Chellathurai @ Natarajan v. The State of Tamil Nadu

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 24/1/2012C O R A MTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARANDTHE HONOURABLE MR.JUSTICE P.DEVADASSHABEAS CORPUS PETITION(MD) No.881 of 2011Chellathurai @ Natarajan...Petitioner Vs1. The State of Tamil Nadu rep. By its Secretary Home Department Secretariat Fort St. George Chennai.2. The Inspector General of Prisons/ The Additional Director General of Police (Prisons) Office of the Inspector General of Prisons Anna Salai Chennai.3. The Superintendent of Prison Madurai Central Prison Madurai.4. The Inspector of Police Theppakulam Police Station Madurai....RespondentsPRAYER Petition filed under Article 226 of the Constitutionof India praying for issuance of a writ of Habeas Corpus toquash the sentence in S.C.No.489 of 1999 awarded by the learnedIV Additional Sessions Judge (PCR), Madurai, confirmed by theHon'ble Madurai Bench of Madras High Court in C.A.No.933 of 2002on 23.11.2009 and direct the third respondent to produce thedetenu namely Chellathurai @ Natarajan, son of Thattiyaraja, https://hcservices.ecourts.gov.in/hcservices/ 2aged 30 years from Central Prison, Madurai and set him atliberty.For Petitioner: Mr.R.AlagumaniFor Respondents: Mr.T.Mohan, Additional Public Prosecutor - - - - - -ORDER[Order of the Court was made by P.DEVADASS, J]1. The petitioner, a lifer, seeks his release from jail,since he is a Juvenile in conflict with law, at the time whenthe offence was committed.2. This case involves certain interesting questionsconcerning claiming of benefit under the Juvenile Justice Act,such as whether it can be claimed in writ proceedings, whetherit can be claimed retrospectively. If so, what procedure andthe modalities, the Court has to follow and when at the timejuvenility is claimed, the convicted became an adult person,what would be the fate of the life sentence as confirmed by thisCourt and in that event what the Court has to do.3. According to Mr.R.Alagumani, learned counsel for thepetitioner, on 18.4.1999, when the offence was committed,petitioner was below 18 years, however, on 11.7.2001, thetrial Court sentenced him to life. As per Section 16 of theJuvenile Justice (Care and Protection of Children) Act, 2000(shortly, hereinafter (New JJ Act), a Juvenile cannot besentenced to death or life. At the most, as per Section 15 ofthe Act, he can be sentenced upto three years. No doubt, eitherin the trial Court or in this Court, when the Criminal Appealwas heard, his juvenility was not raised, as per law, even now,it can be raised. In as much as the petitioner is in jail formore than six years, he may be released from jail.4. The learned counsel for the petitioner cited a decisionof this Court in H.C.P.(MD) No.223 of 2008 {CHENDU Vs. 1. THESUPERINTENDENT, CENTRAL JAIL, PALAYAMKOTTAI, TIRUNELVELIDISTRICT AND ANOTHER delivered on 8/7/2008 (unreported)}. Hehas also cited the following decisions:-(i). UPENDRA KUMAR VS. STATE OF BIHAR reported in {2005 (3)SCC 592},(ii). DHARAMBIR Vs. STATE (NCT OF DELHI) AND ANOTHERreported in {2010 (5) SCC 344}, https://hcservices.ecourts.gov.in/hcservices/ 3(iii). DAYANAND Vs. STATE OF HARYANA reported in {(2011) 2SCC 224}, (iv). LAKHAN LAL Vs. STATE OF BIHAR reported in {(2011) 2SCC 251} and(v). BHIM @ UTTAMGHOSH Vs. STATE OF WEST BENGAL (2011) 2MLJ (Crl) 482 (SC)5. The learned Additional Public Prosecutor, replied thatthe petitioner cannot raise it for the first time, that too inthis writ proceedings. In the Criminal Appeal, his convictionand sentence were also upheld by this Court.6. We have considered the rival submissions. Perused theaverments in the petition, counter, the materials produced andthe decisions cited at the Bar.7. In S.C.No.489 of 1999, before the learned AdditionalSessions Judge (PCR) Madurai, petitioner/A.1 and one Subbiah/A.2were prosecuted for offences under Sections 302 r/w 34 IPC andSection 341 IPC for having killed one Kalimuthu in Madurai on18/4/1999. 8. On 11/7/2001, the learned Additional Sessions Judgefound them guilty under Section 302 r/w 34 IPC, and 341 IPC;and sentenced each of them under Section 302 r/w 34 IPC to lifeand fined each Rs.300/- with default sentence under Section 341IPC. 9. In this Court, in Criminal Appeal No.993 of 2002,petitioner challenged the said conviction and sentence. On23/11/2009, the Criminal Appeal was dismissed. Consequently,his conviction and sentence were confirmed. 