IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 36377 of 2007(E) -------------------------- PETITIONER(S): --------------- SELVI , KARUNA BHAVAN KOTTAYAMVUILLA DESOM, VELLARADA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SMT.SANDHYA RAJU SMT.RASHMI RAMESH SMT.P.A.JAIMOLE RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY CHEIF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM. 2. JAIL SUPERINTENDENT CENTRAL JAIL, TRIVANDRUM. BY G.P. SRI. S.U. NAZAR. GOVERNMENT PLEADER SRI. FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36377 of 2007(E): PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE JUDGMENT DATED 1/8/97 PASSED BY THIS HON'BLE COURT IN CRA.NO.332 OF 95. EXT.P2 – TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER OF ST. JOHN'S HIGHER SECONDARY SCHOOL, UNDANCODE DATED 10/10/05. RESPONDENTS' EXHIBITS: ANNEXURE-A – TRUE COPY OF DEPOSITION OF VINOD. ANNEXURE-B – TRUE COPY OF DEPOSITION OF THANKARAJAN. ANNEXURE-C – TRUE COPY OF THE DEPOSITION OF LILY BAI. ANNEXURE-D – TRUE COPY OF DEPOSITION OF YESIAH AND COPY OF KUNDUMBA REGISTER. ANNEUXRE-E – TRUE COPY OF DEPOSITION OF SELVI. ANNEXURE-F – TRUE COPY OF LETTER ISSUED BY THE HEADMASTER. //TRUE COPY// R. BASANT, J. ------------------------------------------------- W.P.(c) No. 36377 of 2007-E ------------------------------------------------- Dated this the 30th day of September, 2008 JUDGMENT One Selvi (the petitioner, hereafter) has come to this Court with a prayer that her son Udayalal (juvenile, hereafter) may be given the benefit of the humane compassion of law which prompted the Parliament to bring in exhaustive amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short `the Act') by Act 33 of 2006 with effect from 22/8/06. Her prayers can be summarised as follows: (i) Declare that the juvenile was a juvenile in conflict with law as per Sec.2(l) of the amended Act on the date of the offence committed by him. (ii) Declare that consequently the sentence imposed on him in the prosecution under Sec.302 IPC must be deemed to be of no effect under Sec.7A(2) of the Act. W.P.(c) No. 36377 of 2007-E -: 2 :- (iii) Review the case of the juvenile and issue appropriate directions under the proviso to Sec.64 of the Act to let free the juvenile. 2. Vital facts first. The juvenile – son of the petitioner, was born on 2/2/1973 as is evident from Ext.P2 – extract of the school admission register. As per the family register maintained by the Church authorities, date of birth of the juvenile is 20/11/72. The offence of murder committed by the juvenile took place on 30/3/1990. Go by the school admission register or the Church family register, the juvenile was below the age of 18 years on the date of occurrence. The juvenile faced trial and by judgment dated 31/3/1995 in S.C.No.246/93, he was found guilty, convicted and sentenced under Secs.302 and 307 IPC to undergo imprisonment for life. The conviction was challenged and in an appeal preferred by the juvenile through jail authorities, a Division Bench of this Court by judgment dated 1/8/97 in Crl.A.No.332/95 confirmed the conviction and sentence. As per the law, as it then stood, the son of the petitioner was not a juvenile/child entitled to any benefit he having crossed the age of 16 years on the date of commission of the offence. He was hence sent to prison and he is serving his sentence now. W.P.(c) No. 36377 of 2007-E -: 3 :- 3. It may not be of crucial relevance; but it deserves to be mentioned that while undergoing imprisonment, he had escaped from prison on 18/11/96 for which he was proceeded against and convicted and sentenced to undergo simple imprisonment for a period of six months. After his escape from prison on 18/11/96, he was recaptured after 1212 days on 15/12/00. He is undergoing imprisonment now as a convict prisoner. 4. It is submitted at the Bar that without being conscious of the earlier appeal filed by the juvenile through prison authorities, a later appeal was preferred in the name of the juvenile by his mother who engaged a counsel and the same was pending as Crl.A.No.2450/06. It is submitted that steps have already been taken to get the said appeal dismissed in the light of the earlier judgment dated 1/8/97 in Crl.A.No.332/95. That appeal now stands dismissed as not pressed, it is now submitted. 5. It will now be apposite to refer to the statutory provisions. The claim of the petitioner is founded on the comprehensive amendments made to the Act by Act 33 of 2006 with effect from 22/8/06. The law at the relevant time – the date of commission of the offence, reckoned a male child to be a juvenile only if he was below the age of 16 years. As per Sec.2 (k) of the Act, “juvenile” is defined to be “a person who W.P.