Sasikumar Naik vs State Of Kerala
2021 Latest Caselaw 19948 Ker

                                                           CR
             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                    &
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
      FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                          CRL.A NO. 201 OF 2021
   [AGAINST THE JUDGMENT IN S.C. NO.259 OF 2017 ON THE FILE OF THE
               ADDITIONAL SESSIONS COURT-IV, KOTTAYAM]
     [CRIME NO.1230/2016 OF ETTUMANOOR POLICE STATION, KOTTAYAM]
APPELLANT/ACCUSED:

           SASIKUMAR NAIK
           AGED 22 YEARS
           S/O.DHANURJAY NAIK, KENDUMUNDI VILLAGE, JAB RAJPUR TOWN,
           GOPINATHPUR P.O., KALAHANDI DISTRICT, ODISHA STATE, PIN -
           766 020, (CONVICT NO.4258, CENTRAL PRISON, POOJAPPURA,
           THIRUVANANTHAPURAM, PIN - 695 012).
           BY ADVS.
           M.P.MADHAVANKUTTY
           KUM. K. REMIYA RAMACHANDRAN

RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM, PIN - 682 031.
           BY ADV.SREEJITH V.S, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 02.09.2021,
THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING:
 CRL.APPEAL No.201/2021             2




                               JUDGMENT

Ziyad Rahman A.A., J.

The appellant is the accused in S.C.No.259/2017 on

the file of the Additional Sessions Court-IV, Kottayam.

As per the judgment impugned in this case he stands

convicted for the offence punishable under Section 302

IPC and is sentenced to undergo imprisonment for life and

a fine of Rs.50,000/- with a default sentence of simple

imprisonment for six months. The appellant is in judicial

custody since 15.08.2016.

2. The prosecution case is as follows: On

14.08.2016 at 8.15 a.m., the appellant, due to enmity

stabbed the deceased to death; both natives of Odisha.

Both were employees of PW1/CW1 and were residing together

in a rented room. Based on the information submitted by

PW1, Crime No 1230/2016 was registered by Ettumanoor

Police, and the Circle Inspector of Police, Ettumanoor

conducted the investigation and filed charge sheet. In

the trial, the prosecution examined 23 witnesses, marked

33 exhibits and 23 MOs were identified. Based on the

materials revealed in the trial, the Sessions Court found

the appellant guilty and imposed a sentence as mentioned

above. This appeal is submitted by the appellant

challenging the said conviction and sentence.

3. Heard Sri.M.P.Madhavankutty, learned counsel for

the appellant and Sri. Sreejith V.S., learned Public

Prosecutor for the State.

4. The primary contention put forward by the

learned counsel for the appellant in this appeal, which

is not ripe for hearing, is that the appellant was a

juvenile on the date of the incident as his date of birth

is 04.12.1998. In support of the said contention he

produced Annexure-I School Leaving Certificate issued by

the Head Master, Government U.P.School, Gopinathpur,

Odisha. Based on the said document he contended that the

appellant was a juvenile as on the date of commission of

the offence, which was on 14.08.2016 and hence the

provisions of the Juvenile Justice (Care and Protection

of Child) Act, 2015 (hereinafter referred as JJ Act,

2015), particularly Section 9 thereof will be applicable.

5. In the light of the contention of juvenility, we

directed the appellant to furnish the personal address of

his native place and other details, such as, place of

birth, jurisdictional police station, District, the

school first attended etc, for enabling an inquiry in

this regard, as mandated under section 9(2) of the JJ

Act, 2015. The said details were furnished by the

appellant as per Crl.M.A 3/2021. Accordingly we passed an

order on 14.7.2021 directing the Member Secretary, Kerala

Legal Services Authority to contact the Member Secretary,

Odisha Legal Services Authority and furnish them with the

personal details of the appellant. The Secretary, Odisha

Legal Services Authority was directed to issue a

communication to the Secretary, District Legal Services

Authority, Bhawani Patana, Kalahandi District and

Sessions Division, who was to contact the District Police

Chief, Bhawani Patana and instruct him to conduct an

inquiry with respect to the date of birth of the

appellant herein, through Station House Officer, Rampur

Police Station or any other authorized officer. A report

of enquiry was directed to be submitted before this

Court, through the Secretary, District Legal Services

Authority, Bhawani Patana, Kalahandi District and

Sessions Division, along with the authenticated

certificates of date of birth.

