IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2009
CORAM
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSTICE RAJA ELANGO
H.C.P.No.807 of 2009
Arunachalam
S/o Renganathan .. Petitioner
-Vs-
1. The State represented by the
Director General of Prisons
Egmore, Chennai 600 008
2. The Superintendent of Police
Central Prison
Cuddalore
3. The Inspector of Police
Taluk Police Station
Villupuram
Villupuram District
(Crime No.47/96) .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, directing the respondents to produce the detenu Kumaran, son of Renganathan Gounder now confined in Central Prison, Cuddalore before this Honourable Court and set him at liberty.
For Petitioner :: Mr.R.Sankarasubbu
For Respondents :: Mr.V.R.Balasubramanian
Additional Public Prosecutor
ORDER
(Order of the Court was delivered by S.J.MUKHOPADHAYA, J.)
This petition has been filed for a direction to the respondents to produce the detenu, Kumaran, the brother of the petitioner, on the ground that his conviction under Section 302 IPC read with Section 34 IPC was illegal. According to the petitioner, his brother, the detenu, Kumaran, was born on 25th April, 1980 and was a juvenile at the time of the trial in S.C.No.178 of 1998 pending on the file of the learned Additional Sessions Judge, Villupuram. On the basis of a report filed before the Court showing the age of the detenu as 21 years on 18th March, 1997 and as such, on the date of occurrence, the detenu was a juvenile.
2. The learned counsel appearing on behalf of the petitioner submitted that as per Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the JJ Act”), at any stage of the proceedings, the claim of juvenility can be raised and admittedly, on the date of commission of offence, the detenu was a juvenile. Therefore, he is entitled for the relief as per Section 7-A, though he ceased to be a juvenile on the date of commencement of the Act. If the detenu would have been tried before a Juvenile Justice Board, he could not have been inflicted with any punishment, though any reformatory order could have been passed, and therefore the punishment inflicted is violative of Article 20(1) of the Constitution of India.
3. The learned Additional Public Prosecutor for the State opposed the case on the ground that a similar petition was earlier filed, which was dismissed by a Bench of this Court on 20th March, 2009 in Habeas Corpus Petition No.1803 of 2008. In reply, the learned counsel for the petitioner submitted that this Court had not considered the matter as per Section 7-A of the JJ Act.
4. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the State.
5. The question relating to the age of the detenu and the applicability of the one or other Act including the JJ Act fell for consideration in the earlier case of the detenu in Habeas Corpus Petition No.1803 of 2008. By judgment dated 20th March, 2009, the Court noticed the fact, as evident from the following paragraphs:
“4. A perusal of the affidavit filed by the petitioner reveals that the detenu was born on 25.04.1980 and on the date of offence, namely, 18.01.1996 he was only 16 years old, but the 3rd respondent filed a report before the trial court stating that the age of the detenu was 21 years on 18.03.1997. But it is pertinent to note that the affidavit is silent to the effect as to whether any dispute was raised by the detenu with regard to the date of birth mentioned in the report filed by the 3rd respondent before the trial court. However, now along with the present petition, the petitioner has filed a transfer certificate issued by the M.R.I.C.R.C.High School, Villupuram, to prove the age of the detenu. The said document shows that the detenu was born on 25.04.1980.
5. Per contra, the 2nd respondent, Superintendent of Police, Central Prison, Cuddalore, filed a counter stating that the detenu was convicted and sentenced to undergo imprisonment for life for the offence punishable under section 302 read with Section 34 IPC and also to pay a fine of Rs.5,000/-, in default to undergo six months rigorous imprisonment, by the learned Additional Sessions Judge, Villupuram in S.C.No.178 of 1998 on 18.04.2000. Subsequently, he was released on bail on 11.07.2000 as per the order passed by this Court in Crl.M.P.No.2833 of 2000 in C.A.No.373 of 2000 dated 11.07.2000. Thereafter, the detenu was recommitted to jail for undergoing the remaining period of sentence since the sentence awarded by the Additional Sessions Judge, Villupuram was confirmed by this Court in the said appeal , on 12.08.2005. He was admitted in Central Prison, Cuddalore on 12.08.2008. In the counter, it is further stated that as per the warrant issued by the learned Additional Sessions Judge, Villupuram on 18.04.2000, consequent to conviction and sentence passed in S.C.No.178 of 1998 the age of the detenu was mentioned as 22 years as of the year 2000. But the date of birth of the detenu, as per the transfer certificate dated 04.08.2008, issued by the M.R.I.C.R.C. High School, Villupuram, is 25.04.1980. Since the detenu attained the age of 28 years at the time of admission in the prison on 12.08.2008 to undergo the remaining period of life imprisonment, the prayer of sending him to Borstal School at this stage does not arise and there is no violation of Article 21 of the Constitution of India. Hence, the petition is liable to be dismissed.