10. Now, for the first time, in this writ proceedings filedunder Article 226 of the Constitution of India, he raises thequestion of Juvenility for the purpose of claiming benefit underthe New JJ Act.11. In UMESH CHANDRA VS. STATE OF RAJASTHAN {(1982) SCC(Cri.) 396}, the Honourable Apex Court held that the benefit ofJuvenile Justice Act can be claimed retrospectively, it has tobe decided on the date when the offence was committed and not onthe date when punishment was imposed. But, subsequently, inARNIT DAS Vs. STATE OF BIHAR {2000 SCC (Crl) 962} UMESH CHANDRA(supra) was disturbed. The Honourable Apex Court held thatclaim of Juvenility has to be decided not on the date when theoffence was committed but on the date when punishment wasawarded. Thus, it held that the benefit can be claimed onlyprospectively. https://hcservices.ecourts.gov.in/hcservices/

412. ARNIT DAS (supra) was doubted in PRATAP SINGH Vs. STATEOF JHARKHAND {2005 (3) SCC – 551}. By the time, The JuvenileJustice (Care and Protection of Children) Act, 2000 came intoforce with effect from 1/4/2001.13. In PRATAP SINGH (supra), a Constitutional Bench wentinto the question and revived UMESH CHANRA (cited supra). Thus,juvenility can be claimed retrospectively even under the newJuvenile Justice Act with reference to offence, which wascommitted during the period when the old Juvenile Justice Actwas in force. 14. The aftermath of PRATAP SINGH, is insertion ofExplanation to Section 20 and insertion of Section 7 A to theJuvenile Justice Act, 2000 through an amendment in 2006. 15. Section 20 of the New J.J Act runs as under:-"Notwithstanding anything contained in thisAct, all proceedings in respect of a juvenilepending in any Court in any area on the date onwhich this Act comes into force in that area,shall be continued in that Court as if this Acthad not been passed and if the Court finds thatthe juvenile has committed an offence, it shallrecord such finding and instead of passing anysentence 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 beensatisfied on inquiry under this Act that ajuvenile has committed the offence."16. Section 20 is very clear that the Juvenility can beclaimed in any proceedings before any Forum whether the case waspending or whether the case was disposed of. Such a claim canbe made even proceedings such as HCP proceedings initiatedbefore the Honourable High Court. 17. In CHENDU Vs. 1. THE SUPERINTENDENT, CENTRAL JAIL,PALAYAMKOTTAI, AND ANOTHER (H.C.P. No.223 of 2008 order dated8.7.2008), a Division Bench of this Court granted the benefit ofJuvenile Justice Act to the writ petitioner.18. Now, UPENDRA KUMAR (supra), DHARAMBIR (supra), DAYANAND(supra) and LAKHAN LAL (supra) affirms the view that the benefitof Juvenility can be claimed even subsequently, when theoffender had crossed 18 years when he is eligible to claim atthe time when the offence was committed. https://hcservices.ecourts.gov.in/hcservices/

519. In BHIM ALIAS UTTAM GHOSH Vs. STATE OF WEST BENGALreported in (2011) 3 SUPREME COURT CASES (Cri) 844, wherein atparagraph 11, it has held as follows:-"11. It is plain from the language of theExplanation to Section 20 that in all pending cases,which would include not only trials but evensubsequent proceedings by way of revision or appeal,etc., the determination of juvenility of a juvenilehas to be in terms of clause (l) of Section 2, evenif the juvenile ceases to be a juvenile on orbefore 1.4.2001, when the 2000 Act came into force,and the provisions of the said Act would apply as ifthe said provision had been in force for allpurposes and for all material times when the allegedoffence was committed."In paragraph 14 and 15, it has held as follows:-14. Proviso to sub-section (1) of Section 7 –A contemplates that a claim of juvenility can beraised before any court and has to be recognised atany stage even after disposal of the case and suchclaim is required to be determined in terms of theprovisions contained in the 2000 Act and the Rulesframed thereunder, even if the juvenile has