6. In compliance of the aforesaid direction, the

respective authorities conducted an inquiry and a report

was placed on record before this Court through the Kerala

State Legal Services Authority. The report and the

documents which accompany the same clearly indicate that

the date of birth of the appellant is 4.12.1998. As the

date of commission of the offence in this case was on

14.8.2016, he was aged 17 years, 7 months and 10 days as

on the date of the incident. As the documents indicating

the age of the deceased were produced before this Court

as part of an inquiry directed to be conducted by this

Court as contemplated under section 9(2) of the JJ Act,

2015, we deem it appropriate to mark the aforesaid

documents as part of the case records. Accordingly, the

attested copy of the extract of the Admission Register

maintained by Gopinathpur Upper Primary School, Rampur

Taluk, Kalahandi District, the contents of which is in

Oriya language is marked as Exhibit.C1. The true English

translation of the relevant entry relating to the

appellant as contained in Ext.C1 is marked as Exhibit.C2.

The communication dated 2.8.2021 issued by the Inspector

in-charge, Rampur Police Station addressed to the

Superintendent of Police, Kalahandi is produced as

Exhibit C3. The communication dated 2.8.2021 issued by

the Superintendent of Police, Kalahandi and addressed to

the Secretary, District Legal Services Authority,

Kalahandi is marked as Exhibit C4. The communication

dated 4.8.2021 issued by the Secretary, District Legal

Services Authority, Kalahandi to the Assistant Secretary,

Odisha State Legal Services Authority, Cuttack is marked

as Exhibit C5. The communication dated 9.8.2021 issued by

the Member Secretary, Odisha State Legal Services

Authority addressed to the Member Secretary, Kerala State

Legal Services Authority is marked as Exhibit C6. The

communication dated 10.8.2021 issued by the Member

Secretary, Kerala State Legal Services Authority

forwarding the aforesaid documents to this Court is

marked as Exhibit C7. The School Leaving Certificate

dated 24.04.2011 issued by the Head Master, Government

U.P. School, Gopinathpur is produced by the appellant

along with Crl.M.A 1/2021 and marked as Annexure I.

7. As mentioned above, the documents referred to

above clearly indicate that the contention put forward by

the appellant as to the juvenility is correct. Section 9

of the Juvenile Justice (Care and Protection of Children)

Act, 2015 (hereinafter referred to as 'JJ Act, 2015')

contemplates the procedure to be followed when a

contention as to the juvenility of the accused is raised

before a Court which is adjudicating a criminal offence

committed by a person. Section 9(2) of the said Act reads

as follows:

9.2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

As per the said provision, a claim of juvenility can be

raised at any stage of the proceedings even after the

final disposal of the case and if such a claim is raised,

it shall be determined in accordance with the provisions

contained in JJ Act, 2015. Sub-section 3 of Section 9

further provides that, if the Court finds that the

accused was a child on the date of commission of an

offence, it shall forward the child to the Juvenile

Justice Board constituted under section 4 of the Act, for

passing appropriate orders. It further provides that the

sentence, if any, passed by the court shall be deemed to

have no effect. As the proviso to Sub-Section 2 of

Section 9 enables the appellant to raise the claim of

juvenility at any point of time, even after the disposal

of the case, we are bound to consider the contention now

raised. As the documents produced before us consequent to

the inquiry in respect of the claim put forward by the

appellant reveal that the appellant was a juvenile as on

the date of commission of the offence, he is entitled for

all the benefits as contemplated under JJ Act, 2015.

8. Having found that the appellant was a juvenile

at the time of commission of the offence, the next

question to be decided is regarding the status of

conviction and sentence already imposed upon the

appellant. Sub-section 3 of Section 9 of JJ Act, 2015

speaks about the impact of the finding of juvenility,

which shall be only upon the sentence imposed. The

crucial question that emerges in the facts of this case

is as to whether, it is necessary to set aside the

conviction of the said case, as the trial which was

conducted in this case and ended up in conviction of the

appellant was without jurisdiction, since he was a

juvenile ("child in conflict with law" as defined under

section 2(13) of the Act) at the time of commission of

the offence. Chapter IV of the JJ Act 2015 contemplates a

detailed procedure as to the manner in which a child in

conflict with law has to be dealt with and enumerates the

nature of proceedings which have to be initiated against

such a child. The said provisions by clear inference

prohibits a trial being conducted by a regular criminal

court. The trial conducted in this case can only be

termed as a proceeding without any jurisdiction. However,

the question whether the lack of jurisdiction to try the

case as against the appellant herein should result in

setting aside of conviction is a crucial question to be

decided and it requires a detailed examination of the

provisions in the JJ Act, 2015 and also the evolution of

law in this regard right from its inception.

