Kashmira Singh vs State of Punjab

K.S. Kumaran, J.

First Information Report No. 39 dated 2.7.1993 under Sections 302, 324 and 34 of the Indian Penal Code was registered at Police Station Division No. 1, Jalandhar, on the statement of Nagina Lal wherein he had stated among other things that on 2.7.1993 at about 7 a.m. Channan Singh, his sonKashmira Singh (petitionerherein) and Surjit Kaur entered his house and proclaimed that they would teach a lesson for purchasing the house of Saroj Kumari, and Channan Singh gave a blow with his dagger to complainant Nagina Lal. The complainant has also stated that in his defence he gave blow with a dang on the head on Surjit Kaur. According to the complainant, Channan Singh and petitionerKashimra Singh went running towards Amritsar Transport Company, where the complainant''s son Mukteshwar was working, quarreled with Mukteshwar and made him fall down. The complainant has further stated that Channan Singh gave three blows with his dagger in the abdomen of Mukteshwar, which ultimately resulted in the death of Mukteshwar.

A charge under Section 302 read with Section 34 of the Indian Penal Code has been framed against the petitionerKashimra Singh, who is facing trial before the Additional Sessions Judge Jalandhar.

According to the petitionerKashmira Singh, he was born on 16.7.1978 and was, therefore, below 16 years on the date of the alleged occurrence i.e. 2.7.1993. The petitioner claims that he is, therefore, a Juvenile as defined under Section 2(h) of the Juvenile Justice Act, 1986 (hereinafter referred to as the Act). The petitioner further contends that in view of the provisions contained in Section 24 of the Act, the petitioner cannot be tried jointly with the other accused and there should be a separate trial in respect of the Juvenile.

The learned Additional Sessions Judge, Jalandhar, passed an order on 15.7.1997 as follows :

"State versus Kashmira Singh.

Present : APP for the State.

Accused on bail except Chanan Singh, who is in custody.

Heard. The perusal of the record shows that similar point was raised before my learned predecessor in the year 1994 and he vide order dated 24.1.1994 held that the accused to be above 16 years of age on the basis of record produced before him at that time. I doubt if the second application for the same purpose is maintainable. Hence declined. For statement of accused u/s 313 Cr.P.C. to come up on 28.7.1997."

The petitionerKashimra Singh has, therefore, filed this revision challenging the order dated 15.7.1997 passed by the learned Additional Sessions Judge, Jalandhar. The petitioner urges that there is no such document on the file of the trial Court and the trial Court ignored the provisions of the Act for determining the age of the accused, who appeared to be a Juvenile.

I have heard the counsel for both the sides and perused the records of this case.

Section 2(h) of the Act defines a Juvenile as follows :

"Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years."

Section 5 of the Act provides for the constitution of one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent juveniles under this Act.

Section 20 of the Act provides that where a Juvenile who is charged with having committed offence appears or is produced before a Juvenile Court, the Juvenile Court shall hold the inquiry in accordance with Section 39 and may subject to the provisions of this Act, make such order in relation to the Juvenile as it deems fit."

Subsection (1) of Section 24 of the Act provides that notwithstanding anything contained in section 223 of the Code of Criminal Procedure 1973 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. Sub section (2) of Section 24 of the Act provides that if a Juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure 1973 or any other law for the time being in force, such Juvenile and any person who is not a Juvenile would, but for the prohibition contained in subsection (1) have been charged and tried together, the Court taking cognizance of that offence shall direct separate trials of the Juvenile and the other person.

Subsection (1) of Section 32 of the Act provides as follows :

"Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly may be."

Section 2(d) of the Act defines competent authority as follows :

"Competent authority" means, in relation to neglected juveniles, a Board and, in relation to delinquent juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under subsection (2) of Section 7 to exercise the powers conferred on a Board or Juvenile Court."