ceasedto be so n or before the date of the commencement ofthe said Act. The effect of the proviso is that ajuvenile who had not completed eighteen years of ageon the date of commission of the offence would alsobe entitled to the benefit of the 2000 Act as if theprovisions of Section 2 (k) of the said Act, whichdefines "juvenile" or "child" to mean a person whohas not completed eighteenth year of age, had alwaysbeen in existence even during the operation of the1986 Act.15. It is, thus, manifest from a conjointreading of Sections 2 (k), 2 (l), 7 – A, 20 and 49of the 2000 Act, read with Rules 12 and 98 of theJuvenile Justice (Care and Protection of Children)Rules, 2007 that all persons who were below the ageof eighteen years on the date of commission of theoffence would be treated as juveniles even if theclaim of juvenility is raised after they haveattained the age of eighteen years on or before thedate of the commencement of the 2000 Act and wereundergoing sentences upon being convicted." https://hcservices.ecourts.gov.in/hcservices/

620. Section 7 A of the New J.J Act runs as under:-"7 A. (1) Whenever a claim of juvenility israised before any Court or a Court is of theopinion that an accused person was a juvenile onthe date of commission of the offence, the Courtshall make an inquiry, take such evidence as may benecessary (but not an affidavit) so as to determinethe age of such person, and shall record a findingwhether 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 beraised before any Court and it shall be recognisedat any stage, even after final disposal of the caseand such claim shall be determined in terms of theprovisions contained in this Act and the rules madethereunder, even if the juvenile has ceased to beso on or before the date of commencement of thisAct.(2). If the Court finds a person to be ajuvenile on the date of commission of the offenceunder sub-section (1), it shall forward thejuvenile to the Board for passing appropriateorder, and the sentence, if any, passed by a Courtshall be deemed to have no effect.21. Under the old Juvenile Justice Act, 1986, sixteen yearsfor female Juveniles and 18 years for male Juveniles have beenprescribed as upper age. But, under the New J.J Act, uniformly18 years has been prescribed both for the male and femaleJuveniles. 22. To claim the benefit of new J.J Act, the date when theoffence was committed have to be ascertained. In the casebefore us, the offence was committed on 18/4/1999. Petitionerclaims that he was born on 12/5/1981. 23. In the circumstances, this Court directed the PrincipalSessions Judge, Madurai to hold an enquiry to determine the ageof the petitioner as on 18/4/1999. Accordingly, the learnedJudge, conducted enquiry and submitted his report. We haveperused it. As per the report, as on 18/4/1999, thepetitioner was 17 years old. We concur with the report. Thus,the petitioner is entitled to have the benefit of New J.J Act.24. As per Section 16 of the New J.J Act, a Juvenile cannotbe sentenced to death nor sentenced to life. As per Section 15of the Act, at the most, he can be ordered to be detained in aSpecial Home upto three years. So, awarding life sentence to a https://hcservices.ecourts.gov.in/hcservices/ 7Juvenile in conflict with law is against law. A sentence of aCourt must be in accordance with law. No Court can pass anysentence as against express provisions of a Statute. 25. There is complete embargo in Section 16 of the JuvenileJustice Act for imposing life sentence upon a Juvenile inconflict with law. At the time when conviction was renderedwhether the Juvenile was aware of it or claimed it or not,whether it was awarded by the trial Court or confirmed by ahigher Forum, it will be against Section 16 of the New J.J Act.As we have already seen that all these days though thepetitioner was slept over or not aware of his such eligibility,even now, in this writ proceedings also he can claim suchbenefit.26. As per Section 15 of the New J.J Act, a Juvenile inconflict with law can be kept in a Special Home upto threeyears. Now, as on date, the petitioner spent six years inprison. This period has been stated by the petitioner in hisaffidavit. This has also been verified through the learnedAdditional Public