Arunachalam v. The State

In the High Court of Judicature at Madras Dated: 20.03.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice R.SUBBIAH Habeas Corpus Petition No.1803 of 2008Arunachalam..PetitionerVs.1. The State represented by the Director General of Prison, Egmore, Chennai-600 008.2. The Superintendent of Police, Central Prison, Cuddalore.3. The Inspector of Police, Taluk Police Station, Villupuram, Villupuram District...Respondents (Cr.No.47/96)Petition filed under Article 226 of the Constitution ofIndia, for the issuance of a Writ of Habeas Corpus, directingthe 1st respondent to produce the detenu Kumaran, son ofRanganathan Gounder, now confined at Central Prison, Cuddalore,before this Court and transfer him to Borstal School,Pudukkottai.For Petitioner ..Mr.R.SankarasubbuFor Respondents ..Mr.N.R.Elango, Addl.P.P.,R.SUBBIAH, J.,The petitioner is the brother of the detenu, namely, R.Kumaran,who is now confined at Central Prison, Cuddalore, pursuant tothe order of conviction dated 18.04.2000 in S.C.No.178 of 1998passed by the learned Additional Sessions Judge, Villupuramsentencing the detenu to undergo life imprisonment for anoffence punishable under Section 302 read with Section 34 IPC https://hcservices.ecourts.gov.in/hcservices/ and also to pay a fine of Rs.5,000/-, in default to undergorigorous imprisonment for six months, which was confirmed bythis Court in Criminal Appeal No.373 of 2000 on 12.08.2005.2. The petitioner has come forward with this habeas corpuspetition seeking for a direction to transfer the detenu Kumaranfrom Central Prison, Cuddalore to Borstel School, Pudukottai,stating that on the date of commission of the offence, namely,18.01.1996, he was only 16 years old. Since the detenu is anadolescent offender on the date of his conviction for theoffence, he is entitled to get relief under the Borstel SchoolAct. Hence, the detention of the detenu Kumaran in the hands ofthe 2nd respondent is unjust, illegal and violative of Article21 of the Constitution of India.3. Heard the learned counsel for the petitioner and thelearned Additional Government Pleader for the respondents andperused the materials placed before us.4. A perusal of the affidavit filed by the petitionerreveals that the detenu was born on 25.04.1980 and on the dateof offence, namely, 18.01.1996 he was only 16 years old, butthe 3rd respondent filed a report before the trial court statingthat the age of the detenu was 21 years on 18.03.1997. But itis pertinent to note that the affidavit is silent to the effectas to whether any dispute was raised by the detenu with regardto the date of birth mentioned in the report filed by the 3rdrespondent before the trial court. However, now along with thepresent petition, the petitioner has filed a transfercertificate issued by the M.R.I.C.R.C.High School, Villupuram,to prove the age of the detenu. The said document shows that thedetenu was born on 25.04.1980.5. Per contra, the 2nd respondent, Superintendent ofPolice, Central Prison, Cuddalore, filed a counter stating thatthe detenu was convicted and sentenced to undergo imprisonmentfor life for the offence punishable under section 302 read withSection 34 IPC and also to pay a fine of Rs.5,000/-, in defaultto undergo six months rigorous imprisonment, by the learnedAdditional Sessions Judge, Villupuram in S.C.No.178 of 1998 on18.04.2000. Subsequently, he was released on bail on 11.07.2000as per the order passed by this Court in Crl.M.P.No.2833 of 2000in C.A.No.373 of 2000 dated 11.07.2000. Thereafter, the detenuwas recommitted to jail for undergoing the remaining period ofsentence since the sentence awarded by the Additional SessionsJudge, Villupuram was confirmed by this Court in the said appeal, on 12.08.2005. He was admitted in Central Prison, Cuddalore on12.08.2008. In the counter, it is further stated that as per thewarrant issued by the learned Additional Sessions Judge, https://hcservices.ecourts.gov.in/hcservices/ Villupuram on 18.04.2000, consequent to conviction and sentencepassed in S.C.No.178 of 1998 the age of the detenu was mentionedas 22 years as of the year 2000. But the date of birth of thedetenu, as per the transfer certificate dated 04.08.2008, issuedby the M.R.I.C.R.C. High School, Villupuram, is 25.04.1980.Since the detenu attained the age of 28 years at the time ofadmission in the prison on 12.08.2008 to undergo the remainingperiod of life imprisonment, the prayer of sending him toBorstal School at this stage does not arise and there is noviolation of Article 21 of the Constitution of India. Hence, thepetition is liable to be dismissed.6.Learned counsel appearing for the petitioner submittedthat in the counter filed by the 2nd respondent, no seriousdispute was raised with regard to the age of the detenu. Undersuch circumstances, based on the document filed along with thepetition, namely, transfer