Gauhati High Court
Umed Ali vs The State Of Assam And Anr on 13 December, 2021
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GAHC010031262021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./57/2021
UMED ALI
S/O- ABDUL RASID, VILL.- SARISHABARI, P.S. DALGAON, DIST.-
DARRANG, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P., ASSAM.
2:BADIUZ ZAMAL
S/O- LATE RUSTOM ALI
VILL.- SARISABARI
P.S. DALGAON
DIST.- DARRANG, ASSAM
PIN- 784116
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HON'BLE MR. JUSTICE ROBIN PHUKAN
13-12-2021
Heard Mr. Z. Kamar, learned senior counsel and Amicus Curiae and Mr.
Azad Ahmed, learned counsel for the appellant. Also heard Ms. B. Bhuyan,
learned Additional Public Prosecutor, Assam, appearing for the State.
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2. By the order dated 10.11.2021, it had been held that a plea was raised
that when the offence was committed, the appellant was a juvenile and on
being satisfied, an enquiry was made on the issue as to whether the
appellant was a juvenile at the time when the offence was committed on
16.03.2018. By the order of 10.11.2021, the report of the learned District
Judge, Darrang, Mangaldoli, dated 6.9.2021 was taken note of wherein the
report of the enquiry provides that the appellant was in-fact a juvenile when
the offence was committed. Accordingly, by the order dated 10.11.2021, the
appellant was required to appear before the Juvenile Justice Board,
Mangaldoi within a period of 10 days from the date of the order, for a
consideration on the allegations that were raised against him. Accordingly,
Mr. Azad Ahmed, learned counsel for the appellant makes a submission that
the appellant did appeared before the Juvenile Justice Board on 18.11.2021.
3. A question has been raised as to what would be the status of the
appellant on being found to be a juvenile as regards the conviction and
sentence what was passed against him by the judgment and order dated
17.12.2020 in Special (POCSO) Case No.13 of 2018, by the Additional
Sessions Judge (FTC), Darrang, Mangaldai.
4. Section 9(3) and Section 24 of the Act of 2015 read as follows:-
"Section 9 - Procedure to be followed by a Magistrate who has
not been empowered under this Act. -
...................
(3) If the court finds that a person has committed an offence
and was a child on the date of commission of such offence, it
shall forward the child to the Board for passing appropriate
orders and the sentence, if any, passed by the court shall be
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deemed to have no effect."
Section 24- Removal of disqualification on the findings of an
offence.-
(1) Notwithstanding anything contained in any other law for the
time being in force, a child who has committed an offence and
has been dealt with under the provisions of this Act shall not
suffer disqualification, if any, attached to a conviction of an
offence under such law:
Provided that in case of a child who has completed or is
above the age of sixteen years and is found to be in conflict with
law by the Children's Court under clause (i) of sub-section (1) of
section 19, the provisions of sub-section (1) shall not apply.
(2) The Board shall make an order directing the Police, or by
the Children's court to its own registry that the relevant records
of such conviction shall be destroyed after the expiry of the
period of appeal or, as the case may be, a reasonable period as
may be prescribed:
Provided that in case of a heinous offence where the child is
found to be in conflict with law under clause (i) of sub-section
(1) of section 19, the relevant records of conviction of such child
shall be retained by the Children's Court.".
5. We have gone through the provisions of Section 9(3), read with
Section 24 thereof of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (for short the 'Act of 2015').
6. Section 9(3) of the said Act, inter alia, provides that if the Court finds
that a person has committed an office and was a child on the date of
commission of such an offence, the Court shall forward the child to the
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Juvenile Justice Board for passing appropriate orders and the sentence, if
any, passed by the Court against such a juvenile, shall be deemed to have no
effect. The provisions of Section 9(3) of the Act of 2015 makes it explicit that
whatever sentence that have been passed against a person who was a
juvenile on the date of committing the offence, shall have no effect.
7. Section 24 of the said Act of 2015, on the other hand, provides, inter
alia, that notwithstanding contained in any other law for the time being in
force, a child who had committed an offence and has been dealt with under
the provisions of the Act of 2015, shall not suffer disqualification, if any,
attached to a conviction of an offence under such law.
8. Section 24 begins with a non-obstinate clause with an
expression-'notwithstanding' and it proceeds to provide that notwithstanding
anything contained in any other law for the time being in force, which would
also include the law under the Code of Criminal procedure and the Protection
of Child from Sexual Offences Act, 2000, and the offences that may have
been committed under the Indian Penal Code as well as the Protection of
Child from Sexual Offences Act, 2000. In other words, notwithstanding what
the Code of Criminal Procedure, the Indian Penal Code and the Protection of
Child from Sexual Offences Act, 2000 may contain, if any conviction had
already been made pursuant to such a law, Section 24 of the Act of 2015
makes it explicit that the child who may have committed the offence, as a
juvenile, shall not suffer any disqualification from such conviction that may
have been meted out on him. Section 24 of the Act of 2015 itself is self
explanatory on the question of as to what would happen to the conviction
that was meted out to a juvenile under any other law subsequent to him
being required to appear before the Juvenile Justice Board and the Juvenile
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Justice Board passes appropriate orders under the Act of 2015.
9. With the aforesaid clarification, as the appellant had already appeared
before the Juvenile Justice Board, the orders that the Juvenile Justice Board
may pass, shall govern the field and his earlier conviction shall not be a
disqualification in any manner. The appeal stands closed.
JUDGE JUDGE
Comparing Assistant