9. When we go back to the history of enactment of

juvenile justice laws, what we could gather is that,

earlier the field was governed by the Juvenile Justice

Act, 1986. As per Section 2(h) of the Juvenile Justice

Act,1986, the age for determining the juvenility of a boy

was fixed as 16 years whereas the same for a girl was 18

years. Subsequently, Juvenile Justice (Care and

Protection of Children) Act, 2000 (hereinafter referred

as JJ Act, 2000) was enacted with effect from 1.4.2001,

by repealing the Juvenile Justice Act, 1986. Section 2(k)

of the JJ Act, 2000 defined the juvenile or child as a

person who has not completed 18 years of age,

irrespective of the gender. Section 7 of the JJ Act, 2000

contemplated that when a juvenile is brought before any

Magistrate Court not empowered to exercise powers of

Juvenile Justice Board under the Act, he has to forward

the juvenile to the competent authority having

jurisdiction, for further proceedings. The exclusive

power to deal with a person who committed the offence as

a juvenile, vested upon the Juvenile Justice Board

established under Section 4 of JJ Act, 2000. A detailed

procedure was also contemplated therein as to the manner

in which the enquiry against juvenile has to be proceeded

with and also the orders that can be passed against him.

Section 20 of the JJ Act, 2000 has a crucial importance,

as it dealt with the cases registered against juveniles

while the 1986 Act was in force and the proceedings of

which were pending. The said provision reads as follows:

"Section 20: Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of juvenile pending in any

Court in any area on the date on which this act comes into force in that area, shall be continued in that Court as if this 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 this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence."

As per Section 20, all proceedings in respect of a

juvenile (ie: who has passed the age of 16 but not

attained 18) pending as on the date on which the Act,

2000 came into force was to be continued in that Court as

if Act 2000 has not been passed and it was further

stipulated that, in case, the juvenile was found guilty

in such proceedings, the courts were bound to refer the

juvenile to the Juvenile Justice Board for imposing a

sentence in tune with the provisions of JJ Act, 2000.

Thus there is clear stipulation in Section 20 of the JJ

Act, 2000 that all criminal proceedings against a

juvenile within the meaning of JJ Act, 2000, who was not

a juvenile as defined under JJ Act, 1986, could be

continued upto the point of conviction ignoring the

provisions of JJ Act, 2000 and the applicability of JJ

Act, 2000 comes into play only at the point of sentence.

By virtue of the above provision, even persons who were

not juveniles under 1986 Act were treated as juveniles as

defined in Act of 2000 even in respect of offences

committed prior to the enactment of JJ Act, 2000 for the

purpose of imposing a sentence. It is seen that this gave

rise to a large number of litigations as to the

applicability of the benefit of Section 20 and the class

of persons who would come within its ambit. The said

controversy was settled by the Constitution Bench of the

Honourable Supreme Court in Pratap Singh v. State of

Jharkhand and Another [(2005) 3 SCC 551]. In the said

decision it was held by the Hon'ble Supreme Court that

juvenilily of a person has to determined on the basis of

the date of occurrence and not as on the date of trial.

As regards the applicability of section 20, it was found

that the said benefit shall be applicable to those

persons who have not completed 18 years as on 01/04/2001,

the date of enactment of JJ Act, 2000.

10. Subsequent to the decision in Pratap Singh's

case (supra), the Government introduced substantial

amendments to JJ Act, 2000 as per the Juvenile Justice

(Care and Protection of Children) Amendment Act, 2006.

Section 7A was introduced wherein the accused persons

were granted liberty to raise contention at any point of

time even after final disposal of the case. Similarly a

Proviso and an Explanation were added to Section 20 which

reads as follows:

"Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."

In the Explanation to Section 20 in the amended JJ Act,

2000, it was specifically clarified that the

determination of juvenility shall be in terms of clause

(l) of section 2, and even if the juvenile ceases to be

so on or before the date of commencement of JJ Act, 2000;

the provisions of the said Act shall be applicable as if

the provisions contained therein was in force when the

alleged offence was committed. By virtue of the amendment

brought by way of introduction of proviso and explanation

to Section 20, it was clarified that all persons who have

not completed 18 years as on the date of commission of

crime shall be eligible for the benefit of Section 20 and

also the other provisions contained in JJ Act, 2000, even

if, the Act, which was in operation at the time of

commission of offence was Juvenile Justice Act, 1986.

