2005 JTR(SC) 266
2005 27 AIC 59 ; 2005 2 AICLR 633 ; 2005 AIR(SC) 1560 ; 2005 AIR(SCW) 1047 ; 2005 2 CriCC 137 ; 2005 CriLR 291 ; 2005 CrLJ 1716 ; 2005 117 DLT 675 ; 2005 2 EastCrC(SC) 14 ; 2005 5 JT 536 ; 2005 2 RCR(Cri) 18 ; 2005 2 Scale 166 ; 2005 3 SCC 161 ; 2005 SCC(Cri) 667 ; 2005 2 WLC 201 ; 2005 KHC 457 ; 2005 2 Supreme 90
2005(2) Supreme 90
Supreme Court of India
(Under Art. 32 of the Constitution of India)
P. Venkatarama Reddi & A.K. Mathur, JJ.
Zakarius Lakra and Ors. —Petitioners
versus
Union of India and Anr. —Respondents
Writ Petition (Crl.) No. D20026 of 2004
Decided on 16-2-2005
Counsel for the Parties :
For the Petitioners : Colin Gonsalves, Sr. Advocate, Ms. Aparna Bhat, P. Ramesh Kumar and Vipin M. Benjamin, Advocates.
Act
Referred
:CONSTITUTION OF INDIA : Art.32
CRIMINAL PROCEDURE CODE : S.366, S.368
JUVENILE JUSTICE ACT : S.32, S.2(h)
(A) The Juvenile Justice Act provisions read alongside the Constitution of India Article 32 and sections of the Code of Criminal Procedure govern the present challenge to a death sentence. The writ petition under Article 32 raises the issue of the appellant's age at the time of the offence, invoking Section 2(h) of the Juvenile Justice Act which defines a juvenile, and Section 32 of the Act which provides for special provisions in the adjudication of offences by juveniles. The proceedings also implicate Section 366 and Section 368 of the Code of Criminal Procedure concerning the procedural aspects of appeals and reference to the High Court. The pivotal legal question revolves around whether the accused was a juvenile on 15.11.1994, which is critical because the Juvenile Justice Act interdicts the awarding of the death penalty if the accused was a minor at the time of the offence, thereby necessitating the application of the lesser alternative sentence of life imprisonment.
(B) The core legal principles underscore that in cases where the age of the accused is in doubt and the possibility of the accused being a juvenile cannot be excluded with certainty, the benefit of the doubt must be given to the accused, and the lesser penalty under the Juvenile Justice Act must apply. The court highlighted that the death penalty can only be imposed if it is proved beyond doubt that the accused was above the age of 16; otherwise, the inapplicability of the death penalty is mandated. The review petition was dismissed, but the curative petition procedure was allowed, indicating the correct remedial mechanism for such challenges.
Facts of the case:
The accused, parents of the appellant, filed a writ petition under Article 32 challenging the death sentence imposed by the Additional Sessions Judge, Dehradun, and confirmed by higher courts, on the grounds that the appellant was a juvenile at the time of the offence committed on 15.11.1994. The petitioner submitted a school certificate indicating the appellant's date of birth as 04.01.1980, along with other certificates from school authorities. The trial court and the High Court considered the appellant's admission of majority while opening a bank account, but overlooked the school certificate submitted with the appeal. The review petition based on age was dismissed.
Findings of Court:
The Supreme Court noted that the learned counsel was not seeking to reopen the trial but only to modify the sentence to life imprisonment based on the age evidence. The Court observed that the trial and high courts had not examined the school certificate annexed to the memorandum of appeal. It also pointed out that the conclusion on the majority was reached without scrutinizing this crucial document. The Court referred to its earlier decisions in Rupa Ashok Hurra and Raj Singh vs. State of Haryana, emphasizing that where the age is not conclusively proved to be above 16, the death sentence cannot be awarded.
Issues:
Whether the appellant was a juvenile at the time of the commission of the offence and whether the death sentence was legally tenable in view of the age evidence.
Ratio Decidendi:
The court held that where the age of the accused is in doubt and cannot be conclusively proved to be above 16 years, the death penalty cannot be awarded as it is mandatory to impose the lesser sentence of life imprisonment under the Juvenile Justice Act. The benefit of the doubt must be given to the accused, and the procedure for curative petition must be followed rather than a review petition.
