Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 651 (JK)

Sameer Nazir v. State of J&K

2022-11-22

MOHD.AKRAM CHOWDHARY

body2022
JUDGEMENT/ORDER : 1. Appellant having been convicted for the commission of offence punishable under section 376 RPC vide judgment dated 14.05.2013 and sentenced vide order dated 03.06.2013 to rigorous imprisonment for aterm of 10 years and also a fine of Rs. 50,000/- payable to the victim by the Court of learned Principal Sessions Judge Ganderbal (hereinafter called as 'Trial Court' for short) has challenged his conviction through the medium of this Criminal Appeal. 2. The appellant-convict had been charge-sheeted for the offence punishable under section 376 RPC by the Trial court vide order dated 28.12.2004, with the accusation that on 23.09.2004,the appellant-convict, at about 12 P.M., had forcibly raped PW-2 at Khurhama Ganderbal, who, however, denied the charge pleading innocence and the prosecution was directed to lead evidence. 3. The prosecution, in order to bring home the charge against the appellant-accused, examined 10 out of 12 cited prosecution witnesses and on conclusion of trial the appellant was convicted and sentenced vide impugned judgment/order. 4. During the pendency of this appeal, the appellant filed an application seeking bail, claiming the benefit under section 13 of The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act 2013 (for short 'Act of 2013') while fairly conceding that no such plea was raised before the trial court. 5. This Court vide order dated 18.03.2014, while admitting the appellant-convict to interim bail, also directed learned Registrar Judicial of this Wing of the High Court to hold an enquiry and to take such evidence as may be necessary (but not on affidavit) to determine the age of the convict Sameer Nazir @ Ashiq Hussain S/o Nazir Ahmad Ahanger R/o Khurhama Ganderbal, as nearly as may be, on the date of the alleged commission of offence i.e. 23.09.2004. 6. Pursuant to the aforesaid order, learned Registrar Judicial filed the report dated 29.08.2014 after conducing thorough enquiry, and came to the conclusion that on the fateful day i.e., 23.09.2004, the appellant convict was 16 years 06 months and 08 days of age, having regard to the date of birth as 15.03.1988, as maintained by the Board of School Education and attaching the presumption of genuineness to it. This report has been accepted by this Court vide order dated 24.10.2019 and the appellant-convict was declared as juvenile. 7. Heard learned counsel for the parties, perused the material available on record and considered. 8. This report has been accepted by this Court vide order dated 24.10.2019 and the appellant-convict was declared as juvenile. 7. Heard learned counsel for the parties, perused the material available on record and considered. 8. It is clear that the instant case has to be dealt with in accordance with the provisions contained in the Act of 2013 and consequently, the age of juvenility with reference to this case has to be taken as 18 years and not 16 years, which was the age of juvenility under the earlier Act of 1997, that was in force at the time of commission of the alleged occurrence. In this regard, I am fortified with the judgment of the Hon'ble Supreme Court rendered in a case titled Hari Ram v. State of Rajasthan & Anr. reported as (2009) 13 SCC 211 , wherein the Supreme Court, after taking into consideration the effect of Section 20 of the Juvenile Justice Act, 2001 which is in para materia with Section 8 of the Act of 2013, came to the conclusion that the provisions of the Juvenile Justice Act, 2000 have been given retrospective effect and, accordingly, the Court held that a juvenile, who had not completed 18 years on the date of commission of the offence was also entitled to the benefits of the Act of 2000, as the provisions of Section 2(k) of the said Act had always been in existence even during the operation of the 1986 Act. As a corollary to the aforesaid ratio laid down by the Supreme Court, it can be safely held that a juvenile, who had not completed the age of 18 years on the date of commission of offence, was also entitled to the benefit of the Act of 2013, as if the provisions of Section 2(n) of the Act of 2013 had always been in existence even during the operation of the Act of 1997. 9. 9. In view of the law on the subject, it is clear that even if on the date of the occurrence, the provisions of the Act of 1997 were in operation, still then, because the trial of the case was pending at the time of coming into force of the Act of 2013, the age of juvenility of the appellant had to be determined with reference to the definition of juvenile as contained in Section 2(n) of the Act of 2013, meaning thereby that if the appellant was found to be less than 18 years of age at the time of alleged occurrence, the benefit of juvenility had to be extended to him. 10. In terms of the report dated 29.08.2014 of the Registrar Judicial age of the appellant-convict therein on the date of occurrence was 16 years 06 months and 08 days i.e., less than 18 years. While coming to the aforesaid