certificate, it could be safelyinferred that the detenu was only 16 years on the date ofcommission of offence. Further, the learned counsel appearingfor the petitioner invited the attention of this Court toSections 8 and 10-A of the Madras Borstal Schools Act andpleaded that the detenu, being an adolescent offender on thedate of the alleged occurrence, must have been transferred toBorstal School at Pudukottai.7. Per contra, the learned Additional Public Prosecutordrew the attention of this Court to Section 2(1) of the saidAct, which reads as follows:"Adolescent offender" means any person who hasbeen convicted of any offence punishable withimprisonment or who having been ordered to givesecurity under Section 118 of the Code of CriminalProcedure has failed to do so and who at the time ofsuch conviction or failure to give security is notless than 16 in the case ofa boy and not less than 18in the case of a girl, but not more than 21 years ofage in either case".8. By referring to the above provision of law, the learnedAdditional Public Prosecutor submitted that even assuming forarguments' sake the date of birth of the detenu as 25.04.1980,on the date of offence, he has not completed 16 years.Therefore, he will not come within the definition of 'adolescentoffender' as defined under section 2(1) of Madras Borstal SchoolAct. Under such circumstances, the question of extending thebenefit under Madras Borstal Schools Act does not arise.9. At this juncture, the learned counsel appearing for thepetitioner made an alternative plea and submitted that since the https://hcservices.ecourts.gov.in/hcservices/ detenu was less than 16 years on the date of offence, thebenefit under Juvenile Justice (Care and Protection of Children)Act, 2000 can be extended to him, since the detenu will fallwithin the meaning of 'Juvenile' as defined under Section 2(k)of the Juvenile Justice (Care & Protection of Children) Act,2000 (hereinafter referred to as 'the Act). Section 2(k) of thesaid Act reads as follows:"Juvenile" or "child" means a person who has notcompleted eighteen years of age".10. In this regard, the learned counsel appearing for thepetitioner, by referring to various provisions of the said Act,elaborately argued that when a juvenile was brought before theCourt for trial, an enquiry should be made with regard to hisage and if he is found to be Juvenile, then he should be sentbefore the Board constituted under the Act.11. In this regard, learned counsel appearing for thepetitioner relied upon the decisions in Hussainara Khatoon andothers ..vs.. Home Secretary, State of Bihar reported in 1980SCC (Crl.) 23 and Gopinath Ghosh ..vs.. State of West Bengalreported in 1984 SCC (Crl.) 478 in support of his contention,which falls under two folds. (1) The trial against the juvenile detenu by thetrial court was without jurisdiction and as such, thesame is vitiated in view of the applicability of the Act.(2) If a person is deprived of his life or personalliberty under any procedure which is not "reasonable,fair or just", such deprivation would be violative ofhis fundamental rights guaranteed under Article 21 ofthe Constitution of India, and would be entitled toenforce such fundamental rights and secure his release. Thus, the learned counsel for the petitioner alternativelypleaded to extend the benefit of the Act to free himself fromthe clutches of detention, since the detenu was a juvenile onthe date of commission of the offence. When a question wasraised with regard to the applicability of the Juvenile Justice(Care & Protection of Children) Act, 2000, for the offencecommitted in the year 1996, the learned counsel appearing forthe petitioner drew the attention of this court to Sections 20and 64 of the said Act, which read as follows:"20. Special provision in respect of pendingcases:- Notwithstanding anything contained in this Act,all proceedings in respect of a juvenile pending in anycourt in any area on the date on which this Act comesinto force in that area, shall be continued in thatcourt as if this Act had not been passed and if thecourt finds that the juvenile has committed an offence,it shall record such finding and instead of passing any https://hcservices.ecourts.gov.in/hcservices/ sentence in respect of the juvenile, forward thejuvenile to the Board which shall pass orders inrespect of that juvenile in accordance with theprovisions of this Act as if it had been satisfied oninquiry under this act that a juvenile has committedthe offence.64. Juvenile in conflict with law undergoingsentence at commencement of this Act: In any area inwhich this act is brought into force, the StateGovernment or the local authority may direct that ajuvenile in conflict with law who is undergoing anysentence of imprisonment at the commencement of thisAct, shall, in lieu of undergoing such sentence, besent a special home or be kept in fit institution