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2017 Supreme(Kar) 1062
IN THE HIGH COURT OF KARNATAKA
B.S. Patil, B.V. Nagarathna, JJ.
Thimma – Appellant
Vs.
State of Karnataka – Respondent
Criminal Appeal No. 1134 of 2003
Decided On : 31-03-2017
For the Appellant : Hasmath Pasha
Headnote:JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 – Section 7-A – Plea of juvenility – It can be raised at any stage – Even when the conviction of accused attained finality, an application is maintainable in determining age of accused. Court should not adopt hyper-technical approach while appreciating evidence. Court to make enquiry by taking such evidence as may be necessary, but affidavit cannot be considered for determining age of accused.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 – Section 7-A – Juvenility – Reference to Board – Accused ceasing to be juvenile on or before commencement of Act – But if found to be juvenile on date of commission of offence, matter has to be referred to Juvenile Justice Board.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 – Section 7-A – Age of accused – Proof – Accused taking plea of juvenility – Trial Court initiating enquiry – But not taking it to logical conclusion – Allegation of overwriting in entry in Transfer Certificate as to date – Certificate mentioning date of birth as 16.8.1983 – In extract of entry written as 16.8.1982 – Offence taking place on 22/23-04-1998 – Therefore, if date of birth is taken as 16.8.1982, even then accused was fifteen years, eight months – If date of birth is taken as 16.8.1983, his age would be fourteen years, eight months – Hence, a juvenile – Trial Court not justified in convicting accused along with other adult offenders.
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 111(2) – Effect of Repeal of 2000 Act – 2000 Act has been replaced by the Act of 2015. However, under Section 111(2) of the 2015 Act, it is stated that notwithstanding the repeal of the 2000 Act, anything done or any action taken under the said Act shall be deemed to have been taken under the corresponding provisions of the 2015 Act, it is noted that the application in the instant case has been filed under Section 7-A of the 2000 Act on 13.10.2014 and therefore the application has been considered under 2000 Act.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 – Section 111(2) – Effect of Repeal of 2000 Act – 2000 Act has been replaced by the Act of 2015. However, under Section 111(2) of the 2015 Act, it is stated that notwithstanding the repeal of the 2000 Act, anything done or any action taken under the said Act shall be deemed to have been taken under the corresponding provisions of the 2015 Act, it is noted that the application in the instant case has been filed under Section 7-A of the 2000 Act on 13.10.2014 and therefore the application has been considered under 2000 Act.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007 – Rule 12 – Determination of age of accused – Enquiry under Section 7-A of Act – Expression 'any other documentary' as found in sub-rule (5) is not restricted by certificate mentioned in sub-rule (3).
INDIAN PENAL CODE, 1860 – Section 302 r/w Section 149 – Conviction under – Accused raising plea of juvenility – Trial Court initiating enquiry, but not making reference in its order whether issue as to age of accused was examined by it – Thus, enquiry not taken to its logical conclusion – Proceeding to convict appellant after trying him along with other adult offenders – Evidence on record showing appellant to be juvenile on date of commission of offence – Thus, there has been miscarriage of justice – Conviction de hors provisions of JJ Act is illegal – Appellant can no longer be detained pursuant to conviction – Hence, ordered to be released.
I.A. 1 of 2014
1. By judgment and order dated 07.12.2007 this criminal appeal along with other connected appeals namely, Criminal Appeal Nos. 1130/2003, 1131/03, 1132/03 and 1133/03 were disposed of by confirming the conviction recorded by the trial Court on 22.3.2003, but by reducing the sentence of fine from Rs. 35,000/- to Rs. 5,000/-. The said judgment and order has attained finality. Now, an application has been filed under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as "the Act") by raising the question of juvenility of the appellant as on the date of the commission of the offence and therefore, a prayer is sought for holding an enquiry, and for the application being disposed in accordance with law.
2. According to the appellant/accused, the offence said to have been committed by him was on the night of 22/23.04.1998. He was arrested on 9.10.1999. As on the date of commission of the offence, as also on the date of his arrest, the appellant claims to be a juvenile below sixteen years of age, as his date of birth is 16.8.1983. According to him, the issue regarding his juvenility was not considered before the trial Court or before this Court during the pendency of the appeal as he was unable to engage an Advocate, and was defended before both the Courts by an Advocate provided by the Legal Services Authority. That he had no opportunity to instruct his Counsel regarding his age and hence before both the Courts the issue of his juvenility as on the date of the commission of the offence was not considered. The appellant has averred that in support of his date of birth being 16.8.1983, admission register of the school could be considered. He has stated that he is a native of Kurubarahalli Village, Kolar Taluk and District. He was admitted to Government Lower Primary School at the said village and at the time of his admission, his date of birth was recorded in the admission register of the said school as 16.8.1983 which is his real date of birth. Thus, on the date of the commission of offence i.e., on 22/23.4.1998, he was only fourteen years, eight months and seven days and was below sixteen years of age and was a juvenile. As per the provisions of the Act, he should have been dealt with and tried by the Juvenile Justice Board, but the trial was conducted by the IV Additional City Civil and Sessions Judge, Mayohall, Bengaluru, in S.C. No. 500/2000, which did not have jurisdiction to try him for the offences said to have been committed under Section 302 of the IPC and sentenced him under that Section read with Section 149 of the IPC. He was sentenced to undergo rigorous imprisonment (R.I.) for life and to pay a fine of Rs. 35,000/- and in default of payment of fine to undergo R.I. for seven months. It is further averred appellant was arrested, he was a young boy of about fifteen years and had no parents and was working as a coolie.
3. It is further averred by the appellant that he could not have been tried along with the other offenders in S.C. No. 500/2000, but had to be dealt with by the Juvenile Justice Board. In the circumstances, he has filed an application under Section 7A of the Act, seeking consideration of his claim of juvenility and for modification of the judgment dated 7.12.2007.
4. We have heard learned, Counsel for the appellant and the learned State Public Prosecutor for the respondent/State and perused the material on record.
5. Learned Counsel for the appellant has submitted a memo containing certain documents including the order sheet; pertaining to S.C. No. 500/2000 of the trial Court. He drew our attention to the order dated 6.10.2000, 7.12.2000 and 23.12.2000 to contend that the trial Court had passed an order directing the appellant to be subjected to examination by the radiologist in order to ascertain his age and a direction was also issu
