IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 1378 of 2009(L) ------------------------------------ PETITIONER(S): ---------------------- LATHIKA KRISHNAN, W/O. KRISHNANKUTTY C.S., KRISHNALAYAM, THOTTABHAGAM P.O., THIRUVALLA. BY ADV. MR.R.GIREESH VARMA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURM. 2. JAIL SUPERINTENDNET, CENTRAL JAIL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 1378 OF 2009 = = = = = = = = = = = = = = = Dated this the 2nd day of March, 2009. J U D G M E N T This writ petition is filed with a prayer to declare that the petitioner's son is a juvenile as per S.2(k) r/w S. 7A of the Juvenile Justice(Care and Protection of Children) Act 2000 and to declare that the sentence imposed on the said juvenile by the judgment in S.C.54/94 upheld by this Court in Crl.A.441/95 is of no effect in view of S.7 A(2) of the Juvenile Justice Act and to issue a writ of mandamus directing respondents to produce the petitioner's son before the Juvenile Justice Board for passing appropriate orders. 2. The petitioner's son was the third accused in S.C.54/94 and he along with others was tried for offences punishable u/Ss.302, 394, 449, 120(B) r/w S.34 IPC and found guilty on several accounts including one u/s 302. The matter was taken up before this Court in appeal and this Court in appeal confirmed the conviction and only directed W.P.C 1378 OF 2009 -:2:- that the sentences shall run concurrently. A perusal of the said judgment would reveal that the case had been proceeded on the basis as per the then existing law. He had crossed the age of 15 but not 18 and therefore he was proceeded as an ordinary accused in a criminal case and thus convicted and sentenced. Now this writ petition is filed to quash the above judgments on the ground that it will have no legal effect in the light of the law and amendments under the Juvenile Justice Act. It is submitted that the date of birth of the person is 27.5.1976 and the incident took place on 12.12.1993 whereby it indicates that he has not completed the age of 18 years on the date of incident. This Court did have the opportunity to consider such a situation in the decision reported in Selvi v. State of Kerala 2008(4) KLT 329. This Court on a consideration of the entire materials found that the High Court has jurisdictional competence u/s 6(2) to exercise powers of the Board and grant relief if the Court is satisfied that the Board can grant relief. Then referring to S.7A of the Juvenile Justice(Care and Protection W.P.C 1378 OF 2009 -:3:- of Children) Act, 2000 this Court held that the question of juvenility can be raised at any stage even after the final disposal of the case. It was also held that S.7A(2) of the Act declares that the crucial finding to be rendered is whether the juvenile was a juvenile in conflict with law as per the amended S.2(1) of the Act on the date of commission of offence. It is declared unambiguously again in S.7(A) 2 of the Act that juvenility has to be ascertained on the date of commission of the offence. Once the juvenility is found to be under the age of 18 years on the date of commission of offence it was held that the sentence passed on him will have no effect. The proviso makes it clear that the case of such a juvenile in conflict with law undergoing a sentence of imprisonment can be reviewed even when such juvenile has ceased to be a juvenile on or before the commencement of the Act. Thus speaking about S.64 this Court held that explanation to S.64 of the Act which along with the proviso was introduced after the amendment reiterates that while undertaking such review also the issue of juvenility must be W.P.C 1378 OF 2009 -:4:- decided in terms of the amended S.2(1) of the Act. It is not possible to specifically explain why such an expression has been used in the Explanation by the legislature. Then the Court further held what is the maximum period referred to in the Explanation to S.64. S.15 really does not refer to any sentence. But it does refer to certain periods in S.15(1)(e), (f) and (g) and all those show that the period cannot exceed three years. Under S.15 (1)(e) and (f) he can be released on probation and stay in any fit institution for a maximum period of 3 years. Under S.15(1)(e) and (f) he can be sent to the special home for a period of 3 years. So this Court held that Explanation to S.64 must be reckoned as the maximum period of three years. 3. So far as this case is concerned he is in jail for more than three years and it is also concluded that he is a juvenile from the date of commission of the offence. Therefore the writ petition is disposed of as follows. (1) It is declared that the juvenile Latheesh K.K, son of the petitioner, accused in S.C.54/94 of the Sessions Court, W.P.C 1378 OF 2009 -:5:- Pathanamthitta was a juvenile in conflict with law as per S.3 (1) of the Amended Act on the date of offence, i.e. on 12.12.93. (2) It is declared that subsequently the sentence imposed on the said juvenile by judgment in S.C.54/94 upheld by this Court in Crl.A.441/95 is of no effect u/s 7A(2) of the Act. (3) Reviewing the case of the juvenile u/s 64 of the Act it is directed that he be released from custody forthwith if his detention is not required in any other case. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-