The Jammu and Kashmir and Ladakh High Court recently ruled that the provisions of J&K Juvenile Justice Act 2013 are retrospective in nature and accordingly the age of juvenility has to be taken as 18 years and not 16 years, which was the age of juvenility under the Act of 1997, even though that was in force at the time of commission of the alleged occurrence.
The bench comprising Justice Sanjay Dhar was hearing a plea challenging the judgment of conviction and sentence passed by Chief Judicial Magistrate Budgam. The petitioner at the same time had invoked jurisdiction of the High Court under Section 561-A of J&K Cr. P. C (Pari Materia with Sec 482 CrPC) seeking a direction that the petitioner be declared as juvenile in conflict with law and that he may be admitted to bail.
The petitioner had inter a challenged his conviction on the ground that even if the occurrence had taken place at the time when the provisions of the of the Act of 1997 were in force, which provided for age of juvenility as less than 16 years, still then the age of juvenility of the petitioner should have been determined with reference to the legal provisions which were in force at the time when his claim of juvenility was considered by the trial court.
Taking recourse to the available record the bench noticed that a challan for commission of offence under Section 377 RPC came to be filed against the petitioner herein before Chief Judicial Magistrate,Budgam. The record further revealed that during the pendency of the trial, the petitioner had filed an application before the learned CJM seeking a declaration that he is a juvenile. The application came to be dismissed by the learned Magistrate on the ground that at the time of the occurrence i.e., 10.06.2009, the provisions of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 1997 were in operation and, as such, only a person who was below 16 years of age qualified to be a juvenile and since petitioner was more than 16 years of age at the time of the occurrence he cannot be declared as juvenile. Resultantly the petitioner came to be convicted by the trial court in terms of the judgment dated 28.04.2016 and it was this judgement which was the subject matter of challenge before the bench.
The moot question for consideration before the bench was as to which law would be applicable to the instant case, whether it would be the law that was in force at the time when the occurrence took place or the law that was in force when the application of the petitioner claiming juvenility was considered by the trial court.
Adjudicating upon the matter Justice Dhar observed that the occurrence, which is subject matter of the case, is alleged to have taken place on 10.06.2009 and at that relevant time the provisions of the Act of 1997 were in operation. In the year 2013, (Care and Protection of Children) Act, 2013 J&K Juvenile Justice came into force and by virtue of Section 69 of the said Act, the Act of 1997 came to be repealed.
The bench recorded that Sec 21 of JJ Act 2013 is amply clear that clear that even in pending cases including trial, revision or appeal, the determination of juvenility of a juvenile in conflict with law has to be undertaken in terms of Clause (n) of Section 2 of the Act of 2013 even if the juvenile ceases to be so on or before the date of commencement of the Act. The explanation further provides that the provisions of the Act shall apply, as if the said provisions had been in force for all purposes when the alleged offence was committed.
"The purport of this provision is that even in the case of pending matter or matters, which are at the revisional or appellate stage or in other words, which have not acquired finality, the issue with regard to determination of juvenility of a child in conflict with law has to be governed by the provisions contained in the Act of 2013. It is pertinent to mention that in terms of the Act of 1997, the age of juvenility in case of a male child was fixed as upto 16 years, whereas in terms of Section 2 (n) of the Act of 2013, the same has been fixed as 18 years", Justice Dhar observed.
In order to add weight to the said preposition of Law the bench found it worthwhile to record the observations of supreme in Hari Ram Vs. State of Rajasthan and Anr (2009) wherein SC after taking into consideration effect of Section 20 of the Juvenile Justice Act 2001, which is in para materia with Section 8 of the Act of 2013, came to the conclusion that the provisions of the Juvenile Justice Act, 2001 have been given retrospective effect and, accordingly, the Court had held that a juvenile, who had not completed 18 years on the date of commission of the offence was also entitled to the benefits of the Act of 2000, as the provisions of Section 2(k) of the said Act had always been in existence even during the operation of 1986 Act.
Having held that the petitioner was a juvenile at the time of the occurrence, the proceedings against him had to be conducted in accordance with the provisions contained in the Act of 2013 but he has been tried under the procedure provided for adult accused and accordingly the trial of the petitioner before the learned Chief Judicial Magistrate is, therefore, without jurisdiction and is vitiated, observed the bench.
"Court is of the opinion that the petitioner was a juvenile on the date of commission of the offence and he has already undergone considerable jail sentence, partly as an under-trial and partly as a convict and, as such, the appeal filed by him deserves to be allowed and the same is, accordingly, allowed without going into merits of the case and without passing any consequential order of holding of fresh trial against the petitioner in accordance with the provisions of the J&K Juvenile Justice (Care and Protection of Children) Act, 2013, or subsequent legislation that has come into operation", the bench concluded.
Case Title:Ishfaq Ahmad Najar Vs State of J&K
Citation : 2022 LiveLaw (JKL) 98