The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.141 of 1991 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 27th May, 1991 passed by the learned Assistant Sessions Judge, Jajpur in Sessions Trial No.213 of 1985. ---- 1. Nanda @ Ananta Charan Behera …. Appellant 1. State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.D.P. Dhal, Sr. Advocate For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM MR. JUSTICE D.DASH Date of Hearing : 25.06.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 27th May, 1991 passed by the learned Assistant Sessions Judge, Jajpur in Sessions Trial No.213 of 1985 arising out of G.R. Case No.70 of 1985. By the impugned judgment of conviction and order of sentence, the Appellant (accused) having been convicted for CRA No.141 of 1991 Page 1 of 10 commission of the offence under section 376 (2) of the Indian Penal Code, 1860 (for short, ‘the IPC’), has been sentenced to undergo rigorous imprisonment for eight (8) years and pay fine of Rs.5,000/- (Rupees Fine Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the said offence with a further direction that in the event of realization of fine amount, the same shall be paid to the Informant towards compensation. 2. It is pertinent to state here that this Appellant, having faced
Legal Reasoning
the first round of trial, stood acquitted of the charge by order dated 13.03.1986 passed by the learned Assistant Sessions Judge. Challenging the said judgment of acquittal dated 13.03.1986, the Informant, who happens to be the father of the victim, had filed CRLREV No.298 of 1986. This Court, by order dated 14.08.1990 passed in CRLREV No.298 of 1986, while setting aside the judgment of acquittal passed by the Trial Court, had remitted the matter to the Trial Court for hearing the argument and pass the judgment afresh. It is then the Trial Court has held the Appellant guilty for committing the offence under section 376 (2) of the I.P.C. and accordingly, he has been sentenced as afore-stated. CRLA No.141 of 1991 Page 2 of 10 At this juncture, it stands as the absolute necessity to state that the Appellant, while moving application for bail during the first round of Trial, had specifically stated that he was below the age of sixteen years as on the date of commission of the offence. The learned Assistant Sessions Judge, while allowing the prayer for grant of bail to the Appellant in Criminal Misc. Case No.2 of 1985, had in fact taken that as a ground to hold that further detention of the Appellant of such tender age would not be in the interest of justice. However, the matter remained at that stage when that issue was not further raised and considered during the Trial in the first round. Be that as it may, when the matter was remitted to the Trial Court by order of this Court passed in CRLREV No.298 of 1986, the Appellant raised that issue again by specifically filing an application on 25.05.1991 that he was to get the benefit under the Orissa Children Act, 1982 (for short, ‘the Children Act’), which was then in force as he was falling within the definition of ‘Child’ as provided in the said Act. The Trial Court, in the second round of the Trial, has dealt the said petition as under:- “Accused present. Addl. P.P. is also present. Advocate for the accused files a petition to accept the certified copy of order in Crl. Misc. Case No.2/85, certified copy dated 16.03.1985 issued by the Headmaster and certificate issued by Board of Secondary Education, Orissa and to CRLA No.141 of 1991 Page 3 of 10 consider the same in arriving at regarding the age of the accused. Heard. In view of the specific direction given by His Lordship in Crl. Revision No.298/96, this Court is precluded from allowing any additional evidence in this case. Since the age of the accused has nothing to do with the merit of the present case and in view of the direction of the of the Hon’ble Court such documents cannot be accepted at this stage. Any document pointing to the age of the accused can be considered, if there would be any occasion for hearing on the question of sentence. Heard arguments from both sides. Call on 27.05.1991 for judgment. Accused as before.” When the second round of Trial was concluded recording the finding of guilt against the accused for committing the offence under section 376(2) of the IPC, the Appellant, by filing the present Appeal, very much raised that issue again that he, being a ‘Child’ on the date of commission of the offence, the Trial should vitiate as it was not held in conformity with the provisions contained in the Children Act and thus the judgment of conviction and order of sentence are vulnerable. 3. The present Appeal, being heard, an order was passed on 18.01.2008. The said order reads as under:- “8. I have considered the rival contentions of both the parties in the present case at hand, as laid down by the Apex court, it is the statutory obligation of the trial court, where the plea of juvenile is raised to adjudicate the said CRLA No.141 of 1991 Page 4 of 10
Legal Reasoning
issue afresh. There was an impediment before the Trial Court not to entertain any evidence adduced by the appellant inasmuch as this Court by the Revisional Order dated 14.08.1990 remanded the matter to the trial court for disposal in accordance with law. Although there was a direction not to permit either party to lead in the proceeding, yet, the said further evidence direction must be construed to be limited to evidence vis-(cid:224)-vis merits of the rival claims. In other words, I am of the opinion that while both the parties could not be permitted to lead evidence on merit of the case, yet, since the trial court was required to act in accordance with law, the said obligation to permit evidence of age was to in accordance with the Orissa Children Act, 1982. Once the accused-appellant has raised the pela of age, it was incumbent upon the trial court to determine the age before proceeding further in the matter; 9. In view of the circumstances narrated hereby above, I am of the view that since the alleged occurrence took place on 30.01.1985, i.e., 22 years ago, in the interest of complete justice, I direct the Assistant Sessions Judge, Jajpur to determine the age of the accused-appellant as on the date of occurrence by affording an opportunity to the learned counsel for the accused to lead any evidence on this issue and/or by relying upon any evidence already on record. Accordingly, the registry is directed to send back the lower court record to the Assistant Sessions Judge, Jajpur along with a copy of this order for the purpose