SRINAGAR, Oct 20: High Court has ruled that a juvenile who has committed the offence before promulgation of Juvenile Justice (Care and Protection of Children) Act can take benefit of the Act.
Court of Justice M K Hanjura was hearing a petition filed by one Ishfaq Ashraf Najar seeking setting aside the sentence awarded to him by Trial Court without taking into consideration the age of petitioner at the time of commission of offence.
The petitioner has been convicted and sentenced to undergo five years rigorous imprisonment and a fine of Rs. 30,000 in case FIR No. 105/2009 of Police Station, Chadoora for an offence under Section 377 RPC by a judgment dated 28th of April, 2016 of the Chief Judicial Magistrate, Budgam.
Before passing of award of sentence Najar had filed an application before the Chief Judicial Magistrate, Budgam, seeking protection under the Juvenile Justice (Care and Protection of Children) Act, 2013 buttressed with the date of birth certificate issued in his favour by the Jammu and Kashmir State Board of School Education, which depicted that he was born on November 5, 1991.
The petitioner claimed that on the date the occurrence he was 17 years, 7 months and 5 days old and, as such, he was a juvenile and is therefore, entitled to take umbrage under the provisions of the Act.
However, prosecution vehemently contested the application of the petitioner, with the contention that the Act has come into force in 2013 and since the occurrence allegedly took place in the year 2009, therefore, the provisions of the Act will not apply to the case of the petitioner as it has a prospective application and not a retrospective one.
Justice Hanjura said the Trial Court has got swayed by the argument that the Act is prospective and not retrospective in application, which is bad in law and has resulted in the miscarriage of justice.
“Looking at the dictum of law, Section 21 of the Act will have its application to all cases at all material times when the alleged offence was committed, notwithstanding the fact that such benefit was not available under the previous legislation or before the amendment of the Act”, court said.
Court further added that raising of the age of the juvenile from 16 to 18 years has a ‘retrospective effect’ and the plea of juvenility can be raised at any time, even after the pronouncement of the judgment irrespective of the fact, whether any such plea has, or has not, been raised earlier.
“It is only the date of the commission of offence which is material and not the date on which cognizance has been taken or the charge has been framed or the conviction has been recorded. It was, therefore, incumbent on the part of the Trial Court to look into the issue of the juvenility of the petitioner raised before him by the petitioner”, reads the judgment.
“The order of the Trial Court has resulted in defeating the cause of justice inasmuch as the question of the juvenility of the petitioner has not been decided in accordance with the law”, court concluded. Court said, the authenticity and the veracity of the ‘Date of Birth Certificate’ issued in favour Najar by the State Board of School Education and the ‘Discharge Certificate’ issued by Higher Secondary Institute Panzan, Budgam has been brushed aside which could not have been done on the face of the law which depicts petitioner he was less than 18 years of age on the date of occurrence.
Court in this view sought an enquiry to determine the juvenility status claimed by the petitioner and directed the Registrar Judicial to conduct the same.