ISHFAQ ASHRAF NAJAR Vs. STATE OF J&K

JUDGEMENT

(1.) 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.

(2.) On 18th of April, 2016, the petitioner filed an application before the learned Chief Judicial Magistrate, Budgam, seeking protection under the Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter called as 'The Act') 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 the 5th day of November, 1991. In addition to this certificate, the petitioner supported his claim of juvenility on the basis of a discharge certificate issued by the Government, Higher Secondary Institute, Panzan, Budgam dated 14th September, 2007. The petitioner claimed that on 10th of June, 2009, i.e., the date the occurrence as alleged in the report laid by the police authorities before the Court of Chief Judicial Magistrate, Budgam, 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.

(3.) In the objections filed in answer to the aforesaid application of the petitioner, the prosecution contended that the said Act has come into force in the year 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. This plea found favour with the learned Chief Judicial Magistrate, as a consequence of which, he dismissed the application of the petitioner on the 28th day of April, 2016 and recorded the conviction and sentence against the petitioner on the same day.