M.Sudalaimuthu Nadar v. The Inspector of Police, Valliyoor Police Station, Crime No.409/99, Tirunelveli District & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 21.08.2012CORAM:THE HONOURABLE MS.JUSTICE K.SUGUNAANDTHE HONOURABLE MS.JUSTICE R.MALAHABEAS CORPUS PETITION(MD).No.785 of 2011M.Sudalaimuthu Nadar: PetitionerVs.1.The Inspector of Police, Valliyoor Police Station, Crime No.409/99, Tirunelveli District.2.The Superintendent of Police, Palayamkottai, Tirunelveli District. : RespondentsPRAYER: Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Habeas Corpus to quash the sentence awardedto the petitioner's son Kuttiyan @ Natarajan, who is accused No.3 inS.C.No.249 of 2001, dated 16.04.2003, on the file of the AdditionalSessions Judge, FTC No.I, Tirunelveli and awarded life sentence andfine of Rs.1,000/- in default to undergo one year RI under Section302 r/w 32 IPC and confirmed by the Hon'ble High Court of MaduraiBench in C.A.No.798 of 2003, dated 04.07.2006 and direct the secondrespondent to release the petitioner's son Kuttiyan @ Natarajan(Accused No.3) from the Central Jail, Palayamkottai. [Prayer amended as per the order of this Court dated 02.11.2011 madein HCP(MD).No.785 of 2011]. For Petitioner: Mr.P.RamasamyFor Respondents: Mr.A.RamarAdditional Public ProsecutorO R D E R[Order of the Court was made by K.SUGUNA, J.]This Habeas Corpus Petition is filed by the father of the detenuseeking to quash the sentence imposed on his son, who is an accusedNo.3 in S.C.No.249 of 2001, on the file of the Additional SessionsJudge cum Fast Track Court No.I, Tirunelveli, wherein he wassentenced to undergo life imprisonment and to pay a fine ofRs.1,000/- in default to undergo rigorous imprisonment for one year https://hcservices.ecourts.gov.in/hcservices/ 2under Section 302 r/w 32 of the Indian Penal Code, which wasconfirmed by a Division Bench of this Court in C.A.No.798 of 2003,dated 04.07.2006.2. The case of the petitioner is that his son was convicted inthe said case and sentenced to undergo life imprisonment by theAdditional Sessions Judge cum Fast Track Court No.I, Tirunelveli, byJudgment dated 16.04.2003, which was confirmed by the Division Benchof this Court in C.A.No.798 of 2003, dated 04.07.2006. But, accordingto the learned counsel for the petitioner, on the date of commissionof offence, i.e., on 24.09.1999, the son of the petitioner was ajuvenile. Consequently, he is entitled for the benefit of JuvenileJustice (Care and Protection of Children) Act, 2000, [for short, "theAct"]. In support of his contention, the learned counsel for thepetitioner has relied on Sections 15 and 16 of the Act and alsoParagraph Nos.15 and 16 of the Judgment of the Hon'ble Supreme Courtin Dharambir Vs. State (NCT of Delhi) reported in AIR 2010 SC 1801,which read as follows:-"15. Having held so, the next question forconsideration is as to what order on sentence is tobe passed against the appellant for the offencescommitted by him under Sections 302 and 307 read withSection 34 IPC, correctness whereof has not been putin issue before us. Section 15 of the Act of 2000provides for various orders which the JuvenileJustice Board (for short "the Board") may passagainst a juvenile when it is satisfied that thejuvenile has committed an offence, which includes anorder directing the juvenile to be sent to a specialhome for a period of three years. Section 16 of theAct of 2000 stipulates that where a juvenile who hasattained the age of sixteen years has committed anoffence and the Board is satisfied that the offencecommitted is so serious in nature that it would notbe in his interest or in the interest of otherjuvenile in a special home to send him to suchspecial home and that none of the other measuresprovided under the Act is suitable or sufficient, theBoard may order the juvenile in conflict with law tobe kept in such place of safety and in such manner asit thinks fit and shall report the case for the orderof the State Government. Proviso to sub-section (2)of Section 16 of the Act of 2000 provides that theperiod of detention so ordered shall not exceed inany case the maximum period provided under Section 15of the said Act, i.e., for three years. In theinstant case, as per the information furnished to us,the appellant has undergone an actual period ofsentence of 2 years, 4 months and 4 days and is nowaged about thirty five years. We feel that, keepingin view the age of the appellant, it may not beconducive to the environment in the special home and https://hcservices.ecourts.gov.in/hcservices/ 3to the interest of other juveniles housed in thespecial home, to refer him to the Board for passingorders for sending the appellant to special home orfor keeping him at some other place of safety for theremaining period of less than eight months, themaximum period for which he can now be kept in eitherof the two places. 16. Accordingly, while sustaining the convictionof the appellant for the afore-stated offences, wequash the sentences awarded to him and direct hisrelease forthwith, if not required in any other case.The appeal succeeds partly to the extent indicatedabove."3. On an earlier occasion, this Court, by order dated 28.06.2012,had directed the third Additional District and Sessions Judge,Tirunelveli, to submit a report with regard to the age of the detenuon the date of commission of offence, after following the procedurecontemplated under the relevant Act. In response to the same, thethird Additional District and Sessions Judge, Tirunelveli, submitteda report on 13.07.2012, which also confirms that the date of birth ofthe petitioner's son is 26.12.1981 and the said report is based onthe school records. If it is so, on the date of commission ofoffence, viz., on 24.09.1999, the age of the detenu was only 17years, eight months and 28 days. Consequently, he is entitled for thebenefit of the Act. Apart from this, the learned Additional PublicProsecutor has relied on an order of a Division Bench of this Courtin M.Pattammal, Vs. Inspector of Police, reported in 2012 (2) MLJ624, which also supports the stands of the learned counsel for thepetitioner.4. In the case on hand, by virtue of the Judgment made inS.C.No.249 of 2001, dated 16.04.2003, the petitioner's son hadalready undergone imprisonment for a period of nine years. Since heis entitled for the benefit of Sections 15 and 16 of the Act and asthe issue involved in this Habeas Corpus Petition is covered by theJudgments, cited supra, we quash the sentence awarded on thepetitioner's son, by name, S.Kuttiyan @ Natarajan and direct hisrelease forthwith, if he is not required for detention in connectionwith any other case. Sd/-Deputy Registrar(Accounts) /True Copy/Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4To1.The Additional Sessions Judge, FTC No.I, Tirunelveli.2. -Do- Thro' The Principal Sessions Judge, Tirunelveli.3. The District Magistrate and District Collector, Tirunelveli.4. The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai – 9.5.The Superintendent of Central Prison, Palayamkottai, Tirunelveli District.6.The Inspector of Police, Valliyoor Police Station, Tirunelveli District.7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to MR.P.Ramaswamy, Advocate (SR.NO.27542) ORDER MADE INHABEAS CORPUS PETITION(MD).No.785 of 201121.08.2012NBNSV 3.9.12/4P/9C