1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.233/2011 Ramu : Petitioner Vs. 1.The Inspector of Police, Kadayam Police Station, Tirunelveli District. 2.The Superintendent of Central Jail, Palayamkottai, Tirunelveli District : Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to quash the sentence passed in SC.No.39/1998 dated 08.12.1999 by the I Additional Sessions Court, Tirunelveli and confirmed by this Court by judgment dated 07.01.2008 in CA.No.474/2000 and to set at liberty the convict, the petitioner's husband, Mani, S/o.Pattamuthu from the Central Jail, Palayamkottai forthwith. For petitioner : Mr.P.Ramasamy for Mr.N.Palavesam For respondents : Mr.C.Ramesh, APP ORDER (Order of the Court was made by ARUNA JAGADEESN, J.) This Habeas Corpus Petition is filed by the wife of the detenu to quash the sentence passed in SC.No.39/1998 dated 08.12.1999 by the I Additional Sessions Court, Tirunelveli and confirmed by this Court vide judgment dated 07.01.2008 in CA.No.474/2000 and to set at liberty the convict/petitioner's husband, Mani, S/o.Pattamuthu from the Central Jail, Palayamkottai forthwith. The appeal has been disposed of and the detenu is undergoing imprisonment. The detenu having not completed the age of 18 years on the date of occurrence, the plea of juvenility has been raised in this Habeas Corpus Petition. 2. On hearing the arguments of the learned counsel for the petitioner, this court thought fit to call for report from the learned Sessions Judge, Tirunelveli as to the age of the detenu and directed the learned Sessions Judge, Tirunelveli to determine the age of the detenu by following the procedures as per law. Accordingly, a report has been submitted by the learned Additional Sessions Judge, Tirunelveli and the report revealed that the detenu was born on 08.05.1981 and on the date of occurrence i.e. on 13.10.1997, he had completed only 16 (sixteen) years 5 (five) months and 5 (five) days and therefore, he has not completed 18 years of age. https://hcservices.ecourts.gov.in/hcservices/ 2 3. It is the contention raised on behalf of the detenu that the detenu is entitled to the benefits of the provisions of the Juvenile Justice (Care and Protection of Children Act, 2000 as amended by Act 33/2006 (hereinafter referred to as the Act), since he was a juvenile in accordance with the definition of the said term found in the Act, inasmuch as he had not completed the age of 18 years as on the date of the commission of the offence, for which he was prosecuted and convicted. It is the contention of the petitioner that though the case might have been disposed of and the appeal has been concluded, if it is found that the detenu was a person having not completed the age of 18 years as on the date of the occurrence, then at any point of time before any court, the plea of juvenility can be raised and necessary relief can be sought for. He also fairly conceded that though the appeal filed by the detenu against conviction was disposed of on 07.01.2008, but the plea of juvenility was not raised by the learned counsel who appeared for the detenu in CA.No.474/2000. He would contend that although this aspect of the matter was not brought to the notice of this court while the matter was heard and disposed of on 07.01.2008 in Crl.A.No.474/2000, but the fact remains that the detenu was a juvenile at the time of commission of the offence. Therefore, the detenu was entitled to the benefits of the Act. He would submit that if a person accused of committing an offence was below the age of 18 years as on the date of commission of the offence, such a person shall be entitled to the benefits of the Act. It is clear that the plea of juvenility can be taken before any court at any stage of the proceedings and that such a claim can be made even after the disposal of the case. 4. In support of his contention, the learned counsel relied on the decisions of the Honourable Supreme Court reported in 2005-SCC-Crl-778 (Upendra Kumar Vs. State of Bihar), 2005-SCC-Crl-742 (Pradap Singh Vs State of Jarkant and another), 2010-5-SCC-344 (Darambeer Vs State of (NCT of Delhi) and another) and this court in the unreported judgements in HCP.No.No.223/2008 dated 8.7.2008 (Chendu Vs. The Superintendent of Central Jail, Palayamkottai and another) and HCP.No.163/2010 dated 19.7.2010 (Santhanam Vs. The Inspector of Police, Ambasamudram Police Station and another). 