Shubham Surana vs State Of West Bengal & Anr
2023 Latest Caselaw 402 Cal

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side

Present :- Hon'ble Mr. Justice I. P. Mukerji Hon'ble Mr. Justice Biswaroop Chowdhury

CRR NO.4403 of 2022 CRR NO.4401 of 2022 CRR NO.4397 of 2022 CRR NO.4398 of 2022 CRR NO.4399 of 2022

Shubham Surana Vs.

State of West Bengal & Anr

For the Appellant : Mr. Kalyan Bandyopadhyay, Sr. Adv., Mr. S. Choudhury, Mr. Raghav Munshi, Mr. Kriti Mehrotra, Mr. Roshan Pathak.

 For the State               :     Mr. Rudradipta Nandy.,
                                   Ms. S. Das,

 For the State               :     Mr. Sandipan Ganguly, Sr. Adv.
                                   Mr. Bibaswan Bhattacharya.


 Judgment on                 :     16.01.2023.


 I. P. MUKERJI, J.-

This judgment is a work of collaboration between my brother Mr. Justice

Biswaroop Chowdhury and myself.

These applications under Section 482 of the Criminal Procedure Code were

heard out, dispensing with all formalities. As common questions of fact and

law are concerned they are disposed of by this composite judgment and

order.

The preamble to the Juvenile Justice (Care and Protection of Children) Act,

2000 (the 2000 Act) made it explicit that it was being enacted to consolidate

and amend the law relating to juveniles in conflict with law. It was repealed

and replaced by the Juvenile Justice (Care and Protection of Children) Act,

2015 (the 2015 Act) on 15th January, 2016.

Both the 2000 and the 2015 Acts have a non-obstantive clause. Section

1(4) in each clarifies that irrespective of any provision in any other Act, the

Act will apply to all matters covered by it inter alia concerning children in

conflict with law.

In the Act of 2000, "juvenile" or "child" is defined in Section 2(k) and

"juvenile in conflict with law" is defined in Section 2(l) as follows:-

"2. (k) "juvenile" or "child" means a person who has not completed eighteenth year of age.

(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence."

There is no change in the definition of "juvenile" in Section 2(35) of the

2015 Act.

However, in the 2015 Act, "child" and "juvenile" are defined separately as

follows:-

"2. (12) "child" means a person who has not completed eighteen years of age."

2. (35) "Juvenile" means a child below the age of eighteen years."

"Child in conflict with law" is defined in Section 2(13) of the 2015 Act as

follows:-

"2. (13) "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence."

The definition of "juvenile" or "child" in Section 2(k) of the 2000 Act and

of "child" in Section 2(12) of the 2015 Act and "juvenile in conflict with

law" in Section 2(l) of the 2000 Act and Section 2(13) of the 2015 Act are

identical.

A child would be in conflict with law if he is alleged to have committed an

offence below the age of 18 years on the date of commission of such

offence.

Our constitutional principle enumerated in Article 20(1) is that a person

can be charged, tried and convicted for an alleged offence on the date of

its commission and not for an act which was not an offence on such date

but recognized as an offence at a later point of time by amendment of a

statute or enactment of a new statute.

Say for example, an offence is committed by A when he is 17 years and

11 months old. The offence is discovered by the police, enquired into and

tried after A has completed 18 years of age. Although at the time of

discovery of the offence A has completed 18 years of age, he would be

tried under the Act in force on the date of commission of the offence.

Section 9(2) of the 2015 Act recognizes this principle. When a person

claims before a court that he was a child on the date of commission of

the offence, the court would make an enquiry and determine the age of

the person on the date of the alleged commission of the offence. The

proviso to the sub-section makes it abundantly clear that this claim can

be made and adjudicated upon at any stage of the proceedings.

Parliament has also provided in Sections 5 & 6 of the 2015 Act that once

a procedure under the 2015 Act has begun, while the accused was a

juvenile, the same procedure would apply, if later he ceased to be so.

A most extraordinary situation has arisen in this case.

It is undisputed that the petitioner was a juvenile on the date the alleged

offences described in detail in the charge sheets were committed.

Nonetheless in them there are references to several cases started by the

police stations after the petitioner ceased to be a juvenile. The particulars

of such offences and the dates of their alleged commission are

unavailable in the charge sheets. It is not evident whether some of them

were committed after the accused ceased to be a juvenile or child.

Mr. Bandyopadhyay, learned Senior Advocate for the petitioner submits

that the alleged offences were committed when the petitioner was a

juvenile. Instead of proceeding under the procedure prescribed by the

said Act the prosecution is prosecuting him under the ordinary law.

Therefore, the whole prosecution is a nullity in the eye of law.

On the other hand, Mr. Ganguly, learned counsel submits that the

offences were continuing in nature and even if they had commenced

when the petitioner was a juvenile they continued when he ceased to be

so. The Act provided for safeguards when a juvenile accused was being

prosecuted. Here the petitioner/accused had crossed that age. Therefore,

prosecution under the ordinary law was justified.

Suppose an offence is continuous and part of it is committed by a person

when he is a juvenile and the rest of it when he ceases to be so, is the

accused to be prosecuted under the said Act or under the ordinary law?