insuch manner as the State Government or the localauthority thinks fit for the remainder of the period ofthe sentence; and the provisions of this Act shallapply to the juvenile as if he had been ordered by theBoard to be sent to such special home or institutionor, as the case may be, ordered to be kept underprotective care under sub-section (2) of Section 16 ofthis Act".12. Per contra, learned Additional Public Prosecutorsubmitted that the alternate plea made by the learned counselfor the petitioner to release the detenu by extending thebenefit of the Act cannot be entertained in this habeas corpuspetition, since the conviction and sentence passed by theSessions Court are confirmed by this Court in the criminalappeal, and hence this petition is not maintainable. 13. By way of reply, the learned counsel for thepetitioner, by referring to the decision reported in 1984 SCC(Crl.) 478 (cited supra) argued that whenever a case is broughtbefore the Court and the accused appears to be aged 21 years orbelow, before proceeding with the trial or undertaking aninquiry, an inquiry must be made about the age of the accused onthe date of the occurrence. The relevant passage from the saidjudgment is extracted hereunder:"13. Before we part with this judgment, we must takenotice of a developing situation in recent months inthis Court that the contention about age of a convictand claiming the benefit of the relevant provisions ofthe Act dealing with juvenile delinquents prevalent invarious States is raised for the first time in thisCourt and this Court is required to start the inquiryafresh. Ordinarily this Court would be reluctant toentertain a contention based on factual averments https://hcservices.ecourts.gov.in/hcservices/ raised for the first time before it. However, theCourt is equally reluctant to ignore, overlook ornullify the beneficial provisions of a very sociallyprogressive statute by taking shield behind thetechnicality of the contention being raised for thefirst time in this Court. A way has therefore, to befound from this situation not conducive to speedydisposal of cases and yet giving effect to the letterand the spirit of such socially beneficial legislation.We are of the opinion that whenever a case is broughtbefore the Magistrate and the accused appears to beaged21 years or below, before proceeding with the trialor undertaking an inquiry, an inquiry must be madeabout the age of the accused on the date of theoccurrence. This ought to be more so where special actsdealing with juvenile delinquent are in force. Ifnecessary, the Magistrate may refer the accused to theMedical Board or the Civil Surgeon, as the case may be,for obtaining creditworthy evidence about age. TheMagistrate may as well call upon accused also to leadevidence about this age. Thereafter, the learnedMagistrate may proceed in accordance with law. Thisprocedure, if properly followed, would avoid a journeyupto the Apex Court and the return journey to thegrass-root court. If necessary and found expedient,the High Court may on its administrative side issuenecessary instructions to cope with the situationherein indicated".14. Citing the said decision, the learned counsel for thepetitioner contended that though a plea with regard toapplicability of the Juvenile Act was not raised before thetrial court when the detenu was brought before the Court, anenquiry should have been conducted by the Magistrate with regardto his age and he should have been sent before the BoardConstituted under the Act. Under such circumstances, it cannotbe said that since a plea under the Act was not raised beforethe trial court, the prayer is not liable to be considered.Further, the learned counsel for the petitioner contended thatthe claim of juvenility can be raised at any stage of theproceedings and even after disposal of the case. In this regard,he placed reliance on the judgment reported in Usman ..vs..Stateof Uttar Pradesh(2008(3) Crimes 469(All.). In that case, thedetenu has filed an application before the High Court seeking torecall the sentence imposed on him in Criminal Appeal No. 888 of2004 by the order dated 11th October 2004, on the ground that hewas juvenile in conflict with law, on the date of the offenceand considering the provisions of law comprised under the Act of2000 read with the Juvenile Justice Act,1986 he could not have https://hcservices.ecourts.gov.in/hcservices/ been sentenced for life imprisonment or for death but shouldhave been ordered to be produced before the Board, in terms ofthe provisions of law for necessary order in terms of Section 15of the Act. In that case, considering the position of the Act,the sentence imposed on him was recalled and quashed. Based onthe said judgment, it is contended by the learned counsel forthe petitioner that it is incorrect to state that since no pleawas raised at that stage, extending the benefit