(c) No. 36377 of 2007-E -: 4 :- has not completed eighteenth year of age”. Sec.2(l) of the Act prior to its amendment in 2006 defined a juvenile in conflict with law to be “a juvenile who is alleged to have committed an offence”. The Parliament was obliged to bring in comprehensive amendment to the Act in 2006 after the decision in Pratap Singh v. State of Jharkhand (2005 (3) SCC 551) was pronounced by the Supreme Court. It will now be apposite to refer to the crucial amendments that have been brought about in Secs.2(l), 6, 7A, 20 and 64 of the Act. I extract below the crucially relevant Sections as they now stand: “2(l) “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence; x x x x x x x x 6. Powers of Juvenile Justice Board.--(1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the W.P.(c) No. 36377 of 2007-E -: 5 :- Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. 7A. Procedure to be followed when claim of juvenility is raised before.-- (1) Wherever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the W.P.(c) No. 36377 of 2007-E -: 6 :- offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect. 20. Special provision in respect of pending cases.-- Notwithstanding anything contained in this Act, all proceedings in respect of a 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 if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. 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 W.P.(c) No. 36377 of 2007-E -: 7 :- 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. x x x x x x x x x 64. Juvenile in conflict with law undergoing sentence at commencement of this Act.-- In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent a special home or be kept in fit institution in such manner as the Statement Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the W.P.(c) No. 36377 of 2007-E -: 8 :- case may be, ordered to be kept under protective care under sub-section (2) of section 16 of this Act. Provided that the State Government or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile. Explanation.-- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not be in any case exceed the W.P.(c) No. 36377 of 2007-E -: 9 :- maximum period provided in section 15 of this Act.” (emphasis supplied) 6. A perusal of the relevant provisions of the Act as they stood prior to the 2006 amendment and the amendments brought about in 2006 clearly show the humane concern of the Indian welfare State to the plight of the child below 18 years who is alleged/found to be guilty of crime. Humane humanism which is the bed rock of Indian constitutional idealism is found to manifest in the Act and the 2006 amendment. There was controversy as to whether the juvenility was to be ascertained as on the date of the offence or not, as to whether the benefit of the Act would be available to juveniles who have ceased to be juveniles in pending cases, as to whether the benefit would be available to those who were already convicted and sentenced, as to whether the benefit of the amendments will be available to those who have crossed the rubicon on the date of the Act and as to whether the benefit of the Act can be claimed juveniles who have ceased to be juveniles on 1.4.01 (the date on which the Act came into force) and the proceedings against whom were completed prior to 1.4.01. 7. The 2006 amendment settles all that controversy. It is W.P.(c) No. 36377 of 2007-E -: 10 :- made crystal clear by the 2006 amendment that the benefits of the Act are available to all juveniles who had not completed the age of 18 years on the date of the alleged crime. Whatever the stage – whether the juvenile is facing investigation or trial or whether he is undergoing sentence, the juvenile in conflict with the law – the one who has not completed the age of 18 years on the date of the offence, is now entitled to the compassion of the Act. Even if he has attained the age of 18 years thereafter, whether prior to the amendment Act of 2006 or even prior to the commencement of the Act, such juveniles have been declared to be entitled to the benefit of the Act. The Board and the State have the duty now by even reviewing the concluded cases in which the juvenile is undergoing sentence to make the benefits of the Act as amended available to him. 8. While considering the 3 prayers in this petition this Court must imbibe the legislative purpose and motivation. The interpreter and the adjudicator must identify the legislative dreams, goals and destination. He has to resonate to the frequency and wavelength of the legislature. The wisdom of the legislature has to be respected. The remedy prescribed by the legislature for the malady has to be made available to the deserving. This is the mission before the adjudicator and the W.P.