B.H. Mubarak vs State

Budihal, R.B., J.—This revision petition is tiled challenging the judgment and order of conviction dated 4.12.2009 passed by the Civil Judge (Sr.Dn.) and JMFC., Chintamani in Criminal Case No. 58/2008.

By the said judgment and order, accused Nos. 1 and 2 were convicted for the offences under Section 419 of IPC and Section 25 r/w Section 118 of the Karnataka Education Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- each. Being aggrieved by the said judgment and order of conviction, the revision petitioners herein preferred appeal before the appellate Court in Crl. A.No.45/2009. The Ad hoc Sessions Judge, FTC-II, Chintamani, after considering the merits in the said appeal, passed the judgment on 29.5.2010 dismissing the appeal and confirming the judgment and order of conviction passed by the trial Court. Being aggrieved by the same, the revision petitioners-accused have preferred the present revision petition before this Court, on the grounds as mentioned in the revision petition.

Heard the arguments of learned counsel appearing for revision petitioners-accused and also the learned High Court Government Pleader for the respondent-State.

Learned counsel for the revision petitioners during the course of arguments submitted that the revision petitioners also filed I.A.No.1/2015 raising additional grounds. As on the date of the alleged incident, petitioner No. 1 herein was the juvenile and he had not completed the age of 18 years, but however, either before the trial Court or before the first appellate Court this point was not raised by the revision petitioners-accused or by their counsel. Since petitioner No. 1 is a juvenile, the whole proceedings are vitiated. He has also produced the original SSLC marks card of petitioner No. 1 wherein the date of birth of petitioner No. 1 is mentioned as 12.8.1991 and a copy of the said certificate is produced along with the application. Hence, learned counsel submitted that in view of these facts, the revision petition may be allowed and the matter may be remanded to the trial Court.

Per-contra, learned High Court Government Pleader also submitted that as the age of revision petitioner No. 1 was mentioned as 18 years in the charge-sheet and the police papers when the investigation material was produced before the Court, the Court proceeded with the matter. He has also submitted that if really petitioner No. 1 was juvenile as on the date of incident i.e., on 3.4.2008, the matter in respect of petitioner No. 1 shall have to be placed before the Juvenile Justice Board to consider his case and the trial Court cannot conduct the trial in respect of petitioner No. 1 herein. Accordingly, he has submitted that in view of these new facts, the matter be remanded to the trial Court.

I have perused the grounds urged in the revision petition, so also, the judgment and order of conviction passed by the trial Court as well as the appellate Court.

The case of the prosecution before the trial Court as per the allegations in the complaint is that on 3.4.2008 at 12.00 p.m. in the SSLC examination conducted for English at Centre No. 06-CA and room No. 1 of Morarji Desai Residential School, Tirumalapura village, Gadivarahalli Majara, Chillakalanerpu village, Chintamani Taluk, accused No. 1 was writing the examination instead of accused No. 2 with the hall ticket No. 20080728552 and thereby, he cheated the examination board. With this allegation, respondent-police have filed the charge-sheet against accused Nos. 1 and 2. Both the Courts, after holding enquiry, have come to the conclusion that the prosecution has proved the offences.

Before coming to other merits of the case, it is seen that in the application filed raising additional grounds it is stated that petitioner No. 1 was born on 12.8.1991 and the alleged incident has taken place on 3.4.2008 and as on the alleged date of incident, the age of petitioner No. 1 was 16 years 7 months and 21 days. The original SSLC marks card of petitioner No. 1 is also produced today for verification of birth date of petitioner No. 1 wherein also, his birth date is mentioned as 12.8.1991.

In this regard, I have also perused the decision of the Hon''ble Apex Court reported in AIR 2015 SC 1770 in the case of Abdul Razzaq v. State of U.P. wherein their Lordships have held as under:

"Criminal - Juvenile - Benefit of provision - Retrospective effect - Sections 7-A and 20 of Juvenile Justice (Care and Protection of Children) Act, 2000, Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 302 of Indian Penal Code, 1860 -Present application filed seeking release of Petitioner who had been found to be juvenile - Whether law having changed with retrospective effect, Petitioner was entitled to benefit of provisions of Act - Held, person below 18 years at time of incident could claim benefit of Act any time - Provisions of Act and Rules clearly show that even if person was not entitled to benefit of juvenilities prior to amendment, such benefit is available to person undergoing sentence if he was below 18 years on date of occurrence - Such relief could be claimed even if matter had been finally decided, as in present case -Though conviction was left undisturbed, sentence was set aside - Application allowed.

As per the principle enunciated in the said decision, the contention raised in this petition can also be raised before this Court. Perusing the materials on record, it is necessary that the trial court shall consider these aspects, if necessary by recording evidence to that extent and if really, petitioner No. 1 is a juvenile, his case is to be ordered to be placed before the Juvenile Justice Board. The trial Court shall ascertain, based on the materials placed on record, the date of birth of petitioner No. 1 herein. The case of petitioner No. 2 also to be remanded to the trial Court. The trial Court shall take decision in respect of petitioner No. 2, after considering the materials afresh. If necessary, an opportunity also to be given to petitioner No. 2 to produce additional evidence, if any."

With the above observations, this revision petition is allowed. The judgment and order of conviction passed by both the Courts below is set aside. Matter is remanded to the trial Court.

I.A.No. 1/2015 filed for raising additional grounds is also allowed. The original SSLC marks card produced in respect of petitioner No. 1 is returned back to the counsel for the petitioners. If necessary, he can produce the same before the concerned Court.