RAKESH PARSOTTAMBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.M.R. Amin, learned counsel appearing for the petitioner and Mr.N.C. Sood, ld.APP, appearing on behalf of the respondent-State.

(2.) Invoking jurisdiction of this Court under Section 397 r/w. Section 401 of the Code of Criminal Procedure, 1973, the petitioner-orig.accused has prayed that the order dated 20th March, 2004 and 18th May, 2004, passed below application Exhs.9 and 12 by the ld.Additional Sessions Judge, Amreli, respectively, may be quashed and set aside and it may be ordered that the petitioner-accused on the date of commission of alleged offence was below 18 years of age and, therefore, the case against the present petitioner may be transferred to and tried by Juvenile Justice Court constituted under the Juvenile Justice Act, 1986 (hereinafter referred to as 'the Act, 1986') and the scheme of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act, 2000').

(3.) The application Exh.9 is an application preferred before the Court of Sessions dealing with the Sessions Case No.195 of 2001 filed on 03rd March, 2004. It is contended that the alleged offence has been committed on 02nd November, 1996 and, thereafter, the petitioner-accused has been arrested on 04th November, 1996. After completion of investigation, the present petitioner along with other accused persons is chargesheeted for the offence punishable under Sections 302, 324, 323, 447 and 114 of the Indian Penal Code and also under Section 135 of the Bombay Police Act. Though the police was aware about the fact that the petitioner-accused is a minor, he is wrongly chargesheeted by the police. Even for the sake of argument, if it is accepted that as per the scheme of the Act,1986, the petitioner being a male accused and was above 16 years of age, even then on the date of framing of the charge, the petitioner could not have been tried by the Court of Sessions because the Act, 1986, has been eclipsed by the Act, 2000. While rejecting the application Exh.9, the ld.Additional Sessions Judge held that on the date of commission of offence, the Act, 1986 was applicable. Not only that the case was even committed to the Court of Sessions in the month of July, 1997 in exercise of powers vested with the ld.JMFC under Section 209 of the Code of Criminal Procedure, 1973 and, therefore, as per the scheme of Section 20 of the Act, 2000, the petitioner can be tried with the other co-accused persons by the Court of Sessions. So the order passed below Application Exh.9 does not dispute the actual date of birth and the fact that on the date of incident, the petitioner was below 18 years of age and had completed 17 years, 6 months and 20 days. When the Court decided to frame the charge against accused persons, the petitioner again applied on 31st March, 2004, preferring an application Exh.12. Undisputedly, the date of birth of the present petitioner is 12th April, 1979 and it was neither argued before the ld.Additional Sessions Judge nor before this Court by the ld.APP that the petitioner had completed 18 years of age on the date of commission of the offence i.e. on 02nd November, 1996. It is one of the contention that as per the definition of 'Juveline' in the Act, 2000, the petitioner was juvenile on the date of commission of the offence as he was below 18 years of age on the date of commission of the offence under Section 3 of the Act, 2000. It is submitted and argued that pendency of inquiry or trial would not change the status of the present petitioner as juvenile within the meaning of Section 2(K) of the Act, 2000. Before framing the charge against the accused under Section 228 of the Code of Criminal Procedure, 1973, the ld.trial Judge is under obligation to ascertain as to whether any of the accused produced before him whether on the date of commission of offence was juvenile within the meaning of the provisions of the Act, 2000. If the answer is in affirmative, then the learned Judge cannot proceed with the trial against such accused and the Court is under obligation to hand over the case/inquiry to the Juvenile Justice Board constituted under Section 4 of the Act, 2000 in view of Section 4 r/w. Section 7 of the Act, 2000.