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Kasturi v/s The Inspector of Police, Kallugumalai Police Station, Tuticorin District & Another

    H.C.P.(MD)NO.952 of 2012

    Decided On, 24 September 2012

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA & THE HONOURABLE MR. JUSTICE A. SELVAM

    For the Petitioner: S. Durairaj, Advocate. For the Respondents: K. S. Duraipandian, Additional Public Prosecutor.



Judgment Text

(Habeas Corpus Petition filed under Article 226 of the Constitution of India to quash the sentence awarded in S.C.No.180 of 2007 dated 09.06.2008 on the file of the Principal Sessions Judge, Tuticorin and confirmed in Criminal Appeal No.332 of 2008 dated 01.07.2009 and set at liberty the petitioner's Son Venkatesh @ Durai, Son of Balu detained in Central Prison, Palayamkottai.)

VINOD K. SHARMA, J.

The petitioner prays for issuance of a Writ, in the nature of Habeas Corpus for release of the detenu Venkatesh @ Durai, Son of Balu, detained in Central Prison, Palayamkottai on being convicted in S.C.No.180 of 2007 dated 09.06.2008 by the learned Principal Sessions Judge, Tuticorin and confirmed in Criminal Appeal No.332 of 2008 by this Court on 01.07.2009.

2. The petitioner is the mother of the detenu / sole accused in S.C.No.180 of 2007 on the file of the learned Principal Sessions Judge, Tuticorin for offences under Section 302, 307 and 392 read with 397 I.P.C. The detenu was sentenced to undergo life imprisonment, and R.I for 7 years respectively with fine. The sentences were ordered to run concurrently.

3. It is submitted that the date of birth of the accused / detenu is 25.04.1990, and in proof thereof, the petitioner has placed on record the Birth Certificate issued by the Department of Municipal Administration and Water Supply under Section 12 / 17 of the Registration of Births and Deaths Act, 1969 read with Rule 8 of the Tamil Nadu Registration of Births and Deaths Rules 2000).

4. The authenticity of the Birth Certificate is not disputed by the State.

5. Once the date of birth of the accused / detenu Venkatesh is taken to be 25.04.1990, then on the date of commission of the offence i.e., on 15.09.2006, the accused was aged 16 years 4 months and 21 days, therefore was entitled to the benefit under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act 2000.

6. It is the contention of the petitioner, that the detenu cannot be directed to undergo imprisonment for life or detained in custody as his detention and custody is in violation of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act 2000.

7. In support of this, reliance is placed on the Judgment of the Hon'ble Supreme Court in BALU @ BAKTHAVACHALU ..VS.. STATE OF TAMIL NADU (2008 CRL. L. J. 2006).

8. On consideration, we find that this Habeas Corpus Petition deserves to succeed.

9. The Hon'ble Supreme Court in DHARAMBIR ..VS..STATE (NCT OF DELHI) (2010 (5) S.C.C. 344), after recording a finding that accused was Juvenile, laid down as under:-

'17. Having held so, the next question for consideration is as to what order on sentence is to be passed against the appellant for the offences committed by him under Sections 302 and 307 read with Section 34 IPC, correctness whereof has not been put in issue before us.

18. Section 15 of the Act of 2000 provides for various orders which the Juvenile Justice Board (for short 'the Board') may pass against a juvenile when it is satisfied that the juvenile has committed an offence, which includes an order directing the juvenile to be sent to a special home for a period of three years. Section 16 of the Act of 2000 stipulates that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature that it would not be in his interest or in the interest of other juveniles in a special home to send him to such special home and that none of the other measures provided under the Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. Proviso to sub-section (2) of Section 16 of the Act of 2000 provides that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the said Act i.e. for three years.'

10. The Hon'ble Supreme Court, again in the case of MOHAN MALI AND ANOTHER ..VS.. STATE OF MADHYA PRADESH (2010 (6) S.C.C. 669) directed the release of the juvenile / accused, as he had already undergone more than three years of imprisonment, by holding as under :-

'8. What is of relevance is the fact that Section 7-A of the 2000 Act allows a claim of juvenility to be raised before any court at any stage even after final disposal of the case and speaks of the procedure which the court is required to adopt when such claim of juvenility is raised.

9. Section 20 of the 2000 Act specially provides for the procedure to be followed in pending cases and reads as follows:

'20. Special provision in respect of pending cases.-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.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.'

What is to be noticed in the aforesaid section is that it makes provision for continuance of trials which had been commenced prior to the coming into operation of the 2000 Act. While providing that the trial could continue before the court, if it was found that the juvenile had committed an offence, the court would be required to record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Justice Board, which could then pass orders in respect of that juvenile in accordance with the provisions of the 2000 Act.

10. Section 64 of the 2000 Act deals with a situation where a juvenile in conflict with law is already undergoing sentence at the commencement of the Act, and the same reads as follows:

'64. Juvenile in conflict with law undergoing sentence at commencement of this Act.-In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of this Act:'

11. The said provision has to be read along with Sections 7-A and 20 of the 2000 Act, together with Rule 98 of the 2007 Rules, which deals with disposed of cases of juveniles in conflict with law, and provides as follows:

'98. Disposed of cases of juveniles in conflict with law.-The State Government or as the case may be the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, determine his juvenility in terms of the provisions contained in the Act and Rule 12 of these Rules and pass an appropriate order in the interest of the juvenile in conflict with law under Section 64 of the Act, for the immediate release of the juvenile in conflict with law whose period of detention or imprisonment has exceeded the maximum period provided in Section 15 of the said Act.'

12. In the facts of this case, we are faced with a situation where the juvenile, Dhanna Lal, had already been tried along with adults and had been convicted under Sections 302/34, 326/34 and 324/34 IPC and was sentenced to life imprisonment, out of which he has already undergone about 9 years of the sentence. Rule 98 of the 2007 Rules, in our view, squarely applies to Appellant 2 Dhanna Lal's case. His case is to be considered not only for the grant of bail, but also for release in terms of the said Rule, since he has completed more than the maximum period of sentence as provided under Section 15 of the 2000 Act.

13. The legal position has been clearly explained in HariRam case and does not, therefore, require any further elucidation in this case.

14. Having regard to the fact that Appellant 2 Dhanna Lal, was a minor on the date of commission of the offence, and has a

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lready undergone more than the maximum sentence provided under Section 15 of the 2000 Act, by applying the provisions of Rule 98 of the 2007 Rules read with Sections 15 and 64 of the 2000 Act, we allow the appeal as far as he is concerned and direct that he be released forthwith. The bail application filed on his behalf is also disposed of, accordingly. 15. Let the appeal, as far as the other accused, Mohan Mali, is concerned, be listed for hearing separately.' 11. This case, is squarely covered by the decisions of the Hon'ble Supreme Court in the cases of DHARAMBIR and MOHAN MALI (supra). 12. In the result, this Habeas Corpus Petition is allowed. While maintaining the Conviction awarded by the learned Principal Sessions Judge, Tuticorin in S.C.No.180 of 2007 dated 09.06.2008, confirmed by this Court in Criminal Appeal No.332 of 2008 dated 01.07.2009, the Sentence is ordered to be suspended and the Accused / Detenu is directed to be released from custody forthwith, if his presence is not required in any other case.
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