conclusion, the Registrar Judicial has relied upon the certificate issued by the Board of School Education, according to which his date of birth is 15.03.1988. Thus, the order passed by the learned trial court is contrary to the legal position and is not sustainable in law. 11. Having held that the appellant-convict was a juvenile at the time of the occurrence, the proceedings against him had to be conducted in accordance with the provisions contained in the Act of 2013 but he has been tried under the procedure provided for adult accused. The trial of the appellant-convict before the learned Sessions Judge Ganderbal, is, therefore, without jurisdiction and is vitiated. The order of conviction and sentence passed against the appellant-convict by the trial court, being without jurisdiction, cannot be sustained in law. 12. The Supreme Court has, in a similar situation, in case Raju v. State of Punjab, reported as 2019 (4) SCALE 398 , while allowing the appeal against the judgment of conviction and sentence passed against a juvenile, observed as under:- "9. 12. The Supreme Court has, in a similar situation, in case Raju v. State of Punjab, reported as 2019 (4) SCALE 398 , while allowing the appeal against the judgment of conviction and sentence passed against a juvenile, observed as under:- "9. It is by now well settled, as was held in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211 , that in light of Sections 2(k), 2(I), 7A read with Section 20 of the 2000 Act 8 as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act (also see Mohan Mali v. State of Madhya Pradesh, (2010) 6 SCC 669 ; Daya Nand v. State of Haryana, (2011) 2 SCC 224 ; Dharambir v. State (NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v. State of Uttar Pradesh, (2013) 11 SCC 193 ). It is equally well settled that the claim of juvenility can be raised at any stage before any Court by an accused, including this Court, even after the final disposal of a case, in terms of Section 7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi, (supra), Abuzar Hossain v. State of West Bengal, (2012) 10 SCC 489 ; Jitendra Singh @ Babboo Singh v. State of UP, (supra); [6]Ab. Razzaq v. State of Uttar Pradesh, (2015) 15 SCC 637 ). 10. In light of the above legal position, it is evident that the Appellant would be entitled to the benefit of the 2000 Act if his age is determined to be below 18 years on the date of commission of the offence. Moreover, it would be irrelevant that the plea of juvenility was not raised before the Trial Court, in light of Section 7A. As per the report of the inquiry conducted by the Registrar (Judicial) of this Court, in this case, the Appellant was below 18 years of age on the date of commission of the offence. The only question before us that needs to be determined is whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant. 25. The only question before us that needs to be determined is whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant. 25. Criminal Appeal hereby stands allowed and the order of the High Court affirming the conviction and sentence of the Appellant under section 376(2)(g) of the IPC is set aside. Seeing that the Appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, and since the Appellant has already been enlarged on bail by virtue of the order of the Court dated 09.05.2014, he need not be taken into custody. His bail bonds stand discharged and all proceedings against him, so far as they relate to the present case, stand terminated". 13. The judgment rendered in the aforesaid case by the Supreme Court is squarely applicable to the facts of the instant case, inasmuch as the trial of the appellant-convict has been conducted by a court which had no jurisdiction to do so. Therefore, without going into merits of the appeal, the same deserves to be allowed. 14. The appellant-convict is stated to have remained in custody for a total period of 494 days including 207 days in custody during investigation and trial. The maximum period for which a juvenile can be sent to a special home, is not more than three years and the appellant-convict had already undergone substantial part of three years in custody. 15. For the foregoing reasons, this Court is of the opinion that the appellant-convict was a juvenile on the date of commission of the offence and he has already undergone a considerable jail sentence, partly as an under trial and partly as a convict, as such, the appeal filed by him deserves to be allowed and the same is, accordingly, allowed without going into merits of the case and without passing any consequential order of holding of fresh trial against the appellant-convict in accordance with the provisions of the J&K Juvenile Justice (Care and Protection of Children) Act, 2013, or subsequent legislation that has come into operation. Further proceedings are thus terminated. Bail/personal bonds of the appellant are discharged. 16. Further proceedings are thus terminated. Bail/personal bonds of the appellant are discharged. 16. Record of the trial court be sent back alongwith a copy of this judgment. 17. Disposed of, accordingly.