5. It is brought to the notice of this court a recent decision of the Division Bench of the Principal Bench of this court reported in 2011- 3-MLJ-Crl-433 (A.Chinnaponnu vs. State of Tamil Nadu and others), wherein the Division Bench, while dealing with the claim of juvenility raised by the detenu in a Habeas Corpus Petition, directed the Juvenile Justice Board to review the case of the detenu by conducting an enquiry as to his age on the date of occurrence and pass necessary orders in accordance with the provisions of the Act. But, it is relevant to point that the age of the detenu was not determined in the above said case, though the age certificate produced by the detenu was found to be genuine. In such circumstances, the Division Bench in the decision cited supra directed the Juvenile Justice Board to review the case of the detenu by conducting an enquiry as to his age as on the date of the occurrence and pass orders in terms of the Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and to grant the relief in terms of Section 64 read with Sections 15 and 16 of the Juvenile Justice (Care and Protection https://hcservices.ecourts.gov.in/hcservices/ 3 of Children) Act, 2000 as amended by Act 33/2006. The relevant passage is extracted below:- “19. Of course, no material has been placed to show that any representation was made to the Government or the Juvenile Justice Board. However, Rule 98 contemplates review of the cases of juvenile by the Government or the Juvenile Justice Board, either suo motu or on an application. Hence, this court is of the view that it shall be just and proper to dispose of this Habeas Corpus Petition directing the Juvenile Justice Board, Salem to review the case of the detenu Velu @ Velmurugan by conducting an enquiry regarding his date of birth and age as on the date of occurrence and pass necessary orders in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by Act 33 of 2006 and the rules made thereunder.” 6. However, now a latest decision of the Division Bench of this Court made in a batch of Habeas Corpus Petitions in HCP(MD)No.828/2010 by order dated 01.07.2011 is brought to the notice of this court. In the said decision, the Division Bench, after discussing the various decisions of the Honourable Supreme Court and various provisions of the Juvenile Justice Act and Rules, has held that having found that a person, who claims juvenility at the time of occurrence, is in fact a juvenile, no purpose would be served in sending him back either before the Government or before the Board for them to review and pass orders either under sub sec.(2) of Sec.7(A) or under Sec.64 of the Act or under Rule 98 of The Juvenile Justice (Care and Protection of Children) Rules, 2007 and that the writ jurisdiction is to be exercised in cases where the remedy otherwise is not efficacious. It observed that efficacy would also include not requiring a different body to pass orders upon decisions already arrived at by this Court and that once this Court has arrived at a decision that the detenu was a juvenile and completed the age of 18 years, it may by itself pass suitable orders rather than require a different body to pass such order. It held in paragraphs 11, 12, 13, 14, 17, 18 and 19 as below:- “11.It is to be noted that Section 64 of the Act 2000 deals with a situation where a juvenile in conflict with law is already undergoing the sentence at the time of commencement of the Act. The cummulative effect of Section 2(k)(l), 7(A) and 20 is that the benefit under the Act 2000 is retrospective and the Juvenility is to be reckoned as per Section 2(k)(l) of the Act even prior to the commencement of the Act 2000. In other words, if a person was considered as adult i.e., completed age 17 and not completed 18, under the old Act, and if he is undergoing an imprisonment the Juvenility has to be considered only in accordance with the Act 2000 i.e., he has to be considered only as Juvenile as he has not completed the age of 18 and Section 64 of the Act has to be pressed into service. However, the explanation to Section 64 would provide that in all cases where a Juvenile in conflict with law is undergoing sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility shall be deem to be decided in terms of Section 2(l) and accordingly, he shall be sent to the special home or a reputed institution for the remainder of the period of the https://hcservices.ecourts.gov.in/hcservices/ 4 sentence but such sentence shall not in any case exceed the maximum period provided in Section 15 of the Act. 12.Under Section 15 of the Act, the maximum period prescribed for detaining in a special home or in a fit institution is only 3 years. Therefore, if any person claims juvenility at any stage even after final disposal of the case, the juvenility will be determined on an enquiry and if it is found that he was a juvenile as per Section 2(k) and (l) of the Act 2000 at the time committing the offence and if he is undergoing a sentence, Section 64 has to be applied and if it is found that he has already undergone the maximum period of 3 years he must be set at liberty. 