Result:
The writ petition was dismissed subject to the observations made, without prejudice to the petitioners being allowed to file a curative petition, thereby leaving the remedy of converting the sentence to life imprisonment open for the accused.
(A) The Juvenile Justice Act provisions read alongside the Constitution of India Article 32 and sections of the Code of Criminal Procedure govern the present challenge to a death sentence. The writ petition under Article 32 raises the issue of the appellant's age at the time of the offence, invoking Section 2(h) of the Juvenile Justice Act which defines a juvenile, and Section 32 of the Act which provides for special provisions in the adjudication of offences by juveniles. The proceedings also implicate Section 366 and Section 368 of the Code of Criminal Procedure concerning the procedural aspects of appeals and reference to the High Court. The pivotal legal question revolves around whether the accused was a juvenile on 15.11.1994, which is critical because the Juvenile Justice Act interdicts the awarding of the death penalty if the accused was a minor at the time of the offence, thereby necessitating the application of the lesser alternative sentence of life imprisonment.
(B) The core legal principles underscore that in cases where the age of the accused is in doubt and the possibility of the accused being a juvenile cannot be excluded with certainty, the benefit of the doubt must be given to the accused, and the lesser penalty under the Juvenile Justice Act must apply. The court highlighted that the death penalty can only be imposed if it is proved beyond doubt that the accused was above the age of 16; otherwise, the inapplicability of the death penalty is mandated. The review petition was dismissed, but the curative petition procedure was allowed, indicating the correct remedial mechanism for such challenges.
Facts of the case:
The accused, parents of the appellant, filed a writ petition under Article 32 challenging the death sentence imposed by the Additional Sessions Judge, Dehradun, and confirmed by higher courts, on the grounds that the appellant was a juvenile at the time of the offence committed on 15.11.1994. The petitioner submitted a school certificate indicating the appellant's date of birth as 04.01.1980, along with other certificates from school authorities. The trial court and the High Court considered the appellant's admission of majority while opening a bank account, but overlooked the school certificate submitted with the appeal. The review petition based on age was dismissed.
Findings of Court:
The Supreme Court noted that the learned counsel was not seeking to reopen the trial but only to modify the sentence to life imprisonment based on the age evidence. The Court observed that the trial and high courts had not examined the school certificate annexed to the memorandum of appeal. It also pointed out that the conclusion on the majority was reached without scrutinizing this crucial document. The Court referred to its earlier decisions in Rupa Ashok Hurra and Raj Singh vs. State of Haryana, emphasizing that where the age is not conclusively proved to be above 16, the death sentence cannot be awarded.
Issues:
Whether the appellant was a juvenile at the time of the commission of the offence and whether the death sentence was legally tenable in view of the age evidence.
Ratio Decidendi:
The court held that where the age of the accused is in doubt and cannot be conclusively proved to be above 16 years, the death penalty cannot be awarded as it is mandatory to impose the lesser sentence of life imprisonment under the Juvenile Justice Act. The benefit of the doubt must be given to the accused, and the procedure for curative petition must be followed rather than a review petition.
Result:
The writ petition was dismissed subject to the observations made, without prejudice to the petitioners being allowed to file a curative petition, thereby leaving the remedy of converting the sentence to life imprisonment open for the accused.
Order
By this Writ Petition under Article 32 of the Constitution, the petitioners, who are the parents of the appellant in Criminal Appeal No. 824 of 2002, question the legality of the death sentence imposed on the appellant by the Additional Sessions Judge, Dehradun which was confirmed by the High Court on reference made to it and further confirmed by this Court on the appeal filed by the appellant. The petitioners prayed for quashing the death sentence on the ground that the appellant was a juvenile on the date of the commission of the offence i.e. 15.11.1994. According to the school certificate produced as ‘additional evidence’ along with this petition, his date of birth is 04.01.1980. It transpires that along with the memorandum of appeal, the appellant did file two certificates dated 28.04.2001 and 02.08.2002 issued by School authorities in West Bengal to the same effect but they were not brought to the notice of the Bench at the time of hearing of the appeal. It is not known whether it formed part of the relevant record furnished by the Registry to the amicus curiae who pleaded the case of the appellant. It is on the basis of this material that the learned counsel for the petitioners submits that the imposition of death sentence is not proper.
