Rashid @ Rasshid @ Rashidiya vs State of Rajasthan

Nirmaljit Kaur, J.—This is a Criminal Revision Petition under Sec. 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 against the order dt. 20.07.2012 passed by the Session Judge, Churu, vide which, he infirmed the judgment dt. 07.03.2011 passed by the Juvenile Justice Board, Churu Pradhan Magistrate who has convicted the petitioner under Sec. 363 and 377 IPC and sent him to Observation Home. Learned counsel for the petitioner at the outset did not argue the case on merits but submitted that the petitioner being 28 years of age, could not have been sent back to the Observation Home in view of the settled proposition of law laid down in Bhoop Ram Vs. State of U.P., , Pooran Mal and Others Vs. State of Rajasthan, and Jayendra and another Vs. State of Uttar Pradesh, .

Learned Public Prosecutor, however, while opposing the same, submitted that the age of the petitioner at that time was 17 years and that of the other child was 7 years.

Heard.

After having gone through the judgments of the Courts-below as well as other documents placed on record, the petitioner has rightly not argued the case on merits.

Accordingly, the conviction of the petitioner is upheld. However, there is merit in the second argument raised by the learned counsel for the petitioner that being 28 years of age, he should not be sent to the Observation Home. The fact has not been disputed.

The Hon''ble Apex Court in the case of Poorna & Others (supra) was pleased to hold in para 11 of the judgment, which reads as under:-

On calculating the age of appellant Pooran as per his date of birth i.e. April 4, 1977, we notice that Pooran has by now completed 29 years and 9 months and therefore it is not possible to send him to an observation home established under Sec. 8 of JJ Act for the purpose of rehabilitation and social integration of a juvenile. In a similar situation, their Lordships of the Supreme Court in Jayendra and another Vs. State of Uttar Pradesh, propounded that where accused who was a juvenile on the date of commission of offence, has crossed 23 years of age, he cannot be sent to an approved school in view of his age. Therefore conviction of such an accused was although upheld, the sentence awarded to him was quashed.

The same view was taken in the case of Bhoop Ram (Supra). Para 8 of which reads as under:-

Since the appellant is now aged more than 28 years, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra and another Vs. State of Uttar Pradesh, that where an accused had been wrongly sentenced to imprisonment instead of being treated as a child" under Sec. 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed.

In view of the settled proportion of law, the petitioner being 28 years of age, there is no question of sending him to Observation Home.

Accordingly, the revision petition qua the conviction is dismissed. However, the sentence passed by the Principal Magistrate, Juvenile Justice Board, Churu vide his judgment dt. 07.03.2012 and upheld by the Session Judge, Churu vide his judgment dt. 20.07.2012 against the accused petitioner Rashid @ Rasshid @Rashidiya S/o Lal Mohammed is quashed. Disposed of as above.