Before I take up consideration of the arguments advanced in this case, it will also be necessary to take note of Section 38 of the Act which provides as follows :

"The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Sessions has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit :

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."

It is also necessary to refer to the decision of the Hon''ble Supreme Court, cited by the learned counsel for the petitioner, in Bhola Bhagat v. State of Bihar, 1997 IV SVLR (Cr.) 175. What happened in that case was three of the accused namely appellants 2, 3 and 10 before the Hon''ble Supreme Court who had been convicted claimed that they were children as defined in the Bihar Children Act, 1970 on the date of the occurrence and that their trial along with the adult accused by the Criminal Court was not in accordance with law. The High Court of Bihar relied upon the judgment of the Hon''ble Supreme Court in State of Haryana v. Balwant Singh, 1993 Supp.(1) SCC 409 wherein it was observed that if the plea that the accused was a child had not been raised before the Committal Court as well as before the trial Court, the High Court could not merely on the basis of the age recorded in the statement under Section 313 Cr.P.C. conclude that the respondent was a child within the meaning of the definition of the expression "child" under the Act on the date of the occurrence in the absence of any other material to support that conclusion. By relying upon this observation, the High Court observed that except for the age given by the appellant and the estimate of the Court at the time of their examination under Section 313 Cr.P.C. there was no material in support of the appellant''s claim that they were below 18 years of age.

The Hon''ble Supreme Court held that the approach of the High Court in dealing with the question of age of the appellants and the denial of the benefits to them of the provisions of both the Acts was not proper and that technicalities were allowed to defeat the benefits of a sociallyoriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. The Hon''ble Supreme Court held that if the High Court had doubts about the correctness of their age, as given by the appellants and also as estimated by the trial Court, it ought to have ordered an enquiry to determine their ages and should not have brushed aside their plea without such an enquiry. The Hon''ble Supreme Court also held that Section 32 of the Juvenile Justice Act, 1986 casts an obligation on the Court to make due enquiry as to the age of the accused and, if necessary, by taking evidence itself and record a finding whether a person is juvenile or not.

The Hon''ble Supreme Court also referred to another decision of the Supreme Court in Gopinath Ghosh v. State of West Bengal, 1984 Supp. SCC 228. In Gopinath Ghosh''s case, it was only for the first time in the Supreme Court an argument was raised on behalf of the appellant that on the date of the offence, he was aged below 18 years and, therefore, a child within the meaning of the expression "child" as contained in the West Bengal Children Act, 1959 and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment after holding trial. The Hon''ble Supreme Court remitted the issue to the learned Sessions Judge who after hearing both the sides, submitted his finding that the appellantGopinath Ghosh was aged 1617 years on the date of the offence. The Supreme Court after referring to the various provisions of the Act, opined that Section 24 of the Act takes away the jurisdiction of the Court to impose a sentence of imprisonment unless the case falls under the proviso and that Section 25 of the Act forbids any trial of a juvenile delinquent and that only an enquiry can be held in his case in accordance with the provisions of the Code of Criminal Procedure, for the trial of a summons case. In spite of the fact that this issue was raised for the first time before the Supreme Court. The Supreme Court held as follows :

"We consider it proper not to allow the technical condition that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it."

The Hon''ble Supreme Court also took note of a Full Bench decision of the Patna High Court in Krishan Bhagwan v. State of Bihar, AIR 1989 Patna 217 which had considered the question relating to the determination of the age of the accused and the belated raising of that plea and opined that though the normal raising of that plea unless it goes to the very root of the jurisdiction, should not be allowed to be taken at the appellate stage when it requires investigation into a question of facts but a plea that accused in question was a "child" within the meaning of the Act can be entertained at the appellate stage also and should not be overlooked on technical grounds. After noticing the provisions of the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986, the Full Bench of the Patna High Court opined, taking into consideration the aim and intention of the two Acts, that the application of the provisions of the Acts, should not be denied to an offence where by the time the trial commenced or concluded, the accused had ceased to be a juvenile. The Patna High Court had also laid down the procedure to be followed when a plea is raised to the effect that the accused on the date of offence was a child and held that inquiry into that aspect should be conducted and on the basis of the evidence led at the enquiry, the Court should record a finding whether or not on the date of commission of the offence, the accused was a `child'' within the meaning of the Act.