13. It is true that in all the reported cases decided by the Hon'ble Supreme Court, the plea of juvenility was raised in pending appeal cases. There is no decision of the Hon'ble Supreme Court regarding the plea of juvenility raised after the disposal of the case. Therefore, the only question before us is, in a disposed off case, which is the forum in which such claim can be raised. 14. As stated earlier, Sec.7(A) of the Act provides that the juvenility can be raised before any court at any stage i.e., even after disposal of the case. Sec.64 deals with a situation where a juvenile in conflict with law is already undergoing the sentence at the time of commencement of the Act. 17. However, the forum, in which a claim of juvenility, is to be made is also dealt with in the Amended Sec.7(A) of the Act. In other words, Sec.7(A) empowers any person or a juvenile to raise a claim of juvenility before 'any Court' and at 'any stage', even after final disposal of the case which, in our considered view, includes invoking the writ jurisdiction under Article 226 of the Constitution of India by way of filing Habeas Corpus Petition. This view is fortified by the word mentioned in Sec.7(A) “any court” which is necessarily be a Court other than the Board”. Moreover any contravention of Sec.15 of the Act, namely, detention beyond three years is to be treated as illegal detention. 18. Therefore, in our considered view, this Court has ample power under Article 226 of the Constitution of India to exercise implementation of the provisions of The Juvenile Justice (Care and Protection of Children) act, 2000 and the rules thereon. 19. Having found a person, who claims juvenility at the time of occurrence, is in fact a juvenile, no purpose would be served in sending him back to, either before the Government or before the Board for them to review and pass orders either under sub sec.(2) of Sec.7(A) or under Sec.64 of the Act or under Rule 98 of The Juvenile Justice (Care and Protection of Children)Rules, 2007. It is to be remebered that writ jurisdiction is exercised also in cases where the remedy https://hcservices.ecourts.gov.in/hcservices/ 5 otherwise is not efficacious. Efficacy would also include not requiring a different body to pass orders upon decisions already arrived at by this Court. Once this Court has arrived at a decision, it may by itself pass suitable orders rather than require a different body to pass such order.” 7. In the instant case, admittedly the age of the detenu on the date of the commission of the offence was 16 years 5 months and 5 days only and now he is aged about 30 years and he has now completed five years of imprisonment. Therefore, as per the Act and the Rules, it is quite clear that he was a juvenile on the date of occurrence. Further, the plea of juvenility has not been admittedly raised while disposing of the appeal by the appellate court. As per the ratio laid down by the Honourable Supreme Court and this Court in the decisions cited supra, the claim of juvenility may be raised before any court at any stage even after the final disposal of the case and such a claim is to be determined in terms of the provisions contained in the Act and the Rules made thereunder, even if the juvenile had ceased to do so on or before the date of commencement of the Act and even if the claim of juvenility has been raised after he attained the age of 18 years. Therefore, in view of the fact that the age has been determined by the learned Sessions Judge, Tirunelveli and as it is found that the detenu was a juvenile at the time of commission of the offence and he having completed five years of imprisonment, no purpose would be served in sending him back either before the Government or before the Board to review and pass orders and further detention is not necessary and he is to be set at liberty. 8. In the result, this Habeas Corpus Petition is allowed. The convict prisoner Mani, if continues to be in custody, is directed to be set at liberty forthwith, unless he is required in connection with any other case. Sd/- Assistant Registrar(RTI Act) /TRUE COPY/ Sub Assistant Registrar To 1.The I Additional Sessions Judge,Tirunelveli. 2.The Judicial Magistrate, Ambasamudram. 3.Do-Thro' The Chief Judicial Magistrate, Tirunelveli. 4.The Superintendent of Central Jail, Palayamkottai, Tirunelveli District 5.The Inspector of Police, Kadayam Police Station, Tirunelveli District. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.P.Ramasamy, Advocate SR.No.30278 HCP(MD)No.233/2011 06.09.2011 Asvm/Srcm PA/03.10.2011/5P/8C https://hcservices.ecourts.gov.in/hcservices/