cannot beconsidered.15. Learned Additional Public Prosecutor contended thatthe plea that the detenu was the juvenile at the time ofcommitting the offence, was not raised before the trial court.Now at this length of time, that too, after the conviction wasconfirmed by this Court in the criminal appeal, he cannot pleadfor the benefit under the Act in this Habeas corpus petition.Since the offence had been committed in the year 1996, the Actis not applicable as he has not completed 18 years on 01.04.2001i.e.the date on which the Act came into force. With regard tothis, learned Additional Public Prosecutor relied upon ajudgment reported in Pratap Singh ..vs.. State of Jharkhand andanother ( (2005)3 SCC 551=2005(1) SCC 742). With regard to theapplicability of the said judgment, the view of H.K.Sema, J., inpara Nos.27 to 32 is as follows:"27. The striking distinction between the 1986Act and the 2000 Act is with regard to the definitionof juvenile. Section 2(h) of the 1986 Act definesjuvenile as under:"2.(h) 'juvenile' means a boy who hasnot attained the age of sixteen years or agirl who has not attained the age ofeighteen years;"Section 2(k) of 2000 Act defines juvenile as under:"2.(k) 'juvenile' or 'child' means aperson who has not completed eighteenthyear of age;"28. Thus, the striking distinction between the1986 Act and the 2000 Act is that under the 1986 Act ajuvenile means a male juvenile who has not attainedthe age of 16 years and a female juvenile who has notattained the age of 18 years. In the 2000 Act nodistinction has been drawn between the male and femalejuvenile. The limit of 16 years in the 1986 Act hasbeen raised to 18 years in the 2000 Act. In the 2000Act wherever the word "juvenile" appears the same willnow have to be taken to mean a person who has notcompleted 18 years of age. https://hcservices.ecourts.gov.in/hcservices/

29. Section 3 provides as follows:"3. Continuation of inquiry in respect ofjuvenile who has ceased to be a juvenile- Wherean inquiry has been initiated against a juvenilein conflict with law or a child in need of careand protection and during the course of suchinquiry the juvenile or the child ceases to besuch, then, notwithstanding anything containedin this Act or in any other law for the timebeing in force, the inquiry may be continued andorders may be made in respect of such person as if such person hadcontinued to be a juvenile or a child".Thus, even where an inquiry has been initiated and thejuvenile ceases to be a juvenile i.e. crosses the ageof 18 years, the inquiry must be continued and ordersmade in respect of such person as if such person hadcontinued to be a juvenile".30. Similarly, under Section 64 where a juvenileis undergoing a sentence of imprisonment at thecommencement of the 2000 Act he would, in lieu ofundergoing such sentence, be sent to a special home orbe kept in a fit institution. These provisions showthat even in cases where a mere inquiry has commencedor even where a juvenile has been sentenced theprovisions of the 2000 Act would apply. Therefore,Section 20 is to be appreciated in the context of theaforesaid provisions.31. Section 20 of the Act as quoted above dealswith the special provisions in respect of pendingcases and begins with a non obstante clause. Thesentence "notwithstanding anything contained in thisAct, all proceedings in respect of a juvenile pendingin any court in any area on the date on which this Actcame into force" has great significance. Theproceedings in respect of a juvenile pending in anycourt referred to in section 20 of the Act orrelatable to proceedings initiated before the 2000 Actcame into force and which are pending when the 2000Act came into force. The term "any court" wouldinclude even ordinary criminal courts. If the personwas a "juvenile" under the 1986 Act the proceedingswould not be pending in criminal courts. They would bepending in criminal courts only if the boy had crossed16 years or the girl had crossed 18 years. This shows https://hcservices.ecourts.gov.in/hcservices/ that Section 20 refers to cases where a person hadceased to be a juvenile under the 1986 Act but had notyet crossed the age of 18 years then the pending caseshall continue in that court as if the 2000 Act hasnot been passed and if the court finds that thejuvenile has committed an offence, it shall recordsuch finding and instead of passing any sentence inrespect of the juvenile, shall forward the juvenile tothe Board which shall pass orders in respect of thatjuvenile.32. In this connection it is pertinent to notethat section 16 of the 2000 Act is identical toSection 22 of the 1986 Act. Similarly Section 15 ofthe 2000 Act is in pari materia with Section 21 ofthe 1986 Act. Thus, such an interpretation does notoffend Article 20(1) of the constitution and thejuvenile is not subjected to any penalty greater thanthat which might have been inflicted on him under the1986 Act". 