of determining the age of the appellant on the date of occurrence. After determination of the age, a repot be submitted to this Court by the Assistant Sessions Judge for consideration in the present appeal. Learned Assistant Sessions judge is directed to do well to complete the entire exercise within a period of three CRLA No.141 of 1991 Page 5 of 10 months from the date of receipt of the LCR in accordance with the directions contained in this order. After the report is prepared, the same along with the LCR again be sent back to this court for consideration in the present appeal.” In pursuance of the above direction, the Trial Court has submitted its report dated 23.05.2008. The said report reads as under:- “In the circumstances, as discussed above, it is held that the date of birth of the accused-petition is 6th June, 1969 as reflected in the School Admission Register where he had studied and in his Matriculation Certificate vide Ext.A. Therefore, on calculation, the age of the accused- appellant is found to be Fifteen Years Seven Months and Twenty-Four days as on the date of occurrence, i.e., 30th January, 1985.” The above report prepared after holding the inquiry would show that on the date of occurrence, i.e, 30.01.1985, the age of the Appellant was 15 Years 7 Month and 24 Days. 4. Heard Mr.D.P.Dhal, learned Senior Counsel for the Appellant and Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State. 5. It was submitted by Mr.Dhal, learned Senior Counsel for the Appellant that the Appellant, in view of his age, as determined, was clearly falling within the definition of ‘Child’ as given in section 2(d) of the Children Act. He submitted that as Page 6 of 10 CRLA No.141 of 1991 provided in section 3(1) of the said Children Act, a ‘Delinquent Child’ means a ‘Child’, who has been found to have committed an offence. He further submitted that as per section 14 of the said Children Act, notwithstanding anything contained in Code of Criminal Procedure, 1973 (for short, ‘the Code’), the Government may, by notification, constitute for any area specified in the notification, one or more Children’s Courts for exercising the powers and discharging the duties conferred on such Court in relation to Delinquent Children under the Act when sub-section 2 of section 14 of the Children Act provides that the Children’s Court shall consist of such number of Magistrate forming a Bench as the Government think fit to appoint of whom one shall be designated as the Senior Magistrate and every such Bench shall have the powers conferred by the Code on a Judicial Magistrate of the First Class. He submitted that said Children’s Court, as required under sub-section 3 of section 14 was to be assisted by a panel of two honorary social workers possession such qualification as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the Government and as required under section 21 of the Children Act, when a child having been charged with an offence appears or is produced before a Children’s Court shall hold the inquiry in accordance with the CRLA No.141 of 1991 Page 7 of 10 provisions of Chapter-IV and may, subject to the provision of this Children Act, make such order in relation to the Child as it deems fit. The inquiry was to be held as required under section 31 of the Children Act following the procedure for trial of summons cases. According to him, section 33 of the Children Act provides a presumption as to the determination of the age and particularly sub-section 2 of said section contained that the order of the Competent Authority as regards determination of age shall not be deemed to be invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a Child, and the age recorded by the Competent Authority to be the age of the person so brought before it shall, for the purpose of this Children Act, be deemed to be the true age of that person. He contended that the Children’s Court then after having recorded the finding that the child has committed an offence, was required to take into account the circumstances as indicated in Clause-(a) to (e) of Section 34 of the Children Act. He, therefore, submitted that the Appellant’s conviction and consequential imposition of sentence in a regular trial cannot be sustained as the trial stands vitiated. 6. In the given case, thus keeping in view of the age of the Appellant at the time of alleged incident resulting the commission of the offence by the Appellant, it ought to have been Page 8 of 10 CRLA No.141 of 1991 an inquiry following the provisions of the Act and the Rules made thereunder. This, having not been done, a regular trial has been held in respect of this Appellant and there he has finally been convicted and sentenced. Therefore, in my considered opinion the trial stands vitiated and the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 7. Having said, as above, the question now arises as to whether the Appellant would be directed to face in inquiry/trial as contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2015, which is now in force. In order to address the above question, the record, being perused, it is found that when the Appellant was less than sixteen years of age at the time of alleged incident and his present age is 54+ and as per the submission of Mr.Dhal, learned Senior Counsel for the Appellant, the Appellant having now married, is maintaining his family living on cultivation and doing petty business when no report stands against the Appellant that he was involved in any criminal activity during all these periods and he too was in custody for some time in past. Taking all these factors into account and further keeping in view the age of the Appellant, being a ‘Child’ at the time of alleged commission of the offence, since he has undergone mental agony of CRLA No.141 of 1991 Page 9 of 10 a criminal trial instead of inquiry, as contemplated under the Act for a period of more than 39 years and 6 months, this Court is not inclined to follow the route of remitting the matter to the Juvenile Justice Board now presently functioning under the Juvenile Justice (Care and Protection of Children) Act, 2015 for being further dealt for said allegations as that would at this distance of time serve no useful purpose and meet the ends of justice. 8. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 27th May, 1991 passed by the learned Assistant Sessions Judge, Jajpur in Sessions Trial No.213 of 1985, are hereby set aside. The bail bonds executed by the Appellant stands cancelled. Basu (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.141 of 1991 Page 10 of 10