Thus the limitation prescribed in Pratap Singh's case

(supra) by confining the applicability of JJ Act 2000 to

the persons who have not completed 18 years as on the

date of enactment of the said Act, was given a go by and

a wider ambit was provided to section 20, through the

newly added proviso and explanation, by making available

the benefits of the Act, 2000, to all persons who have

not completed 18 years as on the date of commission of

offence. The date of enactment of Act, 2000 became

irrelevant to determine the question of juvenility. In

Hari Ram Vs State of Rajasthan ((2009) 13 SCC 211) this

was specifically noticed and held that, the amendments

brought in the year 2006, neutralized the effect of the

finding in Pratap Singh, by which the benefit was

confined to the persons who have not completed age of 18

years as on the date of enactment of 2000 Act.

11. As Section 7A of JJ Act, 2000 contemplated the

impact of the question of juvenility only upon the

sentence, there arose a number of litigations as to the

orders to be passed regarding the conviction and sentence

imposed upon a juvenile by regular criminal courts

without noticing the juvenility. In Jitendra Singh @

Babboo Singh and Another v. State of Uttarpradesh

[(2013)11 SCC 193], the said question was specifically

considered among other questions that arose in respect of

JJ Act, 2000. That was a case which arose from the

provisions of an incident that occurred on 23.5.1988. The

trial court convicted the accused therein and sentenced

him to undergo rigorous imprisonment for 7 years for the

offences punishable under Section 304-B and 498-A of the

Indian Penal Code. The question as to the orders to be

passed by the court on conviction and sentence was

specifically considered by the Hon'ble Supreme Court in

the said judgment. For the purpose of considering the

said question, a large number of decisions were taken

note of by the Hon'ble Supreme Court after segregating

the said decisions into four categories. The first

category of cases consisted of cases where sentence alone

was quashed. The judgments considered under the said

category were Jayendra v. State of U.P. (1981)4 SCC 149,

Bhoop Ram v. State of U.P. (1989)3 SCC 1, Pradeep Kumar

v. State of U.P. 1995 Supp (4)SCC 419, Bhola Bhagat v.

State of Bihar (1997)8 SCC 720, Upendra Kumar v. State of

Bihar (2005)3 SCC 592, Gurpreet Singh v. State of Punjab

(2005)12 SCC 615 and Vijaya Singh v. State of Delhi

(2012)8 SCC 763. The second category of cases contained

cases where conviction of the accused was upheld but

sentence modified. The judgments in this regard relied on

were Satish v. State of M.P. (2009)14 SCC 187 and

Dharambir v. State (NCT of Delhi) (2010)5 SCC 344. The 3rd

category of cases contained the cases where conviction

and sentence were set aside and the entire case was

remitted back to Juvenile Justice Board for disposal in

accordance with law. The judgments referred to in the

third category is Hari Ram v. State of Rajasthan (2009)13

SCC 211 and Daya Nand v. State of Haryana (2011)2 SCC

224. The 4th category of cases included cases where

sentences were upheld and the records were directed to be

placed before the Juvenile Justice Board for awarding

suitable punishment to the appellant. The judgment

referred in this regard is Ashwani Kumar Saxena v. State

of M.P. (2012)9 SCC 750. After referring to all the said

judgments, in paragraph 28, it was observed by the

Hon'ble Supreme Court as follows:

"28: The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the

innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence."

In paragraph 29, the Hon'ble Supreme Court referred to

Section 20 of JJ Act, 2000 and in paragraph 30 it was

observed as follows:

"Para.30. It is clear that the case of the juvenile has to be examined on merits. If it is found that the juvenile is guilty of the offence alleged to have been committed, he simply cannot go unpunished. However, as the law stands, the punishment to be awarded to him or her must be left to the Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act.2000. This is the plain requirement of Section 20 of the Juvenile Justice (Care and Protection of Children)Act,2000. In other words, Ashwani Kumr Saxena should be followed."

Thus the sum and substance of the said finding was that

in such cases the question of conviction has to be

decided on merits and the matter has to be referred to

the Juvenile Justice Board for passing appropriate orders

on sentence in accordance with the provisions of JJ Act,

2000.

