offence had taken place and, therefore, he is a juvenile within the meaning of section 2(35) of the Act of 2015. Accordingly, by following the procedure provided in section 9(3) of the Act of 2015, we direct that the petitioner be placed before the Juvenile Justice Board, Changlang in the Changlang district for passing appropriate order on the matter as regards the involvement of the petitioner, who is a child in conflict with law. 14. Accordingly, as required under section 9(3) of the Act of 2015, the judgment of conviction dated 10.3.2016 in Sessions Case No. 15(CLG)/2012 of the learned Sessions Judge, East Sesions Division, Tezu convicting the petitioner under section 376(1) of IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000 and a further simple imprisonment for 6 months in default thereof is declared to have no effect under the law. 15. The petitioner be forthwith presented before the Juvenile Justice Board, Changlang in the Changlang District. 16. The writ petition is allowed as indicated above.