In Re: State of Kerala

L. Manoharan, J.—This reference is by the Additional Sessions Judge, Palakkad. Fourth accused in Sessions Case No. 1 of 1989 moved Crl. M.P. No. 583 of 1991 stating that he did not attain the age of 16 as on 23rd December 1987, the date of occurrence. Learned Sessions Judge states in his order that he (4th accused) was a juvenile and hence as per Section 24 of the Juvenile Justice Act, 1986 (Act 53 of 1986) (for short ''the Act'') since no juvenile can be charged with or tried for arty offence together with a person who is not a juvenile, fourth accused cannot be tried along with the other accused persons and that the order of committal passed by the Judicial Magistrate of First Class, Mannarghat is not in accordance with law. Consequently, the same is liable to be quashed.

When the matter came up for hearing before a learned Single Judge, His Lordship stating that the decision in State of Kerala v. Sophiya Rose 1988 (2) KLT 585 is doubted by a learned Judge referred the matter to the Division Bench; that is how this matter came up before us.

In Sophiya Rose''s case 1988 (2) KLT 585 it was held that the crucial date in order to decide whether the accused is to be tried by the Children''s Court or not is the date on Which the offence was committed and not the date oft which the "accused is placed for trial.

The first question, therefore, for consideration is whether the age of an accused as on the date of occurrence or as on the date when he appears or is brought before Court, is age for deciding whether he is a juvenile offender. This particular question primarily has to be answered with reference to the provisions in the Act. Delinquent Juvenile'' is defined u/s 2(e) of the Act to mean a juvenile who has been found to, have committed an offence and Sub-section (h) of Section 2 of the Act defines "Juvenile" to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. The definition does not as such state as to whether the age of the juvenile should be determined with reference to the date of occurrence or as on the date when he appears or is brought before Court.

Section 22 of the Act which by the wording has over-riding effect enjoins, no delinquent juvenile shall be sentenced to death or imprisonment, or committed to prison in default'' of payment of fine or in default of furnishing security. Section 24 states that notwithstanding Section 223 of Code of Criminal Procedure or any other law for the time being in force no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. And a juvenile delinquent is entitled to be dealt with only under the provisions of the Act. When does the offender acquire the said immunity arid right? The answer tp the said question would solve the problem whether it is age as on the date of occurrence or his age on the date when he appears or brought to Court that is material for deciding whether he is a juvenile.

An offence consists of the ''act'' mens rea and the harmful social consequence of the act which makes it culpable. Thus culpability arises on the commission of the ''act'' with the necessary mens rea. And such ''act'' since is committed on a particular date the culpability too would arise on that particular date. Thus the liability for that particular act would arise on its commission on a particular "date. As a necessary corollary liability for punishment for the offence also would arise on the date when the offence was committed. Naturally, therefore, the immunity, if any, from being sentenced, in the absence of anything to the contrary, also has to be judged with reference to the date when the offence is committed.

Since it is his status as a juvenile delinquent that clothes him "with the immunity and privileges under the Act, he need have that status only at the commission of the office. If he has the immunity and privileges under the Act at the incurring of the liability for punishment, viz., on the date of the commission of the offence, that will not be taken away on his ceasing to be a juvenile oft his crossing the age of 16 pending inquiry. This is provided for the Sections 3 and 56 of the Act.

A reading of Section 3 of the Act also would show that the relevant age is the age as on the date of commission of the offence. Section 3 of the Act reads:

Continuation of inquiry in respect of juvenile who has ceased to be juvenile.- Where an inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in this Act qt in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile.

(Emphasis supplied)

As per Section 3 of the Act, when an inquiry is initiated against a juvenile and he ceases to be a juvenile during the course of such inquiry, the inquiry can be continued as if such person had continued to be a juvenile. Thus, during the course of inquiry in spite of his ceasing to he a juvenile on orossing the age of 16; by a legal fiction he is treated as a juvenile in spite of the fact that he ceased to be a juvenile on crossing the age of 16. In East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 A.C. 109 Lord Asquith said:

If you are bidden to treat an imaginary, state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it....The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

In the decision in The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, the same principle is laid down'' where it is stated:

When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.