12. However, we notice that the finding of the

Hon'ble Supreme Court in the said judgment was mainly

based on Section 20 wherein, even in respect of cases in

which offence was committed by the juveniles coming

within the meaning of Section 2(k) of the Juvenile

Justice (Care and Protection of Children)Act, 2000 prior

to the enactment of said Act, the proceedings could be

continued by the respective courts upto the point of

conviction and interference warranted was only upon the

sentence. In such cases, the sentence could be awarded

only by the Juvenile Justice Board. We notice that in

paragraphs 81 and 82 of Jitendra Singh's case (supra),

absence of stipulation as to the necessity to set aside

the conviction in Section 7A of the Act is specifically

referred to and by applying the maxim expressio unius est

exclusio alterius, it was held that, since it is not

stipulated in section 7A(2) to set aside the conviction,

the sentence alone need to be set aside, if the claim of

juvenility is found to be sustainable. The aforesaid

paragraphs are extracted hereunder:

"81. The matter can be examined from another angle, Section 7-A(2) of the Act prescribes the procedure to be followed when a claim of juvenility is made before any court, Section 7-A(2) is as under: "7-A. Procedure to be followed when claim of juvenility is raised before any court-(1) (2)If the court finds a person to be a juvenile on the date of commission of the offence under sub- section(1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."

82. A careful reading of the above would show that although a claim of juvenility can be raised by a person at any stage and before any court, upon such court finding the person to be a juvenile on the date of the commission of the offence, it has to forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed shall be deemed to have (sic no) effect. There is no provision suggesting, leave alone making it obligatory for the court before whom the claim for juvenility is made, to set aside the conviction of the juvenile on the ground that on the date of commission of the offence he was a juvenile, and hence not triable by an ordinary criminal court. Applying the maxim expressio unius est exclusion alterius, it would be reasonable to hold that the law insofar as it requires a reference to be made to

the Board excludes by necessary implication any intention on the part of the legislature requiring the courts to set aside the conviction recorded by the lower court. Parliament, it appears, was content with setting aside the sentence of imprisonment awarded to the juvenile and making of a reference to the Board without specifically or by implication requiring the court concerned to alter or set aside the conviction. That perhaps is the reason why this Court has in several decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7- A(2) of the Act."

However we notice that, in paragraph 72 of Jitendra

Singh's case (supra), it was observed that there was no

challenge in that case as to the conviction recorded by

the courts below. The aforesaid observations are

extracted hereunder:

"72. The upshot of the above discussion is that while the appellant was above 16 years of age on the date of the commission of the offence, he was certainly below 18 years and hence entitled to the benefit of the 2000 Act, no matter the later enactment was not on the statute book on the date of the occurrence. The difficulty arises when we examine whether the trial and the resultant order of conviction of the appellant would also deserve to be

set aside as illegal and without jurisdiction. The conviction cannot however be set aside for more than one reason:

72.1. Firstly, because there was and is no challenge to the order of conviction recorded by the courts below in this case either before the High Court or before us. As a matter of fact the plea of juvenility before this Court by way of an additional ground stopped short of challenging the conviction of the appellant on the ground that the court concerned had no jurisdiction to try the appellant.

72.2. Secondly, because the fact situation in the case at hand is that on the date of the occurrence i.e. on 24-5-1988 the appellant was above 16 years of age. He was, therefore, not a juvenile under the 1986 Act that covered the field at that point of time, nor did the 1986 Act deprive the trial court of its jurisdiction to try the appellant for the offence he was charged with. The repeal of the 1986 Act by the 2000 Act raised the age of juvenility to 18 years. Parliament provided for cases which were either pending trial or were, after conclusion of the trial, pending before an appellate or a revisional court by enacting Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which is to the following effect:"

Thus the observation in the said judgment would clearly

indicate that even though there was no challenge against

the conviction in the said case, the Hon'ble Supreme

Court considered the necessity to set aside the question

of conviction in the light of the stipulation contained

in Section 20 of the Act. However, we notice that, the

said observations were made by the Honourable Supreme

Court in a case where, the accused was above 16 years of

age and below 18 years of age. In paragraph 80 of the

said judgment, it was observed as follows:

"Para 80: The settled legal position, therefore, is that in all such cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in court concerned will continue and be taken their logical end except that the court upon finding the juvenile guilty would not pass an order of sentence against him. Instead he shall be referred to the Board for appropriate orders under the 2000 Act. Applying that proposition to the case at hand the trial could and the High Court could and indeed were legally required to record a finding as to the guilt or otherwise of the appellant. All that the courts could not have done was to pass an order of sentence, for which purpose, they ought to have referred the case to Juvenile Justice Board"