(c) No. 36377 of 2007-E -: 11 :- interpreter. I find no difficulty in concluding from the 2006 amendments that the legislature has wanted to extend the benefits of the Act to all juveniles – who had not attained the age of 18 years on the date of the alleged crime, at whatever stage they be in the pipeline of justice. The benefit is to be extended even to a convict if there are satisfactory reasons. Having so understood the law – the Act as amended in 2006, let us now proceed to consider the 3 questions/prayers referred above. 9. The first question to be decided is whether this Court is entitled to grant the 3 prayers raised. Undoubtedly, the Juvenile Justice Board (for short `the Board’) is the authority to decide the three prayers that have been raised above going by the plain language of the statutory provisions. Learned counsel for the petitioner submits that, in the peculiar facts and circumstances of this case, where the juvenile has been remaining in custody from 1.4.95, this Court may take a proactive view and may not relegate the petitioner and the juvenile to go to the JJ Board which would inevitably delay and postpone the relief to which the juvenile is entitled. It is, in this context, that counsel relies on Sec.6(2) of the Act which I have extracted above. Sec.6(2) of the Act clearly and unambiguously declares that when the proceedings are before the High Court or W.P.(c) No. 36377 of 2007-E -: 12 :- the Court of Session “in appeal, revision or otherwise”, such courts are entitled to exercise the powers conferred on the Board. Learned counsel contends that the powers of this Court, when the matter comes up before this Court in a writ petition under Art.226 of the Constitution or a petition under Sec.482 Cr.P.C., is co-extensive and co-terminus with the powers of the Board and therefore it may not be necessary for the petitioner and the juvenile to go before the Board to seek any relief. This Court can and must do justice to the juvenile, counsel urges. 10. I find merit in that contention. In the peculiar facts and circumstances of this case, where the juvenile is shown to be undergoing imprisonment for a long period from 1.4.95 notwithstanding the interruption due to his escape from prison, I am satisfied that it will be proper for this Court to consider the claim for the relief on merits and take appropriate decision rather than relegate the juvenile and the petitioner to the Board to seek relief. I therefore hold first of all that this Court has jurisdictional competence under Sec.6(2) of the Act to exercise the powers of the Board and to grant relief if this Court is satisfied that the Board can grant the relief. 11. The first prayer is for declaration of juvenility. Sec.7A of the amended Act shows that a claim of juvenility can be raised W.P.(c) No. 36377 of 2007-E -: 13 :- at any time. Lest, there be any confusion, the proviso to Sec.7A of the Act declares that the question of juvenility can be raised and can be recognised at any stage even after the final disposal of the case and the claim must be determined in terms of the provisions contained in the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. In the instant case, the claim of juvenility is raised by the petitioner and the juvenile before me for the first time in this writ petition. It is raised long after the conviction and sentence have become final. It is also raised long after the commencement of the Act. It is raised, I do note, long after the juvenile has ceased to be a juvenile even under Sec.2(k) of the Act. But all these, the proviso to Sec.7A(1) of the Act declares, is no ground to refuse to consider the claim of juvenility. The Board, (and consequently this Court in view of Sec.6(2) of the Act) is bound to consider the claim of juvenility raised by the petitioner and the juvenile now. 12. Sec.7A(2) of the Act declares that the crucial finding to be rendered is whether the juvenile was a juvenile in conflict with the law as per the amended Sec.2(l) of the Act on the date of the commission of the offence. Pratap Singh declared that position which was incorporated in the Act by amendment to Sec.2(l). It is declared unambiguously again in Sec.7A(2) of the W.P.