The Hon''ble Supreme Court distinguished the decision in State of Haryana case (supra) on the ground that the plea had not at all been raised before the Committal Court and the Sessions Court.

Ultimately the Hon''ble Supreme Court directed that whenever such a plea is raised before the courts and when there is a reasonable doubt about the correctness of the plea, the court must as a rule, conduct an enquiry by giving an opportunity to all the parties to establish their respective claims and return and then deal with the case in the manner provided by law.

Therefore, it is clear from the decision of the Hon''ble Supreme Court that a duty is cast on the courts to conduct a proper enquiry by giving the parties an opportunity to establish their respective claims before a decision is made as to whether a particular accused is juvenile or not.

Bearing in mind the provisions of the Juvenile Justice Act reproduced above, and also the decision of the Hon''ble Supreme Court, I will not analyse the arguments advanced in this case by the parties. The petitioner contends that he was born on 16.7.1978 and has also produced with this revision petition a copy of the birth certificate issued by the Municipal Corporation, Jalandhar, wherein the date of birth has been shown to be 16.7.1978. The alleged offence was committed on 2.7.1993 and, therefore, the petitioner contends that he was below 16 years of age on that date, and in view of the provisions contained in Section 24, the petitioner should not have been charged and tried with the other accused. But the contention of the respondents is that as early as 24.1.1994, a similar plea was raised on behalf of the petitioner and the learned Additional Sessions Judge had negatived the claim of the petitioner. I have also called for the original records of the learned Additional Sessions Judge and find the following zimni orders :

Present : Add. P.P. for the State.

Accused as before.

Accused Kashmir Singh is stated to be minor. His age is to be determined. Records of the Sain Dass School has been summoned in the bail petition. To come up with the same on 11.1.1994 PWs Satnam Singh, Amarjit, Nagina Lal, Kulwinder Lal, Sanjiv Kumar present. They be bound down for the date fixed.

Date 24.12.1993

Sd/

A.S.J.

Present : Addl. P.P. for the State. Accused as before.

No PW is present. Record of the school not received from where age of accused Kashmir Singh is to be determined and in the absence of such record, evidence cannot be recorded. Hence adjourned to 24.1.1994 for prosecution evidence.

Date 11.1.1994

Sd/

A.S.J.

Present : Addl. P.P. for the State.

Accused as before.

Accused Kashmir Singh is admittedly a student of Sain Das A.S. Senior Secondary School, Jalandhar. I had sent for the record of the school regarding admission, previous school leaving certificate on the basis of which admission was sought and the admission and withdrawal register entries. The offence was allegedly committed on 2.7.1993. The date of birth of accused Kashmir Singh as per school record is 25.3.1977 which means that he was above the age of 16 years at the time of the commission of the offence. I, therefore, propose to proceed with the trial. Prosecution evidence be summoned for 4.4.1994.

Date 25.1.1994

Sd/

A.S.J.

From the above, it is clear that the petitioner herein had raised the plea that he was juvenile and for determining the age, the learned Additional Sessions Judge had simply called for the record of the school where he had studied and had decided that as per the school record, his date of birth was 25.3.1977 which meant that he was above 16 years of age on 2.7.1993, the date of the commission of the offence. I have already pointed out that the petitioner has now produced a copy of the birth certificate which shows his date of birth as 16.7.1978. No opportunity appears to have been given to the petitioner to put forward his case with regard to his age on the date of the alleged commission of the offence. As pointed out already, the learned Additional Sessions Judge had merely called for the school record, perused it and determined that the petitioner was not a juvenile.

