High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.06.2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOH.C.P.No.807 of 2009ArunachalamS/o Renganathan.. Petitioner-Vs-1. The State represented by the Director General of Prisons Egmore, Chennai 600 0082. The Superintendent of Police Central Prison Cuddalore3. The Inspector of Police Taluk Police Station Villupuram Villupuram District (Crime No.47/96) ..Respondents Petition under Article 226 of the Constitution of India, prayingfor the issue of a Writ of Habeas Corpus, directing the respondentsto produce the detenu Kumaran, son of Renganathan Gounder nowconfined in Central Prison, Cuddalore before this Honourable Courtand set him at liberty. For Petitioner:: Mr.R.SankarasubbuFor Respondents:: Mr.V.R.BalasubramanianAdditional Public Prosecutor ORDER (Order of the Court was delivered by S.J.MUKHOPADHAYA, J.)This petition has been filed for a direction to the respondentsto produce the detenu, Kumaran, the brother of the petitioner, on theground that his conviction under Section 302 IPC read with Section 34IPC was illegal. According to the petitioner, his brother, thedetenu, Kumaran, was born on 25th April, 1980 and was a juvenile atthe time of the trial in S.C.No.178 of 1998 pending on the file ofthe learned Additional Sessions Judge, Villupuram. On the basis of areport filed before the Court showing the age of the detenu as 21years on 18th March, 1997 and as such, on the date of occurrence, thedetenu was a juvenile. https://hcservices.ecourts.gov.in/hcservices/

2. The learned counsel appearing on behalf of the petitionersubmitted that as per Section 7-A of the Juvenile Justice (Care andProtection of Children) Act, 2000 (for short, "the JJ Act"), at anystage of the proceedings, the claim of juvenility can be raised andadmittedly, on the date of commission of offence, the detenu was ajuvenile. Therefore, he is entitled for the relief as per Section 7-A, though he ceased to be a juvenile on the date of commencement ofthe Act. If the detenu would have been tried before a JuvenileJustice Board, he could not have been inflicted with any punishment,though any reformatory order could have been passed, and thereforethe punishment inflicted is violative of Article 20(1) of theConstitution of India.3. The learned Additional Public Prosecutor for the Stateopposed the case on the ground that a similar petition was earlierfiled, which was dismissed by a Bench of this Court on 20th March,2009 in Habeas Corpus Petition No.1803 of 2008. In reply, thelearned counsel for the petitioner submitted that this Court had notconsidered the matter as per Section 7-A of the JJ Act.4. We have heard the learned counsel for the petitioner and thelearned Additional Public Prosecutor for the State.5. The question relating to the age of the detenu and theapplicability of the one or other Act including the JJ Act fell forconsideration in the earlier case of the detenu in Habeas CorpusPetition No.1803 of 2008. By judgment dated 20th March, 2009, theCourt noticed the fact, as evident from the following paragraphs:"4. A perusal of the affidavit filed by thepetitioner reveals that the detenu was born on25.04.1980 and on the date of offence, namely,18.01.1996 he was only 16 years old, but the 3rdrespondent filed a report before the trial courtstating that the age of the detenu was 21 years on18.03.1997. But it is pertinent to note that theaffidavit is silent to the effect as to whether anydispute was raised by the detenu with regard to thedate of birth mentioned in the report filed by the3rd respondent before the trial court. However, nowalong with the present petition, the petitioner hasfiled a transfer certificate issued by theM.R.I.C.R.C.High School, Villupuram, to prove theage of the detenu. The said document shows that thedetenu was born on 25.04.1980.5. Per contra, the 2nd respondent,Superintendent of Police, Central Prison, Cuddalore,filed a counter stating that the detenu wasconvicted and sentenced to undergo imprisonment forlife for the offence punishable under section 302read with Section 34 IPC and also to pay a fine ofRs.5,000/-, in default to undergo six monthsrigorous imprisonment, by the learned AdditionalSessions Judge, Villupuram in S.C.No.178 of 1998 on18.04.2000. Subsequently, he was released on bailon 11.07.2000 as per the order passed by this Court https://hcservices.ecourts.gov.in/hcservices/ in Crl.M.P.No.2833 of 2000 in C.A.No.373 of 2000dated 11.07.2000. Thereafter, the detenu wasrecommitted to jail for undergoing the remainingperiod of sentence since the sentence awarded by theAdditional Sessions Judge, Villupuram was confirmedby this Court in the said appeal , on 12.08.2005. Hewas admitted in Central Prison, Cuddalore on12.08.2008. In the counter, it is further statedthat as per the warrant issued by the learnedAdditional Sessions Judge, Villupuram on 18.04.2000,consequent to conviction and sentence passed inS.C.No.178 of 1998 the age of the detenu wasmentioned as 22 years as of the year 2000. But thedate of birth of the detenu, as per the transfercertificate dated 04.08.2008, issued by theM.R.I.C.R.C. High School, Villupuram, is 25.04.1980.Since the detenu attained the age of 28 years at thetime of admission in the prison on 12.08.2008 toundergo the remaining period of life imprisonment,the prayer of sending him to Borstal School at thisstage does not arise and there is no violation ofArticle 21 of the Constitution of India. Hence, thepetition is liable to be dismissed.......9. At this juncture, the learned counselappearing for the petitioner made an alternativeplea and submitted that since the detenu was lessthan 16 years on the date of offence, the benefitunder Juvenile Justice (Care and Protection ofChildren) Act, 2000 can be extended to him, sincethe detenu will fall within the meaning of'Juvenile' as defined under Section 2(k) of theJuvenile Justice (Care & Protection of Children)Act, 2000 (hereinafter referred to as 'the Act).Section 2(k) of the said Act reads as follows:"Juvenile" or "child" means a person who has