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Jituna and Ors. Vs. State of Odisha - (High Court of Orissa) (11 Oct 2017)

Question with regard to juvenility can be raised at any time either during trial or during pendency of the appeal or revision or in any other proceeding pending in any Court of law

MANU/OR/0647/2017

Criminal

Present is an appeal under Section 374 of the Code of Criminal Procedure, 1973 filed by the convicts (Appellants) assailing the judgment and order of conviction and sentence passed by learned Additional Sessions Judge. It was contended that, an enquiry in respect of Appellant No. 1 should be concluded in terms of the provisions of Rule 12 (3)(a)(i) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 ('JJ Rules'). Inadvertently, the claim of juvenility could not be raised either before the learned trial Court or at any time before this Court, earlier. Thus, in view of the provisions under Section 7-A(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act), the Petitioner-Appellant No. 1 prayed for consideration of his case to declare his status as 'juvenile' under the provisions of the JJ Act and Rules.

Admittedly, plea of juvenility of the Appellant No. 1 was not raised either in course of trial or during pendency of this appeal before hand. Therefore, the contention raised by learned Standing Counsel, as to whether, such a plea can be raised at a belated stage during pendency of this appeal needs consideration. Section 20 of the JJ Act, makes a special provision in respect of pending cases, which specifies that, notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that, a juvenile has committed the offence. Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation to Section 20 of JJ Act, makes it abundantly clear that, the question with regard to the determination of juvenility can be raised and adjudicated in all pending cases including trial, revision, appeal or any other criminal proceeding in respect of the JCL in any Court and such question, if raised, has to be determined, even if the juvenile ceases to be so on or before the date of commencement of this Act, i.e., 1st April, 2001 and the provisions of the JJ Act shall apply as if the said provision was in force for all purposes and on material time when the alleged offence committed. Right of a JCL is protected under the provisions of the JJ Act. The right conferred in law on JCL cannot be brushed aside lightly. Thus, the right to raise question with regard to juvenility of the appellant can be raised at any time either during trial or during pendency of the appeal or revision or in any other proceeding pending in any Court of law in respect of a JCL.

In the case of Jitendra Singh @ Babboo Singh & Anr. vs. State of U.P., it was observed that, the provision starts with a non-obstante clause, which implies that the provisions have an overriding effect on all other provisions contained in the enactment. The provision deals with proceedings pending against a juvenile in any Court. The provision sanctions the continuance of such pending proceedings in the very same court, as if the JJ Act had not been enacted. The provision requires the Court seized of the matter to record a finding as to whether the juvenile has committed an offence. If the finding is against the juvenile in that he is found to have committed an offence, the court is required to forebear from passing an order of sentence and instead forward the juvenile to the Board, which shall then pass an order in accordance with the provisions of the Act, as if it had been satisfied on inquiry under the Act that the juvenile had committed an offence. In all pending cases including trial, revision, appeal or any other criminal proceedings the determination of juvenility shall be in terms of clause (1) of Section 2 of JJ Act, even if, the juvenile ceases to be so on or before the date of commencement of the JJ Act.

In view of the settled position of law, the stand taken by the learned Standing Counsel that the plea of juvenility cannot be raised at a belated stage during pendency of the appeal as it was not taken in course of trial, is inconsequential. Thus, Appellant No. 1 was competent to raise this plea during pendency of the appeal and he was a JCL on the date of commission of the offence. The proceeding in respect of the Appellant No. 1 cannot be held to be vitiated solely on the ground that the procedure as laid down under Sections 14 and 15 read with Section 7-A(2) of the JJ Act along with corresponding Rules were not followed. Thus, the case of Appellant No. 1 has to be examined on its own merit and if he is found guilty of the offence charged against him, he should not go unpunished.

In view of evidence of the witnesses, more particularly the evidence of PW-3, PW-7, PW-10 and PW-12 along with the postmortem report as well as the ballistic report and other ancillary documents, it is crystal clear that, Appellant No. 1 had fired at the deceased, as a result of which the deceased fell down. PW-7, the doctor who conducted autopsy, also opined that all the injuries are ante-mortem in nature. The external injury with corresponding internal injuries is consistent with shot gun injuries with a range of beyond the effect of fire and flame and within the range of gun powder. He also opined that, all the injuries combined together are fatal in ordinary course of nature. The external injury No. 1 with its corresponding internal injury, the external injury No. 9 and its corresponding internal injury are individually fatal. The death was due to shock and haemorrhage.

The active involvement of Appellant No. 1 in commission of the offence is proved beyond any reasonable doubt. Thus, there is no infirmity in the impugned judgment in convicting the Appellant No. 1 under Section 302/34 of IPC read with Section 25 of the Arms Act. Sub-clause (1)(g) of Section 15 of the JJ Act, makes it abundantly clear that, the juvenile can be sent to a special home for a maximum period of three years. In the case at hand, the Appellant No. 1 has been under incarceration for more than 15 years. Hence, the sentence awarded against the Appellant No. 1 is not sustainable and liable to be set aside.

The scope of Section 15 of the JJ Act and the fact that the Appellant No. 1 has, in the meantime, undergone imprisonment for more than 15 years, sentence imposed on Appellant No. 1 is set aside and matter remitted to JJ Board, Cuttack having jurisdiction to deal with the order to be passed under Section 15 of the JJ Act. Court while confirming the judgment and order of conviction of Appellant No. 1 under Section 302/34 of IPC, read with Section 25 of the Arms Act, sets aside the order of sentence.

Relevant : Jitendra Singh @ Babboo Singh & Anr. vs. State of U.P., reported in MANU/SC/0679/2013 : (2013) 2 SCC 193

Tags : CONVICTION   LEGALITY   JUVENILITY PLEA  

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