But as against this order, the petitioner had filed any revision. The trial has proceeded and it now reached the stage for advancing arguments. But he petitioner raised this question about his age once again and the learned Additional Sessions Judge has passed the impugned order dated 15.7.1997 (annexure P1) which reads as follows :

"State versus Kashmira Singh

Present : APP for the State. Accused on bail except Chanan Singh, who is in custody.

Heard. The perusal of the record shows that similar point was raised before my learned predecessor in the year 1994 and he vide order dated 24.1.1994 held that the accused to be above 16 years of age on the basis of record produced before him at that time. I doubt if the second application for the same purpose is maintainable. Hence declined. For statement of accused u/s 313 Cr.P.C. to come up on 29.7.1997."

So we find that the learned Sessions Judge did not accept the claim of the petitioner on the ground that the same point was raised before his predecessor in the year 1994 and that the same was rejected by his predecessor on a perusal of the record produced before him at that time, and therefore, the second application for the same purpose is not maintainable. That is why the petitioner has filed this revision petition questioning this order. Of course, by the order dated 24.1.1994, the learned Additional Sessions Judge had decided that the petitioner was not a juvenile but he had done so merely on a perusal of some record summoned from the school. He had not given any opportunity to the petitioner to establish his claim. Therefore, when the petitioner had not been given an opportunity to establish his claim or to even rebut the evidence produced in the form of the school record, it cannot be stated that there was a proper enquiry as to the age of the petitioner. Therefore, the order dated 24.1.1994 cannot be considered to be a valid order Of course, that order was not questioned in revision but subsequently the petitioner raised the same point and that was also rejected on the ground that the claim made by him earlier in the year 1994 was rejected but not on merits.

In these circumstances, I am of the view that the benefit of a benevolent piece of legislation should not be denied to the petitioner, if it is otherwise available to him, simply on the ground that he had not filed a revision against the previous order. The decision of the Hon''ble Supreme Court shows that even at the appellate stage, this question has been considered. Subsection (3) of Section 7 of the Juvenile Justice Act, 1986 provides that powers conferred on a Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Sessions when the proceeding comes before them in appeal, revision or otherwise. The Act being a benevolent piece of legislation intended to protect the juvenile delinquents from further deterioration and to reclaim, rehabilitate them the provisions of the said Act should be strictly complied with, and in my opinion, without allowing the technicalities to come in the way of enforcing the provisions. Therefore, when a question was raised that the petitioner was a juvenile, there should have been a proper enquiry by giving sufficient opportunity to both sides to establish their rival contentions, which has not been done in this case by the learned Additional Sessions Judge when he decided on 24.1.1994 juvenile by merely summoning the school record and deciding himself that the petitioner was not a juvenile on the basis of that record. This is not a proper order passed after due enquiry. When once again the question was raised before the learned Additional Sessions Judge in the year 1997, the learned Additional Session Judge had rejected the claim of the petitioner on the mere ground that it had earlier been rejected, which I have already pointed out, was not proper. In these circumstance, I am of the view that the petitioner could not be denied an opportunity to establish his case that he was a juvenile on the technical ground that he had not preferred a revision where the order dated 24.1.1994 itself was not passed after due enquiry.

Therefore, taking into consideration all these aspects, I am of the view that the learned Additional Sessions Judge should conduct an enquiry regarding the age of the petitioner on the date of the commission of the alleged offence after giving due opportunity to both the sides, and then proceed in accordance with law. If he ultimately finds that the petitioner was not a juvenile, he can proceed further with the trial. Till the determination of the age of the petitioner on the date of the commission of the alleged offence, the learned Additional Sessions Judge will stay further proceedings in the trial of the case.

The revision is accordingly allowed with a direction to the learned Additional Sessions Judge to determine the age of the petitioner on the date of the commission of the alleged offence after giving due opportunity to both the sides to lead evidence also in this behalf, and then proceed further in accordance with law in the light of the observations made above.

Revision allowed.