BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD)No.525 of 2007 Veerapandi alias Bathripandi .. Appellant/ Accused No.4 Vs. State, through the Inspector of Police, Silaimanl Police Station, Madurai. (Cr.No.181/2005) .. Respondent/Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 30.08.2007, of the learned Principal Sessions Judge, Madurai, in S.C.No.126 of 2007. !For Appellant ... Mr.Ananth C.Rajesh ^For Respondent ... Mr.N.Senthurpandian, Addl. Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by S.PALANIVELU,J)
Challenge is made to the judgment of the learned Principal
Sessions Judge, Madurai, dated 30.08.2007, made in Sessions Case No.126/2007,
wherein the appellant/ accused No.4, who stood charged along with five other
accused, under Sections 148 and 302 read with Section 34 IPC, on trial, was
found guilty under both the charges and sentenced to undergo one year rigorous
imprisonment for the first charge and life imprisonment with fine and default
sentence for the latter charge. Hence this appeal at the instance of accused
No.4.
2.The other accused, who also convicted by the learned trial
judge, have also filed separate appeals, namely Crl.A.No.515/2007 by accused
Nos.1 and 5, Crl.A.No.641/2007 by accused No.6 and Crl.A.No.656/2007 by accused
No.2. Since all the appeals arose out of the same judgment of the trial court,
all the appeals were clubbed and heard together and by the common judgment dated
04.03.2008 Crl.A.Nos.515, 525 and 656 of 2007 were dismissed and
Crl.A.No.641/2007 was allowed.
3.While the matter stood thus, on 19.03.2007, the learned
counsel for the appellant in Crl.A.No.525/2007 has filed a memo before the
Registray, based on which Crl.A.No.525/2007 was posted under the caption “for
being mentioned” on 20.03.2008. In the said memo, it is stated as under:
“The Appellant was convicted for an offence under sections 148 and 302 r/2
34 of the Indian Penal Code and against that he has preferred an appeal before
this Hon’ble Court in C.A.P.No.525 of 2007. The above appeal was came up for
final hearing before this Hon’ble Division Bench on 04.03.2008 and the same was
argued on merits. This Hon’ble Court after hearing the arguments, dismissed the
appeal.
On 04.03.2008 at about 8.00 p.m., the relatives of the appellant came to
the Counsel’s office and handed over some of the documents related with the
appellant. Once such document is a Birth Certificate of the Appellant, which
was issued by the Commissioner of Corporation of Madurai on 23.01.1998. ON
verification of the said Birth Certificate, it was found the appellant was born
on 24.08.1987. The said birth was registered with the Madurai Corporation on
04.09.1987 and its registration number was 5106.
The date of occurrence in the above case was on 13.03.2005. At the time
of occurrence, the appellant was only 17 years 6 months and 19 days. Hence, on
the dfate of occurrence, the appellant was a Minor. This fact was not brought
to the knowledge of the Appellant’s Counsel till 04.03.2008. The Appellant’s
Counsel come to have knowledge about the date of birth of appellant only at 8.00
p.m. on 04.03.2008. Hence he was not able to mention or represent before this
Hon’ble Court at the time of appeal hearing. Hence, the Memo. The Xerox copy
of the Birth Certificate is enclosed herewith.
Therefore, it is therefore prayed that this Hon’ble Court may be pleased
to accept this Memo and pass orders in C.A./No.525 of 2007 according to the date
of birth certificate enclosed herewith and thus render justice.”
4.Heard the learned counsel for the appellant and the learned
Additional Public Prosecutor for the State.
5.Learned counsel for the appellant would submit that on the
date of the alleged commission of offence, the appellant was a juvenile who had
not completed 18 years of age and therefore he is to be considered as a juvenile
in conflict with law as defined under Section 2(l) of the Juvenile Justice (Care
and Protection of Children) Act, 2000 (hereinafter referred to as “the Act”) and
hence he should have been tried by the Juvenile Justice Board constituted under
the provisions of the Act.
6.In support of his submission, the learned counsel draws the
attention of this Court to the copy of the Birth Certificate, dated 23.01.1998,
issued by the Corporation of Madurai, wherein it is mentioned a male baby was
born on 24th August, 1987 at Government Rajaji Hospital, Madurai and the names
of father and mother are mentioned as Packiam and Mallika. It is further
mentioned that the male baby was the appellant. The occurrence took place on
14.03.2005. Hence it is definite that the appellant/accused No.4 was a juvenile
at the time of commission of offence.
7.An obligation has been cast on the Court that where such a
plea is raised having regard to the beneficial nature of the socially oriented
legislation, the same should be examined with great care. When the Act provides
for enquiry by Juvenile Justice Board with regard to the offences reportedly
committed by a juvenile in conflict with law, the trial by the Sessions Court is
not sustainable.
8.Coming to the case on hand and the circumstances under which
the appellant herein was dealt with by the trial court, he was initially not
produced before the competent authority as prescribed under the Act and he was
not tried by the Juvenile Justice Board. In view of the above, the trial in
S.C.No.126/2005, insofar as the appellant/accused No.4, by the Principal
Sessions Court, Madurai, got vitiated. In view of the above, our judgment dated
04.03.2008, is recalled insofar as Crl.A.No.525/2007 is concerned and this
separate order is passed.
9.On the above said conclusion, the next question that arises
for consideration is what course of action has got to be adopted on account of
vitiation of the trial. It may be considered whether the case can be forwarded
to the Juvenile Justice Board to conduct the trial adopting the procedures
contained in the Act, but such exercise could not also be undertaken in view of
the fact that the appellant has presently 19 years of age. Similarly, the
matter to be tried again by the Juvenile Justice Board is not lawful. The
Hon’ble Supreme Court in the decision in Khunnu Yadav vs. Rajesh Madurya and
another – (2003) 10 SCC 291, while discussing the provisions of the Juvenile
Justice Act, 1986, has held that the crucial date for determining the status of
a person as juvenile is the date when the accused was brought before the
competent authority and not the date when the offence was committed.
10.In the light of the above observations, we are of the
considered opinion that the trial in S.C.No.126/2007 on the file of Principal
Sessions Court, Madurai, is vitiated and no further proceedings could be
undertaken in this matter, since the appellant has completed 19 years of age and
therefore the appellant is set at liberty.
11.With the aforesaid observation, the appeal stands disposed
of.
gb.
To:
1.The Principal Sessions Judge
Madurai.
2.The Inspector of Police
Silaiman Police Station
Madurai.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.