notcompleted eighteen years of age".10. In this regard, the learned counselappearing for the petitioner, by referring tovarious provisions of the said Act, elaboratelyargued that when a juvenile was brought before theCourt for trial, an enquiry should be made withregard to his age and if he is found to be Juvenile,then he should be sent before the Board constitutedunder the Act."Having considered the aforesaid aspect and the other submissions, indealing with the relevant provisions of law including the JJ Act,2000, the Court observed as follows and dismissed the case:"18. We have carefully considered thesubmissions and rival submissions made on eitherside. Since the learned counsel for the petitionerhas not pressed the original prayer, namely, totransfer the detenu to the Borstal School from https://hcservices.ecourts.gov.in/hcservices/ central Prison, Cuddalore, in view of thedefinition found in the Borstal Schools Act, we arenot dealing with the same. Now, this Court isconcerned only with the alternative prayer, namely,extension of benefit under the Act to the detenu.Though the learned counsel for the petitioner hasrelied on plethora of cases, on a carefulconsideration of those cases, we find that thebenefit was extended by some way or other to thedetenus while dealing with the criminal appeals andnot in the petition filed under Article 226 of theConstitution of India. On going through thedecision cited by the learned Additional PublicProsecutor, namely, (2005) 3 SCC 551 (cited supra),we are of the view that it is squarely applicableto the facts on hand. From the facts of the case,it could be safely inferred that as on 01.04.2001,the detenu had crossed the age of 18. Therefore, hecannot derive the benefit for the offence committedin the year 1996. Further, it is very clear thatthe benefit could be extended by applying section20 of the Act only to the accused, who are withinthe age of 18 on the date of enforcement of Actnamely 01.04.2001. Therefore, by relying upon thesaid judgment, we hold that the detenu cannotderive the benefit under the Act.19. With regard to the maintainability of thispetition, we are of the opinion that only if theconfinement is illegal, the same can be questionedunder the writ jurisdiction by way of habeas corpuspetition. But in this case, the detenu was sent tojail pursuant to the judgment passed by theSessions court, which was confirmed by this Courtand thus he is only a convict prisoner, serving thesentence awarded to him by a Court of law. Undersuch circumstances, at the maximum, it can becontended that the trial conducted by the SessionsCourt jointly implicating the Juvenile along withthe co-accused is an irregular trial so far as thedetenu is concerned, and in the absence of anyopinion of the court of appeal a failure of justicehas in fact been occasioned and thus much prejudicehad been caused to the detenu. In the absence ofany plea raised before the trial court as well asthe appellate court in respect of the finding bythe trial court that the detenu had crossed the ageof 16 at the time of the trial on 18.03.1997 andfurther since the prayer in this petition isconfined only to transfer the detenu to the BorstalSchool, when he has now crossed the age of 28 yearseven assuming his date of birth as on 25.04.1980,in consideration of the entire materials placed onrecord and the case law on the subject, we have nohesitation to hold that the present imprisonment,which the detenu is undergoing, pursuant to a https://hcservices.ecourts.gov.in/hcservices/ proceedings of the court, cannot be questioned inthe writ jurisdiction, which would fall outside thescope of the Habeas corpus petition. Under thesecircumstances, this court is not inclined toexpress any opinion with regard to the detenu'sentitlement for the benefit under the Juvenilejustice Act of 1986 or otherwise under theprovisions of the Act of 2000, since the criminalproceedings before the trial court as well asbefore the appellate court have come to a finalityregarding the merits and demerits of the convictionand sentence passed against the detenu."6. The learned counsel appearing on behalf of the petitionerheavily relied on Section 7-A of the JJ Act and submitted thatwhenever a claim of juvenility is raised before the Court and theCourt is of the opinion that an accused person is a juvenile, so asto determine the age of such person, the Court should make an enquiryafter taking into consideration of the evidence. But we are notinclined to exercise such a discretion at this stage for thefollowing reasons:(a) The detenu was convicted on 18th April, 2000. The TransferCertificate dated 4th August, 2008 was not brought to the notice ofthe trial Court nor any prayer was made for determination of the ageof the detenu. Before the trial Court, it was said that the age ofthe detenu was 21 years, which was accepted. After more than eightyears of conviction, the Transfer Certificate was obtained on 4thAugust, 2008. Therefore, such a certificate cannot be relied upon.(b) Section 7-A of the JJ Act was inserted by Juvenile Justice(Care and Protection of Children) Amendment Act, 2006 (33 of 2006)and came into effect from 22nd August, 2006. The amendment havingcome into effect in 2006, there was no occasion for the trial Courtto decide the age in terms of Section 7-A. (c) The advantage of Section 7-A, though applies to an accusedwho was a juvenile at the time of occurrence and can take such aplea during trial or even in appeal, but, once the conviction reachedits finality, for the subsequent filing of a petition for habeascorpus, the benefit of Section 7-A cannot be derived. We find no merit in this habeas corpus petition. It is,accordingly, dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssTo1. The Director General of Prisons Egmore Chennai 600 0082. The Superintendent Central Prison Cuddalore3. The Inspector of Police Taluk Police Station Villupuram Villupuram District (Crime No.47/96)4. The Public Prosecutor High Court, Madras1 cc To Mr.R.Sankarasubbu, Advocate, SR.23428H.C.P.No.807 of 2009NTK(CO)SRA(22/6/2009)