2. We would like to make it specifically clear that the learned counsel for the petitioners stated that he is not seeking for re-opening of the trial and for setting aside the conviction. He submitted that the limited relief sought for in this writ petition is to modify the death sentence to life imprisonment having regard to the age of the accused on the relevant date. Learned counsel submits that the genuineness and authenticity of the certificate can be got verified by directing an enquiry by named authority or Court.
3. A review petition was filed by the convicted appellant. In the review petition, the grounds raised were in regard to the age of the accused-appellant. In one of the grounds, it was pointed out that the school certificate filed by the petitioner along with the appeal was not taken into consideration. The learned counsel for the petitioners submits that apparently, this particular ground taken in the review petition would not have been noticed by the Court. The review petition was dismissed.
4. In view of the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4 SCC 388] this petition under Article 32 is not maintainable. The appropriate remedy is only to file a curative petition as per the procedure indicated by this Court in the said decision. Accordingly, we permit the petitioners to convert the present petition into curative petition by making necessary amendments and following due procedure.
5. Before closing, we may point out that the trial Court while hearing the accused on the question of sentence noted the submission of the accused that his age was 17 years on the date of occurrence and then answered the same as follows:
“His attention was drawn to the pass-book and the cheque-book and was apprised of the fact that the account could have been opened by him only if he had been major. Then he conceded the factum of majority on the date of occurrence.”
The contention regarding age of appellant was also dealt with by this Court which reads as follows:
“12. Regarding the age of the appellant, a contention has been raised that he was juvenile at the time of commission of crime on 15.11.1994 because he gave the age as 20 years in his statement recorded under Section 313 Cr.P.C. on 7.3.2001. Apart from the fact that on behalf of the appellant no proof was adduced regarding his age, the High Court noted that he admittedly opened the bank account in Punjab National Bank at Dehradun on 9.3.1994. The passbook and the cheque book were exhibited in trial. The High Court observed that the appellant would not have been in a position to open the account unless he was a major and declared himself to be so. That was also the view taken by the trial Court. The approach of the trial Court as well as the High Court on this aspect cannot be faulted.”
As already noted, the said conclusion was reached by the Bench (of which one of us was a member) without looking into the school certificate annexed to the memorandum of appeal.
6. We may also mention that the learned counsel for the petitioners has referred to the decisions of this Court in Raj Singh vs. State of Haryana [(2000) 6 SCC 759] and Gopinath Ghosh vs. State of West Bengal [1984 (Supp) SCC 228] wherein the plea of the offender being juvenile was entertained for the first time in this Court and appropriate relief was given. The learned counsel has also drawn our attention to the observations in Ramdeo Chauhan vs. State of Assam [(2001) 5 SCC 714] wherein R.P. Sethi, J. with whom Phukan, J. concurred observed as follows in paragraph 6:
“The contentions raised and the prayer made are admittedly beyond the scope of review. This petition can be dismissed only on this ground. However, being the case of death sentence, we have decided to consider the whole matter in depth to ascertain as to whether the petitioner is entitled to the benefit of the Act or not. We have further opted to consider that even if he is not proved to be juvenile, can he be given the benefit of his age on the ground of his allegedly being on the borders of the age contemplated under the Act for the purposes of awarding him the alternative sentence of imprisonment for life.”
Thomas, J. in his dissenting opinion, after referring to the doctor’s opinion of age in paragraphs 52 and 53 observed as follows:
“When the possibility of the petitioner having been a juvenile on the relevant date cannot be excluded from the conclusion by adopting such reasonable standards, the interdict contained in Section 22(1) of the Juvenile Act cannot be bypassed for awarding death penalty to the petitioner so long as the death penalty is permitted to survive Article 21 only if the lesser alternative can be foreclosed unquestionably. In other words, if the age of the petitioner cannot be held to be unquestionably above 16 on the relevant date its corollary is that the lesser sentence also cannot unquestionably be foreclosed. We have to abide by the declaration of law made by the majority of Judges of the Constitution Bench in Bachan Singh case.
For the aforesaid reasons I am persuaded to allow this review petition and alter the sentence of death to imprisonment for life.”
That case arose out of the review petition filed by the accused-appellant.
7. We have only considered it appropriate to refer to the contentions raised and citations given by the learned counsel so that they may receive due consideration when the curative petition is taken up for consideration by the larger Bench.
8. The Writ Petition is dismissed subject to the observations made above, without prejudice to the remedy left open to the petitioners to file curative petition.
Petition dismissed without prejudice to the remedy left open to petitioners to file curative petition.
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