16. By relying upon the said judgment, learned AdditionalPublic Prosecutor contended that when it is the case of thepetitioner that the detenu was less than 16 years old on thedate of offence namely, 18.01.1996, it is pertinent to note thatas on 01.04.2001 he had crossed the age of 18. Therefore, thepetitioner cannot seek any benefit under the Act, which cameinto force much later from the date of offence. Therefore, thelearned Additional Public Prosecutor contended that thepetitioner cannot seek remedy either under the Borstal SchoolsAct or under the Act of 2000.17. In view of the submissions made by both sides, now thepoint that has to be considered in this case is whether thedetenu is entitled to get benefit under the Act and if so,whether such a benefit could be granted to the petitioner inthis habeas corpus petition?18. We have carefully considered the submissions and rivalsubmissions made on either side. Since the learned counsel forthe petitioner has not pressed the original prayer, namely, totransfer the detenu to the Borstal School from central Prison,Cuddalore, in view of the definition found in the BorstalSchools Act, we are not dealing with the same. Now, this Courtis concerned only with the alternative prayer, namely, extensionof benefit under the Act to the detenu. Though the learnedcounsel for the petitioner has relied on plethora of cases, ona careful consideration of those cases, we find that the benefitwas extended by some way or other to the detenus while dealing https://hcservices.ecourts.gov.in/hcservices/ with the criminal appeals and not in the petition filed underArticle 226 of the Constitution of India. On going through thedecision cited by the learned Additional Public Prosecutor,namely, (2005)3 SCC 551(cited supra), we are of the view that itis squarely applicable to the facts on hand. From the facts ofthe case, it could be safely inferred that as on 01.04.2001,the detenu had crossed the age of 18. Therefore, he cannotderive the benefit for the offence committed in the year 1996.Further, it is very clear that the benefit could be extended byapplying section 20 of the Act only to the accused, who arewithin the age of 18 on the date of enforcement of Act namely01.04.2001. Therefore, by relying upon the said judgment, wehold that the detenu cannot derive the benefit under the Act.19. With regard to the maintainability of this petition, weare of the opinion that only if the confinement is illegal, thesame can be questioned under the writ jurisdiction by way ofhabeas corpus petition. But in this case, the detenu was sent tojail pursuant to the judgment passed by the Sessions court,which was confirmed by this Court and thus he is only a convictprisoner, serving the sentence awarded to him by a Court of law.Under such circumstances, at the maximum, it can be contendedthat the trial conducted by the Sessions Court jointlyimplicating the Juvenile along with the co-accused is anirregular trial so far as the detenu is concerned, and in theabsence of any opinion of the court of appeal a failure ofjustice has in fact been occasioned and thus much prejudice hadbeen caused to the detenu. In the absence of any plea raisedbefore the trial court as well as the appellate court in respectof the finding by the trial court that the detenu had crossedthe age of 16 at the time of the trial on 18.03.1997 and furthersince the prayer in this petition is confined only to transferthe detenu to the Borstal School, when he has now crossed theage of 28 years even assuming his date of birth as on25.04.1980, in consideration of the entire materials placed onrecord and the case law on the subject, we have no hesitation tohold that the present imprisonment, which the detenu isundergoing, pursuant to a proceedings of the court, cannot bequestioned in the writ jurisdiction, which would fall outsidethe scope of the Habeas corpus petition. Under thesecircumstances, this court is not inclined to express any opinionwith regard to the detenu's entitlement for the benefit underthe Juvenile justice Act of 1986 or otherwise under theprovisions of the Act of 2000, since the criminal proceedingsbefore the trial court as well as before the appellate courthave come to a finality regarding the merits and demerits of theconviction and sentence passed against the detenu. https://hcservices.ecourts.gov.in/hcservices/ For the reasons stated above, the habeas corpus petition isdismissed.GlSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Director General of Prison, State of Tamil Nadu, Egmore, Chennai-600 008.2. The Superintendent of Police, Central Prison, Cuddalore.3. The Inspector of Police, Taluk Police Station, Villupuram, Villupuram District.4. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. R. Sankara Subbu, Advocate SR No.8642BV(CO)SR/26.3.2009order in H.C.P. No.1803 of2008