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Judgment
The Honourable Mr. Justice Aruna Jagadeesn, J.—The Petitioner''s son viz., Manikandan was arrayed as 1st accused in S.C. No. 243 of
2008 on the file of the Additional Sessions Court/Fast Track Court No. 1, Thoothukudi. By the judgment dated 11.6.2010, the Trial Court has
convicted him under Sections 148, 449, 302 r/w 34 and 506(ii) Indian Penal Code (2 Counts) and he was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs. 250 in default, to undergo Simple Imprisonment for one month for the offence u/s 148 Indian
Penal Code and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 250, in default, to undergo Simple Imprisonment for one
month for the offence u/s 449 Indian Penal Code and to undergo life imprisonment and to pay a fine of Rs. 500/- , in default, to undergo Simple
Imprisonment for one year for the offence u/s 302 r/w 34 Indian Penal Code and to undergo rigororous imprisonment for one year for each count
and to pay a fine of Rs. 250/- for each count, in default, to undergo Simple Imprisonment for one month for the offence u/s 506(ii) Indian Penal
Code (2 Counts). All the sentences are directed to run concurrently. This judgment was confirmed by this Court vide judgment dated 16.11.2010
in Criminal Appeal (MD) No. 227 of 2010.
It is contended by the Learned Counsel for the Petitioner that the offence was committed on 11.8.2005 and the date of birth of the Petitioner''s
son is 16.12.1987 and he was only a juvenile on the date of commission of offence and hence, he is entitled to the benefit u/s 7A of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ""the Act""). In support of his contention, the Learned Counsel relied
on the unreported decisions of this Court in Chendu v. The Superintendent of Central Jail, Palayamkottati and Anr. dated 8.7.2008 in H.C.P.
(MD) No. 223 of 2008, and in Chithrav. InspectorofPolice,Avaniyapuram Policestation Madurai Districtand Anr. dated19.7.2010 in H.C.P.(MD)
No. 202 of 2010.
We have also heard the learned Additional Public Prosecutor on the above contention and paid our anxious consideration on the rival
submissions made and perused the materials available on record.
After the Habeas Corpus Petition was taken on file, the matter was referred to the Additional District and Sessions Judge, Fast Track Court
No. 1, Tuticorin to make an enquiry on the age of the convict/A1 in S.C. No. 243 of 2008, who was the Appellant in Crl.A.(MD) No. 227 of
2010 and who is the son of the Petitioner herein. On enquiry, a report has been submitted by the learned Additional District Judge, Fast Track
Court No. 1, Thoothukudi stating that the 1st accused, Manikandan was born on 16.12.1987. The date of offence is 11.8.2005. On that date, he
had completed only 17 (seventeen) years 7 (seven) months and 25 (twenty five) days only. He had not completed 18 years. As per the Act,
juvenile or child is defined as ""a person who has not completed 18 years of age"". Therefore, it is quite clear that he was a juvenile on the date of
occurrence.
In a similar case, in Upendra Kumar v. State of Bihar (2009) 3 SCC 592), the Hon''ble Supreme Court has considered this aspect and held as
follows:
Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ""the Act"") provides that ""juvenile"" or ""child"" means a
person who has not completed eighteenth year of age. The fact that on the date in question, the Appellant had not completed 18 years of age
cannot be doubted as the aspect of age stands fully established on the record. As per the report of the Medical Board, placed as Annexure A to
the appeal, the Appellant was between the age of 17 and 18 years on the date of the report, namely, 28-6-1995. Even the order of sentence
records the age of the Appellant as 17 years.
Section 16 of the Act, inter alia, provides that no juvenile shall be sentenced to death or life imprisonment, or committed to prison in default of
payment of fine or in default of furnishing security. A juvenile, under the provisions of the Act, can be referred to the Juvenile Board for such orders
to be passed by the Board as it thinks fit in terms of Section 15 of the Act. Section 20 provides for special provision in respect of pending cases. It
provides that notwithstanding anything containing in the Act, all proceedings in respect of a juvenile pending in any court in any area on the date on
which the Act came into force in that area shall be continued in that court
as if the Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing
any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the
provisions of the Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. The Act came into force on 1-4-
2001. Therefore, when the High Court decided the criminal appeal filed by the Appellant, the Act had already been in force and the Appellant was
entitled to the benefit thereof.
4 Mr Sharan has cited various decisions but reference may be made only to the case of Bhola Bhagat v. State of Bihar 1 since earlier decisions on
the issue in question have been noticed therein. In Bhola Bhagat case1 referring to the decisions in the case of Gopinath Ghosh v. State of W.B.2,
Bhoop Ram v. State of U.P.3 and Pradeep Kumar v. State of U.P.4 this Court came to the conclusion that the accused who were juvenile could
not be denied the benefit of the provisions of the Act then in force, namely, the Juvenile Justice Act, 1986.
The course this Court adopted in Gopinath Ghosh case2 as also in Bhola Bhagat case1 was to sustain the conviction but, at the same time,
quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the Appellant to the Juvenile Board
does not arise. Following the aforesaid decisions, we would sustain the conviction of the Appellant for the offences for which he has been found
guilty by the Court of Session, as affirmed by the High Court, at the same time, however, the sentence awarded to the Appellant is quashed and
the appeal is allowed to this extent. Resultantly, the Appellant is directed to be released forthwith if not required in any other case.
In a recent decision in Dharambir Vs. State (NCT of Delhi) and Another, , the Hon''ble Supreme Court has held as follows:
Proviso to Sub-section (1) of Section 7-A contemplates that a claim of juvenility can be raised before any court and has to be recognised at
any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and
the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of
the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the
benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines ""juvenile"" or ""child"" to mean a person who has not
completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act.
In the present case, this aspect of the matter was not brought to the notice either before the Trial Court or before this Court in Criminal Appeal
(MD) No. 227 of 2010 when the matter was heard and disposed of, on 16.11.2010. However, the Act had come into force on 1.4.2001. On the
date of commission of offence i.e. on 11.8.2005 and when the High Court decided the Criminal Appeal, the Petitioner was entitled to the benefit of
the Act.
Following the course adopted by the Hon''ble Supreme Court, we allow this Habeas Corpus Petition. The order of conviction has been
confirmed by this Court in Crl.A.(MD) No. 227 of 2010. But the juvenile cannot be denied the benefit of the provisions of the Act which had
already came into force and as per Section 16 of the said Act, no juvenile can be sentenced to death or life imprisonment. Therefore, we direct the
detenu to be released forthwith, unless his presence is required in connection with any other case.