Prosecutor and it is found correct.27. Actually, now the petitioner is an ex-Juvenile inconflict with law, as, he is now 30 years old. Now, he cannotbe sent to Special Home. In such a case what should be done. 28. In UPENDRA KUMAR Vs. STATE OF BIHAR (2005) 3 SCC 592)when similar situation arose, Hon'ble Apex Court passed thefollowing order:-"5. The course this Court adopted inGOPINATH GHOSH (1984 Supp SCC 228), as also inBHOLA BHAGAR (1997) 8 SCC 720) was to sustainthe conviction but, at the same time, quash thesentence awarded to the convict. In the presentcase, at this distant time, the question ofreferring the appellant to the Juvenile Boarddoes not arise. Following the aforesaiddecisions, we would sustain the conviction ofthe appellant for the offences for which he hasbeen found guilty by the Court of Session, asaffirmed by the High Court, at the same time,however the sentence awarded to the appellant isquashed and the appeal is allowed to thisextent. Resultantly, the appellant is directedto be released forthwith if not required in anyother case."29. Earlier, this Court in H.C.P.(MD) No.223 of 2008 inCHENDU (supra), having faced with similar situation, passed thefollowing order:- https://hcservices.ecourts.gov.in/hcservices/ 8"Following the course adopted by the SupremeCourt, we allow this Habeas Corpus Petition. Theorder of conviction has been confirmed by thisCourt in Crl.A.No.497 of 2007. But the juvenilecannot be denied the benefit of the provisions ofthe Act, which had already come into force and asper Section 16 of the said Act, no juvenile canbe sentenced to death or life imprisonment.Therefore, we direct the detenu to be releasedforthwith, unless his presence is required inconnection with any other case."30. In DHARAMBIR (supra), before Honourable Supreme Court,in a Criminal Appeal, a similar situation arose. Though theappellant was entitled to the benefit of Juvenile Justice Act,but by the time, when his case reached the Honourable SupremeCourt, he had crossed his 18 years long back. The HonourableApex Court tackled the situation as under:-"19. In the instant case, as per theinformation furnished to us, the appellant hasundergone an actual period of sentence of 2 years4 months and 4 days and is now aged about thirty-five years. We feel that, keeping in view theage of the appellant, it may not be conducive tothe environment in the special home and to theinterest of other juveniles housed in the specialhome, to refer him to the Board for passingorders for sending the appellant to a specialhome or for keeping him at some other place ofsafety for the remaining period of less thaneight months, the maximum period for which he cannow be kept in either of the two places.20. Accordingly, while sustaining theconviction of the appellant for the aforestatedoffences, we quash the sentences awarded to himand direct his release forthwith, if not requiredin any other case. The appeal succeeds partly tothe extent indicated above."31. As the petitioner has spent six years in prison as ondate and in view of Section 16 of the Juvenile Justice (Care andProtection of Children) Act 2000 and the decision of the SupremeCourt reported in 2005 (3) SCC 592 (UPENDRA KUMAR Vs. STATE OFBIHAR), the petitioner is directed to be released forthwith, https://hcservices.ecourts.gov.in/hcservices/ 9unless his presence is required in connection with any othercase. Habeas Corpus Petition is disposed of accordingly.Sd/-Assistant Registrar (RTI)/True Copy/ Sub Assistant RegistrarmvsTo1. The IV Additional District Sessions Judge (PCR), Madurai.2. Through The Principal Sessions Judge, Madurai3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.4. The Commissioner of Police, Madurai5. The Superintendent, Madurai Central Prison, Madurai.6. The Inspector of Police, Teppakkulam Police Station, Madurai.7. The Secretary, Home Department, Secretariat, Fort St.George, Chennai8. The Inspector General of Prison/The Additional Director General of Police(Prison) Office of the Inspector General of Prison Anna Salai, chennai.9. The Director General of Police, Mylapore, Chennai10. The District Collector, Madurai.+1 CC Mr.R.Alagumani (Advocate) SR.NO.2054 SS/05.03.2012/9P/12COrder made inH.C.P.(MD) No.881 of 201124/1/2012