……
9. At this juncture, the learned counsel appearing for the petitioner made an alternative plea and submitted that since the detenu was less than 16 years on the date of offence, the benefit under Juvenile Justice (Care and Protection of Children) Act, 2000 can be extended to him, since the detenu will fall within the meaning of ‘Juvenile’ as defined under Section 2(k) of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as ‘the Act). Section 2(k) of the said Act reads as follows:
“Juvenile” or “child” means a person who has not completed eighteen years of age”.
10. In this regard, the learned counsel appearing for the petitioner, by referring to various provisions of the said Act, elaborately argued that when a juvenile was brought before the Court for trial, an enquiry should be made with regard to his age and if he is found to be Juvenile, then he should be sent before the Board constituted under the Act.”
Having considered the aforesaid aspect and the other submissions, in dealing with the relevant provisions of law including the JJ Act, 2000, the Court observed as follows and dismissed the case:
“18. We have carefully considered the submissions and rival submissions made on either side. Since the learned counsel for the petitioner has not pressed the original prayer, namely, to transfer the detenu to the Borstal School from central Prison, Cuddalore, in view of the definition found in the Borstal Schools Act, we are not dealing with the same. Now, this Court is concerned only with the alternative prayer, namely, extension of benefit under the Act to the detenu. Though the learned counsel for the petitioner has relied on plethora of cases, on a careful consideration of those cases, we find that the benefit was extended by some way or other to the detenus while dealing with the criminal appeals and not in the petition filed under Article 226 of the Constitution of India. On going through the decision cited by the learned Additional Public Prosecutor, namely, (2005) 3 SCC 551 (cited supra), we are of the view that it is squarely applicable to the facts on hand. From the facts of the case, it could be safely inferred that as on 01.04.2001, the detenu had crossed the age of 18. Therefore, he cannot derive the benefit for the offence committed in the year 1996. Further, it is very clear that the benefit could be extended by applying section 20 of the Act only to the accused, who are within the age of 18 on the date of enforcement of Act namely 01.04.2001. Therefore, by relying upon the said judgment, we hold that the detenu cannot derive the benefit under the Act.
19. With regard to the maintainability of this petition, we are of the opinion that only if the confinement is illegal, the same can be questioned under the writ jurisdiction by way of habeas corpus petition. But in this case, the detenu was sent to jail pursuant to the judgment passed by the Sessions court, which was confirmed by this Court and thus he is only a convict prisoner, serving the sentence awarded to him by a Court of law. Under such circumstances, at the maximum, it can be contended that the trial conducted by the Sessions Court jointly implicating the Juvenile along with the co-accused is an irregular trial so far as the detenu is concerned, and in the absence of any opinion of the court of appeal a failure of justice has in fact been occasioned and thus much prejudice had been caused to the detenu. In the absence of any plea raised before the trial court as well as the appellate court in respect of the finding by the trial court that the detenu had crossed the age of 16 at the time of the trial on 18.03.1997 and further since the prayer in this petition is confined only to transfer the detenu to the Borstal School, when he has now crossed the age of 28 years even assuming his date of birth as on 25.04.1980, in consideration of the entire materials placed on record and the case law on the subject, we have no hesitation to hold that the present imprisonment, which the detenu is undergoing, pursuant to a proceedings of the court, cannot be questioned in the writ jurisdiction, which would fall outside the scope of the Habeas corpus petition. Under these circumstances, this court is not inclined to express any opinion with regard to the detenu’s entitlement for the benefit under the Juvenile justice Act of 1986 or otherwise under the provisions of the Act of 2000, since the criminal proceedings before the trial court as well as before the appellate court have come to a finality regarding the merits and demerits of the conviction and sentence passed against the detenu.”
6. The learned counsel appearing on behalf of the petitioner heavily relied on Section 7-A of the JJ Act and submitted that whenever a claim of juvenility is raised before the Court and the Court is of the opinion that an accused person is a juvenile, so as to determine the age of such person, the Court should make an enquiry after taking into consideration of the evidence. But we are not inclined to exercise such a discretion at this stage for the following reasons:
(a) The detenu was convicted on 18th April, 2000. The Transfer Certificate dated 4th August, 2008 was not brought to the notice of the trial Court nor any prayer was made for determination of the age of the detenu. Before the trial Court, it was said that the age of the detenu was 21 years, which was accepted. After more than eight years of conviction, the Transfer Certificate was obtained on 4th August, 2008. Therefore, such a certificate cannot be relied upon.
(b) Section 7-A of the JJ Act was inserted by Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of 2006) and came into effect from 22nd August, 2006. The amendment having come into effect in 2006, there was no occasion for the trial Court to decide the age in terms of Section 7-A.
(c) The advantage of Section 7-A, though applies to an accused who was a juvenile at the time of occurrence and can take such a plea during trial or even in appeal, but, once the conviction reached its finality, for the subsequent filing of a petition for habeas corpus, the benefit of Section 7-A cannot be derived.
We find no merit in this habeas corpus petition. It is, accordingly, dismissed.
ss
To
1. The Director General of Prisons
Egmore
Chennai 600 008
2. The Superintendent
Central Prison
Cuddalore
3. The Inspector of Police
Taluk Police Station
Villupuram
Villupuram District
4. The Public Prosecutor
High Court,
Madras