Thus, Section 3 of the Act mandates that the inquiry has to be continued in spite of the fact that the accused, who was juvenile on the date of occurrence ceased to be a juvenile during the course of the inquiry treating him as a juvenile. This also brings out the legislative intent that it is enough that he need be a juvenile on the date occurrence, if he has not attained the age of sixteen years at the occurrence he will be a "delinquent juvenile", within the meaning of the Act.

In the decision in Bhoop Ram Vs. State of U.P., the accused who has below 16 years of age on the date of offence was convicted along with five Ors. by the Sessions Judge under Sections 148, 302, 323 and 324 read with Section 149 I.P.C. and was sentenced to imprisonment for life besides concurrent sentence for lesser terms of imprisonment. It was contended that the said accused being a "Child" within the meaning of Section 2(4) of the U.P. Children Act, 1195, he should have been sent to an approved school for detention till he attained the age of 18 years instead, of being sentenced to undergo imprisonment in jail. By the time when the matter reached before the Supreme Court, the accused had crossed the maximum age of detention in an approved school viz. 18 years. The Supreme Court, held:

On a consideration of the matter, we are of the opinion that the Appellant could not have completed 16 years of age on 3rd October 1975 when the occurrence took place and as such he ought to have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 and dealt with u/s 29 of the Act.

Since the fourth accused had crossed the maximum age of 18 for detention in an approved school while sustaining the conviction against him quashed the sentence and directed his release forthwith. The said decision would show that the age of the child as on the date of occurrence is the age to be reckoned for judging whether he is a ''child''. In the decision in Gopinath Ghosh Vs. The State of West Bengal, a minor accused was tried along with other accused persons for committing, murder and was sentenced to imprisonment for life. The plea that he was a minor was raised for the first time in appeal before the Supreme Court. The Supreme Court referred the specific issue as to whether he was a minor to the, trial Court and the answer was returned in affirmative. The Supreme Court allowed the appeal and set aside the conviction u/s 302 I.P.C. and sentence of imprisonment for life, and the case was remitted to the Magistrate for disposal in accordance with law.

There is similar provision u/s 6 of the Probation of offenders Act, 1958 which enjoins that when any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him u/s 3 or Section 4. There also, the question as to whether the age at the date of occurrence or the age when he appears or brought before Court is the relevant age came up for consideration in the decision in Musakhan and Others Vs. State of Maharashtra, . In that case, the 4th accused was 20 years in 1968 when the occurrence took place, the 7th accused was younger to the 4th accused and the 9th accused was also only 20 years at the time of occurrence. The Supreme Court allowed the appeal filed by them, their convictions and sentences were set aside and they Were directed to be released on their executing a bond with two sureties of Rs. 500 each for a period of one year in order to keep the peace and be of good behavior with a direction that all of them would report to the nearest Probation Officer in their range. The decision shows that the age on the date of occurrence is the age for the purpose of Section 6 of the Probation of Offenders Act, 1958.

In this connection it is necessary to refer to Section 27 of the Code of Criminal Procedure (for short ''the Code''). Section 27 of the Code reads:

Jurisdiction in the case of juveniles.-Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court, is under the age of sixteen years may be tried by the ''Court of a Chief Judicial Magistrate or by any Court specially empowered under the Children Act, 1960 (60 of 1960),'' or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

Whether Section 27 of the Code governs this particular aspect is to be judged with due regard to Section 5 of the Code. Section 5 of the Code reads:

Saving.-Nothing contained in this code shall in the absence of a specific provision to the contrary; affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special"form or procedure prescribed, by any other law for the time being in force.