It is to be noticed that the observations contained

therein were specifically with respect to the accused who

was above the age of 16 years but below 18 years as on

the date of occurrence. What can be gathered from the

above observations is that, the principles laid down by

the Honourable Supreme Court in Jitendra Singh, confining

the order in setting aside the sentence alone, were made

in respect of cases where section 20 of the JJ Act, 2000

was applicable and the question of lack of jurisdiction

of the regular criminal courts in conducting trial was

never an issue. The said judgment was followed in

subsequent judgments. We have taken into consideration

the decisions in Upendra Pradhan v. State of Orissa

[(2015)SCC 124], Abdul Razzaq v. State of U.P. [(2015)15

SCC 637], Sri.Ganesh v. State of Tamil Nadu and Another

[(2017(3)SCC 280], Raju v. State of Hariyana (AIR 2019 SC

1136), Ashok Kumar Mehara and another Vs State of Punjab

[(2019) 6 SCC 132] and Devilal and others v. State of

Madhya Pradesh (AIR 2021 SC 2479).

13. We notice that, decisions which are brought to

our notice in this regard, were cases in which the date

of occurrence of the offence was prior to JJ Act, 2000.

Therefore, all the said cases were coming within the

ambit of Section 20 thereof, which specifically conferred

jurisdiction upon the regular criminal courts to proceed

with until the point of adjudication of guilt of the

accused. The applicability of JJ Act, 2000 was confined

to the imposition of sentence alone.

14. From the above judgments, it can be gathered

that all these judgments were rendered in respect of

cases in which the Juvenile Justice Act, 2000 was made

applicable even though the offences were committed prior

to the date of enactment of Juvenile Justice Act, 2000.

It is also to be noted that, in all those cases the

accused were aged above 16 years and below 18 years as on

the date of incident and therefore, all of them would

clearly come under the ambit of Section 20 of Juvenile

Justice Act, 2000. In such circumstances, as held by the

Honourable Supreme Court, the question of sentence alone

was under consideration. In any none of the said cases,

the question of lack of jurisdiction of the regular

Criminal Courts for trying such accused arose presumably

because, all those accused were above 16 years of age as

on the date of incident and the date of occurrence was

prior to the enactment of Juvenile Justice Act, 2000.

Since the age of juvenility contemplated under Section

2(h) of Juvenile Justice Act, 1986 was 16 years as far as

a boy is concerned, the courts which conducted trial and

arrived at the finding of guilt, would not be lacking

jurisdiction. As the rights, liabilities and culpability

of a person must be determined on the basis of the law as

it stands at the time of commission of crime, all the

said courts were having jurisdiction to try the said

offence, since the age of the said accused was above 16

years as on the date of commission of the crime. In the

2000 Act, even though age of juvenility for both male and

female was fixed as 18 years, the crucial aspect to be

noticed is that, even while enhancing the age of

juvenility and making the said age applicable to even the

pending cases, the legislature provided a specific

authorization to the courts concerned, to proceed with

the trial up to the point of conviction, by virtue of

Section 20 thereof, to proceed with the trial till the

adjudication of guilt.

15. We cannot but notice, in section 7A(2) it was

clearly specified that, if the accused was found to be

child (as defined in section 2(k) of JJ Act, 2000) as on

the date of commission of the offence, the sentence, if

any, passed by the court shall have no effect. In all the

judgments discussed above, the Honourable Supreme Court

was interpreting the provisions in JJ Act, 2000 and

laying down the principles to be applied in the cases

coming under the said provisions. In short, the

conclusion possible is that the principles laid down as

above by the Honourable Supreme Court, are to be applied

in respect of the cases to which provisions of JJ Act,

2000 is applicable. The relevance of the said conclusion

in this case is because of the fact that, Juvenile

Justice (Care and Protection of Children) Act, 2000,

stands repealed upon enactment of Juvenile Justice (Care

and Protection of Children) Act, 2015, (hereinafter

referred to as JJ Act, 2015),with effect from 01.01.2016.

16. In this case, the date of commission of the

offence is 14.08.2016. As per Section 1(ii) of the JJ

Act, 2015, the JJ Act, 2000 was repealed and the new Act

came into force with effect from 01.01.2016. By virtue of

repeal of the earlier Act and introduction of JJ Act,

2015, the proceedings against the appellant should have

been under the provisions of JJ Act, 2015. From the

provisions contained in the new Act, it can be gathered

that Section 9 of the said Act enables the appellant to

raise the claim of juvenility at any point of time, even

after the disposal of the case. The appellant herein has

raised such a claim upon which we conducted an inquiry

and found that his claim is true. In such circumstances,

the question that emerges is whether the principles laid

down by the Honourable Supreme Court as mentioned above,

are applicable in the facts of this case, to which,

provisions of JJ Act, 2015 alone is applicable. It is

true that Sub Section (iii) of Section 9 of JJ Act, 2015

provides about the impact of finding of juvenility only

upon the sentence, which provision is similarly worded as

that of section 7A (2)of JJ Act, 2000. However, a

comparison of the scheme of both the said enactments

reveals that the JJ Act, 2015, is more child friendly

and extended far more safeguards and emphasized still

more on child rights, than provided in JJ Act, 2000. The

nature of objects of the JJ Act, 2015, are clearly

evident from section 3 thereof, which contemplates the

principles to be followed by the courts and the Boards

while implementing the provisions. The said provision

reads as follows:

"3. The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:--

(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.

(ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights.

(iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.

(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.

(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities

of children and the need for intervention under this Act.

(viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child.

(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.

(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.

(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.

(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.

(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio- economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.

(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.

(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons

or bodies, acting in a judicial capacity under this Act."

17. In JJ Act, 2000, there is no provision

corresponding to section 3 of JJ Act, 2015. In our view,

inclusion of the said laudable principles in the statute

itself clearly indicates the importance to be given to

the principles mentioned therein while interpreting and

implementing the provisions of the Act. In such

circumstances, the provisions of JJ Act, 2015, have to be

considered strictly, by adopting interpretations

advancing the interests of the child. In view of the

above, the stipulation in section 9(3) of JJ Act, 2015 of

"the sentence, if any, passed by the court shall be

deemed to have no effect"; it is to be considered keeping

the above objectives in mind, i.e by affording a strict

construction advancing the interest of the juveniles. In

our view, the said objectives can be achieved only if

section 9 (3) is interpreted by reading the enactment as

a whole. As per Section 8 of JJ Act, 2015, Juvenile

Justice Board constituted under Section 4 of the Act is

given exclusive powers to deal with the proceedings under

this Act. Section 6 of JJ Act, 2015 mandates that any

person who has not completed the age of 18 years shall be

treated as a child for the purpose of inquiry and such

inquiry has to be conducted by the Juvenile Justice Board

in the manner as prescribed in the 2015 Act. The obvious

conclusion that can be drawn from the above statutory

scheme of the JJ Act, 2015 is that all persons below the

age of 18 years who commit a crime after its enactment,

have to be exclusively dealt with by the Juvenile Justice

Board alone and the regular criminal courts do not have

any jurisdiction for the same. In the light of the above

statutory provision, the trial, if any, conducted in

respect of a person who has not attained the age of 18

years as on the date of commission of crime can only be

held to be a trial without any jurisdiction and therefore

a nullity. We also notice that Section 23 of JJ Act, 2015

contemplates that, notwithstanding anything contained

under Section 223 of Cr.P.C or in any other law for the

time being in force, there shall be no joint proceedings

of a child alleged to be in conflict with law with a

person who is not a child. However, section 23 does not

have any applicability in the facts of this case, as the

trial conducted is not a joint trial. We referred to the

said provision only for completeness of the discussion on

the legal principles emanating from the scheme of the

Act, as the said provision clearly postulates another

circumstance which makes the trial vitiated, in cases

where the juvenile is tried along with an accused who is

a major as on the date of occurrence of crime. Thus the

statutory scheme as is evident from the above provisions

clearly indicate lack of jurisdiction upon the regular

criminal courts to try an offence committed by a person

who has not attained the age of 18 years as on the date

of commission of crime. As mentioned above, while

arriving at this conclusion we are conscious of the fact

that, section 7A(2) of the JJ Act, 2000 is the

corresponding provision of section 9(3) of JJ Act, 2015

and both are similarly worded. Nevertheless, taking into

account the laudable objectives of the JJ Act, 2015 as

revealed from the principles categorically mentioned in

Section 3 thereof, the provisions of the Act, 2015 have

to read as a whole, while dealing with the criminal

proceedings against a juvenile and implementing the

mandate of section 9(3) thereof. Interpreted in any other

manner a trial conducted in a regular Court by reason of

the accused having not raised the question of juvenility

or by a mistake, would result in the child in conflict

with law being treated differently and in violation of

the beneficial provisions of the JJ Act. It is the duty

of the persons who apprehend the child in conflict with

law and the Courts before whom he/she is brought to

conduct an enquiry as to the juvenility or otherwise.

Hence, the provision enabling the child in conflict with

law to raise that question at any stage and even after

the trial is over and conviction is ordered and sentence

imposed.