The birth certificate of the petitioner as annexed to the petition shows his

date of birth as 2nd October, 2001. In the charge sheets the same date of

birth is reflected, which shows that the prosecuting agency accepted this

date of birth. In any case, even before us no dispute has been raised by

the prosecution with regard to the petitioner's date of birth. Even in the

complaint petition (see page 49 of the application CRR 4397 of 2022) the

complainant says that the case was started in 2013.

If you read the charge sheets prima facie the alleged offences seem to

have been committed when the petitioner was a juvenile. The petitioner

continued to be so, till much later.

Although the charge sheets do not explicitly say so Mr. Ganguly submits

before the court that the charge sheets would also reveal that the alleged

offences continued after the petitioner ceased to be a juvenile.

Now, if the petitioner was a juvenile at the time of the alleged commission

of the offence he could not have been arrested, under Section 10(1) of the

said Acts. Neither could he have been placed in a police lock up or locked

in a jail. The Juvenile Justice Board constituted in a District would have

exclusive power to deal with a juvenile in conflict with law.

Here, a situation has arisen which perhaps was not contemplated by the

legislature while enacting the said Act.

On my reading and interpretation of the said Act there is no provision

which takes care of this peculiar situation of prosecution of an offender

for having committed an offence while he was a juvenile and which

offence continued when he ceased to be a juvenile. If it is one continuing

offence you cannot break up one offence into two, one having been

committed whilst a person was a juvenile and the other when he ceased

to be juvenile. Try one under the said Act and the other under the

ordinary law. It would be trying the same offence twice through different

substantive law and procedures. It would be a case of double jeopardy

and unsustainable in law (see Article 20(2) of the Constitution).

If the offences are two distinct offences then the one committed during

the period a person was juvenile can be segregated from one committed

thereafter.

Suppose the offence is committed whilst the accused was a juvenile and

he ceased to be a juvenile thereafter. If that be the case, the intention of

the legislature was that both substantive and procedural rights vested in

him could not be taken away by the advancement of his age from juvenile

to non-juvenile. The procedure for investigation, conduct of the trial and

the award of punishment would be according to the law which was

applicable when he was a juvenile.

In continuing offences, where one part is committed while the accused is

a juvenile and the other part when he was not, the situation is different.

A continuing offence has to be taken as a chain of facts constituting an

offence. In such a case, would the accused be treated under the special

law governing juveniles or under the ordinary law? The answer is not

easy. In the end parliament has to take a decision on the point. We can

only make a few observations.

What a judicial mind has to consider is that in enacting this special law

the legislature has taken into account the fact that a child or juvenile or

a person below 18 years of age may be led astray by his friends and

companions or by his failure to consider the realities, or what is right

and wrong. The environment in which a child grows up might also have a

role to play. In such a situation the law shows leniency to him for his

age. The law also considers the fact that at such a tender age a child or

juvenile may not be able to have the required intention or mens rea as

adults would have to commit a crime.

Giving a purposive interpretation to the words of the statute if a small

part of the continuing offence which is incidental or a small component

of the actus reus is committed after the person ceased to be a juvenile

then he would continue to enjoy the protection of the Juvenile Act for the

reason that the mens rea for committing the offence during the post

juvenile period was minimal compared to the mens rea for the prior

period.

If on the other hand, the substantial portion of the offence continues

after a juvenile ceased to be so, then certainly the mens rea for

committing the offence was substantial during the period he ceased to be

so. In this case, the offence continuing after the juvenile ceased to be so

would be counted as a substantive offence. The part of it committed

before ceasing to be juvenile would be deemed to have fused into the

part, committed after ceasing to be so. In that case he ought to be tried

under the ordinary law and all proceedings which had started against

him under the Juvenile Act would be converted into one under the

ordinary law and proceeded with.

However, if the offences can be segregated into one committed whilst a

juvenile and other ceasing to be one, then separate trials can be held.

Upon considering the provisions contained in Section 5, and section 9 of

the 2015 Act and the facts of the case, we dispose of these applications,

by issuing directions upon the learned court below where these

proceedings against the petitioner are pending, to decide the issue as to

whether the petitioner was a child at the time of commission of the

alleged offence.

We grant liberty to the petitioner to surrender before the learned court

within a period of three weeks from date together with an appropriate

application making a claim of being a child during the alleged

commission of the offences. In the event such an application is made by

the petitioner, the learned court shall consider and decide the same in

accordance with the provisions contained in Sub-Section - 2 and Sub-

Section - 3 of Section 9 of the 2015 Act, considering our above

observations.

During the course of this inquiry and determination under Section 9 of

the 2015 Act whether the petitioner was a child at the time of the alleged

offences, the learned court may either decide to keep the petitioner in

protective custody or may grant him bail on such terms and conditions

as it may think fit and proper. In the event the learned court decides to

keep the petitioner in protective custody the petitioner shall be placed in

a place of safety as defined under Section 2(46) of the 2015 Act. It is

however made clear that the warrant of arrest issued against the

petitioner shall remain stayed for a period of 3 weeks. In the event the

petitioner fails to appear within three weeks, learned court will be

empowered to execute the warrant to ensure his appearance.

The investigating authorities shall, till the above determination is made

by the Board, deal with the petitioner according to the 2015 Act.

Each of the Criminal Revision Applications is disposed of accordingly.

Urgent certified photo copy of this judgment and order, if applied for, be

furnished to the appearing parties on priority basis upon compliance of

necessary formalities.

I agree.

(Biswaroop Chowdhury, J.)                               (I. P. Mukerji, J.)