(emphasis supplied)

As per Section 5 of the Code the provisions in the Code will, not affect any special or local law or any special jurisdiction or power conferred of any special form of procedure prescribed by such law for the time being in force. The question is whether Section 27 of the Code is a "specific provision" within the meaning of Section 5 of the Code. Section 27 of the Code in the context would only be an enabling provision which does not express any contrary intention. In Raghbir Vs. State of Haryana, the Appellant along with three Ors. was convicted of the offence of murdr and was sentenced to imprisonment for life. It was contended that the Appellant was a child within the meaning of Section 2(d) of Haryana Children Act, 1974, and therefore he claimed that her is entitled to be dealt with under the provisions of the "Haryana Children Act. But the same was contested on the basis of Section 27 of the Code. Reliance was also made on a Full Bench decision of the Madhya Pradesh High Court in Devi Singh and Others Vs. The State of Madhya Pradesh, where the majority held, the juvenile Courts Constituted under the Madhya Pradesh Bal Adhiniyam have exclusive jurisdiction to try a delinquent child For all offences except those punishable with death or imprisonment for life, while the minority view of Verma, J. (as his Lordship then was) was to the effect that the provision, in Section 27 of the Code is merely an enabling provision which does not express any contrary intention to undo the saving provided in Section 5 of the Code. The minority view was accepted by the Supreme Court and the Supreme Court held:

In our opinion, Section 27 is not ''a specific provision to the contrary'', within the meaning of Section 5 of the Act; the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as Section 27 does not contain any expression to the effect ''notwithstanding anything contained in any Children Act passed by any State legislature''. Parliament certainly was not unaware of the existence of the Haryana Children Act coming into force a month earlier or the Central Children Act coming into force nearly fourteen years earlier. What Section 27 contemplates is that a child under the age of sixteen years may be tried by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, 1960.

Once it is seen that Section 27 of the Code is only an enabling provision and the same is not a specific provision to the contrary within the meaning of Section 5 of the Code; it is clear that, whether a person is a juvenile has to be judged with due regard to the provisions in the Act. This is in tune with the very purpose of the Statute. Article 39(f) of the Constitution enjoins, it is the duty of the State that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity. There can be no doubt that atmosphere of prisons certainly would have an adverse effect in bringing up the personality of a child. The Act also is aimed at to secure conditions whereby the personality of delinquent children develops and they blossom as good citizens.

In the decision in Sheela Barse (II) and Others Vs. Union of India (UOI) and Others, the Supreme Court observed:

If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children provide'' that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt" that incarceration in jail would have the effect of dwarfing the ''development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.

When the provisions of the Act is understood with due regard to the object and intention of the legislature, it is clear that the age of the child as on the date of occurrence is the age to be reckoned for deciding whether he is a juvenile.

The question whether the age of the accused at the time of the commission of the offence is the relevant age under the West Bengal Children''s Act, 1959 was considered by "a Full Bench of the Calcutta High Court in Dilip Saha v. State AIR 1978 Gal. 529. The Court held that the age of the accused at the time of the commission of the offence is the relevant age for attracting the provision of the West Bengal Children''s Act, 1959 and not his age at the time of trial.

In Krishna Bhagwan Vs. State of Bihar, a Full Bench of the Patna High Court considered the question, whether an offender who was and juvenile at the time of commission of the offence and who ceased to be a juvenile at the commencement of the trial is entitled to be dealt with under the Bihar Children Act. The Full Bench held:

Taking into consideration the aim and intention of the Juvenile Justice Act, the application of its provisions should not be denied to an offender where by the time the trial commences or concludes the accused ceases to be a juvenile although when the offence was committed he was a juvenile within the meaning of the Act.

These decisions also support the view that if an offender was a juvenile when the offence was committed, he is entitled to be dealt with under the Act.

Thus the view expressed in State of Kerala v. Sophiya Rose 1988 (2) KLT 585 that the crucial date to decide whether the accused is to be tried by the Children''s Court or not is the date on which the offence was committed is the correct position of law.

The order of the Sessions judge states that the occurrence was on 23rd December 1987. The Act came into force On 2nd October 1987; that means the occurrence was after the commencement of the Act. Sessions Judge also states that as per the certificate produced by the 4th accused, he is a juvenile. Therefore, in view of the decision in State of Kerala v. Ariffa 1985 KLT 370 (DB) the order of committal passed by the learned Magistrate in relation to the 4th accused who is a juvenile is quashed. The Sessions Judge will send back the case as against the 4th accused to the Judicial Magistrate of First Class, Mannarghat for appropriate steps in accordance with provisions of the Act. The Criminal Reference is answered accordingly.

Before parting with the case, we place on record our gratitide and appreciation for the able and learned assistance given by Sri M.N. Sukumaran Nair, Senior Advocate.