18. In the light of the above discussion, the trial

conducted in this case is held to be without

jurisdiction. As mentioned above, on the basis of the

inquiry conducted as per our orders, it is found that the

appellant was a juvenile as on the date of commission of

offence. In such circumstances, as the finding of guilt

and consequent conviction of the appellant was without

any jurisdiction, the only order that can be passed by

this Court is to set aside the conviction and consequent

sentence.

19. In this case, we notice from the records that

the appellant is under detention since the date of his

arrest which was on 15.08.2016. In the judgment passed by

the Sessions Court, the period of detention undergone by

him as an under-trial prisoner from the above mentioned

date was directed to be set off against the period of

sentence imposed upon him. The appellant has already

undergone imprisonment for more than five years as on

today. Section 18 of the JJ Act, 2015 provides for the

orders that can be passed against the child found to be

in conflict with law. We notice that the maximum

punishment that can be imposed upon such a juvenile is to

keep him in a Special Home for a period not exceeding

three years. As we mentioned above, the petitioner in

this case has already undergone imprisonment for about

five years. In Raju v. State of Haryana [(2019) 14 SCC

401], the Honourable Supreme Court passed an order

directing release of the juvenile who has already spent

six years in prison, on the ground that the maximum

period for which a juvenile may be sent to Special Home

is only three years as per Section 15(i) (g) of Juvenile

Justice Act, 2000. Section 18 of JJ Act, 2015 is the

corresponding provision of Section 15 of Juvenile Justice

Act, 2000. Both the above provisions are worded in

exactly similar manner and the observations of the

Honourable Supreme Court in Raju's case (supra) is

clearly applicable to this case. In the above

circumstances, as we find that the trial conducted by the

Sessions Court in this case in S.C.No.259/2017 is without

any jurisdiction, the findings entered into by the Court

concerned have to be set aside. Resultantly, the

conviction imposed upon the appellant and also the

sentence passed thereon are hereby set aside. Since the

appellant had already undergone imprisonment for more

than five years until this day, we are of the view that

the appellant has to be set at liberty by following the

principles laid down by the Honourable Supreme Court in

Raju's case (supra). Accordingly, it is directed that the

authorities concerned shall forthwith release the

appellant unless his presence is required in connection

with any other case.

The Appeal is allowed.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

ZIYAD RAHMAN A.A., JUDGE

pkk.

APPENDIX OF CRL.A 201/2021

APPELLANT'S ANNEXURE ANNEXURE 1 : A TRUE COPY OF THE SCHOOL LEAVING CERTIFICATE DATED 24.04.2011 OF THE PETITIONER COURT EXHIBITS:

EXHIBIT C1: A TRUE COPY OF THE EXTRACT OF THE ADMISSION REGISTER MAINTAINED BY GOPINATHPUR UPPER PRIMARY SCHOOL, RAMPUR TALUK, KALAHANDI DISTRICT IN ORIYA LANGUAGE.

EXHIBIT C2: A TRUE COPY OF THE ENGLISH TRANSLATION OF THE RELEVANT ENTRY RELATING TO THE APPELLANT AS CONTAINED IN EXT.C1.

EXHIBIT C3: A TRUE COPY OF THE COMMUNICATION DATED 2.8.2021 ISSUED BY THE INSPECTOR IN-CHARGE, RAMPUR POLICE STATION ADDRESSED TO THE SUPERINTENDENT OF POLICE, KALAHANDI

EXHIBIT C4: A TRUE COPY OF THE COMMUNICATION DATED 2.8.2021 ISSUED BY THE SUPERINTENDENT OF POLICE, KALAHANDI ADDRESSED TO THE SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, KALAHANDI.

EXHIBIT C5: A TRUE COPY OF THE COMMUNICATED DATED 4.8.2021 ISSUED BY THE SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, KALAHANDI TO THE ASSISTANT SECRETARY, ODISHA STATE LEGAL SERVICES AUTHORITY, CUTTACK

EXHIBIT C6: A TRUE COPY OF THE COMMUNICATION DATED 9.8.2021 ISSUED BY THE MEMBER SECRETARY, ODISHA STATE LEGAL SERVICES AUTHORITY ADDRESSED TO THE MEMBER SECRETARY, KERALA STATE LEGAL SERVICES AUTHORITY

EXHIBIT C7: A TRUE COPY OF THE COMMUNICATION DATED 10.8.2021 ISSUED BY THE MEMBER SECRETARY, KERALA STATE LEGAL SERVICES AUTHORITY.

// TRUE COPY// SD/- P.S. TO JUDGE