(c) No. 36377 of 2007-E -: 14 :- Act that juvenility has to be ascertained as on the date of commission of the offence. 13. In the facts of this case, there is absolutely no doubt, and no one has a contra case, that the juvenile had not completed the age of 18 years on the date of the offence. It is not necessary to conduct a more detailed enquiry or take any further evidence. I have enquired into the same. I have taken note of Ext.P2 – extract of the school admission register produced. I have taken note of the stand taken by the State. The State was directed to conduct necessary enquiry and take a definite stand. It is thereafter that it was reported to this Court that, even going by the Church family register, the date of birth of the juvenile is 20/11/72. A categoric and unambiguous stand is taken by the State that the juvenile was aged less than 18 years on the date of commission of the offence. The necessary enquiry has been conducted. There is the option for the Board to take “such evidence as may be necessary”. In the light of the stand taken by the petitioner and the respondent/State and in the light of the materials made available, I find it not necessary to take any further evidence under Sec.7A of the Act. A finding of fact can safely and firmly be entered that the juvenile was aged less than 18 years on the date of commission of the offence. W.P.(c) No. 36377 of 2007-E -: 15 :- He was aged more than 17 but less than 18 years of age on 30/3/90, the date of the offence. 14. The first prayer made can certainly be granted and a declaration can be issued that the juvenile was a juvenile in conflict with law as per the amended definition under Sec.2(l) of the Act on the date of commission of the offence, i.e., on 30/3/90. 15. The second declaration sought is that the sentence passed by the Sessions Court and confirmed by this Court in appeal must be deemed to be no effect at all. The said relief stems directly from the finding entered in Question No.1 that the juvenile was below the age of 18 years on the date of commission of the offence. Sec.7A(2) of the Act which I have extracted above stipulates unambiguously that on such finding the sentence passed by a court earlier must be deemed to have no effect at all. The second declaration prayed for viz., that the sentence imposed on the juvenile is of no effect can hence be straightaway granted. 16. That takes me to the next prayer made by the petitioner on behalf of the juvenile. Sec.7A(2) of the Act mandates that any court which finds the accused person to be a juvenile on the date of commission of the offence under sub- section (1) must forward the juvenile to the Board for passing W.P.(c) No. 36377 of 2007-E -: 16 :- appropriate orders. I have already taken the view earlier that in the light of Sec.6(2) of the Act it is not necessary for me to forward the juvenile to the Board. Necessary further orders can be passed by this Court itself. Sec.7A(2) of the Act clothes the Board with the requisite powers and that read along with Sec.6 (2) of the Act clothes this Court with the requisite powers. 17. What further orders can be passed by the Board, or this Court is the next question to be considered and that is the third prayer raised by the petitioner. Learned counsel for the petitioner submits that under Sec.64 of the Act the Government as well as the Board is clothed with the powers to review the case of a juvenile in conflict with the law undergoing sentence of imprisonment at the commencement of the Act. 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. On such review appropriate orders are to be passed “in the interests of such juvenile”. 18. The review is to be undertaken only if there are special and adequate reasons as per the proviso to Sec.64. The fact that the juvenile was a juvenile under the age of 18 years on the date of the offence is the first reason. The second reason is that W.P.(c) No. 36377 of 2007-E -: 17 :- the juvenile has remained in custody for a long period of time from 1.4.95. I reckon all these as special and adequate reason to review the case of the juvenile who at such young age had committed the offence. The fact that the juvenile had escaped from prison and was recaptured after 1212 days has been taken note of by me. But I do not reckon that as a sufficient reason not to extend the benefit of review for the juvenile. The State in the statements filed has not advanced a contention at all that the juvenile is not entitled to have his case reviewed under the amended proviso to Sec.64 of the Act. 19. Explanation to Sec.64