Dismissed

Jaison.v.George, v. the State of Kerala

Kerala HC9 Oct 2019Crl.Rev.Pet/962/2019

Case brief

AI extract

What is this about?

A criminal revision petition challenged the dismissal of an application to treat the accused as a juvenile. The court held that the petitioner, who was 18 years and 9 months old when the offence was committed, ceased to be a 'child in conflict with law' upon attaining the age of eighteen years, consistent with Supreme Court precedent.

What did the court decide?

The revision petition was dismissed, affirming the trial court's finding that the petitioner was not a child in conflict with law.

Jaison.v.George, Vs the State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.M.BABU

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WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941

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Crl.Rev.Pet.No.962 OF 2019

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SC 281/2017 OF ADDITIONAL SESSIONS COURT - II, ALAPPUZHA

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REVISION PETITIONER/ACCUSED

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JAISON.V.GEORGE, S/O. GEORGE PHILIPOSE, VADAKKE MANNIL VEEDU, NARANAM MOOZHIL, PANCHAYATH, ATHIKKAYAM, RANNI, PATHANAMTHITTA

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BY ADVS. SRI.TITUS MANI SRI.T.G.RAGESH SRI.BINNY THOMAS SRI.P.A.JACOB

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RESPONDENT/COMPLAINANT

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THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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BY SRI.C.N.PRABHAKARAN, SR.PP

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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JUDGMENT

Petitioner is arraigned an accused in a sessions case. Commission of an offence under Sec.20(b)(ii)(B) of the NDPS Act is the accusation against him. He contends him to be a child in conflict with law. He moved an application before the court of session requesting to forward him to the juvenile justice board for holding an inquiry by the board whether he committed the offence alleged against him. His application was dismissed. The trial court found him not a child in conflict with law. The order dismissing his application is under challenge before this court.

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Heard Sri.T.G.Ragesh, the learned counsel for the petitioner and Sri.C.N.Prabhakaran, the learned senior public prosecutor.

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The petitioner produced a copy of his birth certificate. It is annexe-A1. He was born on 2.8.1997. The offence, if

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committed, was committed on 30.5.2016. The age of the petitioner as on that day was 18 years 9 months and 28

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days, which was why his application met dismissal. The trial court said that the petitioner completed the age of eighteen years on the date of commission of the offence.

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The question is whether the petitioner is a child in conflict with law to be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, the J.J.Act of 2015). Sec.2(12) defines 'child' and Sec.2(13) defines 'child in conflict with law'. The definitions are (i) 'child' means a person who has not completed eighteen years of age and (ii) 'child in conflict with law' means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. The petitioner contends that a person completes eighteen years of age only on the previous midnight of his 19^th birthday. According to the petitioner, he is a child

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in conflict with law since he allegedly committed the offence before his nineteenth birthday.

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The contention of the petitioner is without merit. A person cannot be considered a child or a child in conflict with law as defined in Sec.2(12) and (13) of the J.J.Act of 2015 till the previous midnight of his 19^th birth anniversary. What do the two definitions do mean by saying that a child or a child in conflict with law is a person who has not completed eighteen years of age is that he has not attained the age of eighteen years, or, in other words, he is under eighteen years of age. The definitions do not at all suggest that he continues to be a child or a child in conflict with law till he attains the age of nineteen years. He ceases to be a child when he attains the age of eighteen years. Thereafter he is not a child in conflict with law if he commits an offence. No other interpretation is possible.

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There are provisions in the J.J.Act of 2015 itself to reject the interpretation attempted by the petitioner as one impossible. Sec.2(35) defines 'juvenile' to mean a child below the age of eighteen years. When that be so, it cannot be said that a person who is above the age of eighteen years is a child or a child in conflict with law if he is under nineten years of age. Sec.6(1) reads as follows :

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Any person, who has completed eighteen years of age, and is apprehended for committing an offence when he was below the age of eighteen years, then, such person shall, subject to the provisions of this section, be treated as a child during the process of inquiry.

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The words “below the age of eighteen years” appearing in Sec.6(1) are underscored by me to supply emphasis. If the interpretation of the petitioner is correct, the words used in Sec.6(1) would have been 'below the age of nineteen years' instead of the words 'below the age of eighteen

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years'. The expression 'who has completed the age of eighteen years' and the expression 'when he was below the age of eighteen years', both used in Sec.6(1), have the same meaning. He cannot be a person who is above eighteen years of age, but below nineteen years of age. The provisions referred to above support the conclusion that no one can be a child in conflict with law unless the offence is committed by him before he attains the age of eighteen years.

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A boy who did not attain the age of sixteen years or a girl who did not attain the age of eighteen years was a juvenile as defined in Sec.2(h) of the repealed Juvenile Justice Act, 1986 (hereinafter referred to as the J.J.Act of 1986). According to the learned counsel for the petitioner, to say a person has not attained the age of sixteen or eighteen years is different from saying that a person has not completed eighteen years of age. It is not possible to draw any such distinction. The expression

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may be different, but the meaning conveyed is the same. A person who has not completed eighteen years of age is a person who has not attained the age of eighteen years, and not nineteen years. In this connection it is apposite to refer to Sec.3 of the Majority Act, 1875.

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Sec.3(1) of the Majority Act states that every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. The expression that one attains the age of majority on his completing the age of eighteen years as is stated in Sec.3(1) of the Majority Act and the expression in Sec.2(12) and (13) of the J.J.Act of 2015 that a child and a child in conflict with law mean a person who has not completed eighteen years of age convey one and the same meaning. How the age of a person is to be computed is stated in sub-section (2) of Sec.3 of the Majority Act. The sub-section provides that in computing the age of any person, the day on which he was born is to

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be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. It is thus clear that no one is a minor on and after his eighteenth birthday. Similarly, no one can claim any protection or privilege under the J.J.Act of 2015 as a child in conflict with law if he commits any offence on and after his eighteenth birthday. He cannot contend that he is a child till his nineteenth birth anniversary. He ceases to be a child on his attaining the age of eighteen years.

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The view taken above gets support from the decisions of the apex court in Earati Laxman v. State of Andhra Pradesh (AIR 2009 SC 1816) and Hari Ram v. State of Rajasthan [(2009) 13 SCC 211] . In Earati Laxman (supra), the J.J.Act of 1986 and the Majority Act were considered. It was held that a person would attain a particular age at the midnight of the day preceding the anniversary of his birthday. The petitioner herein who attained the age of

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eighteen years on 2.8.2015 was not a child thereafter and therefore could not be a child in conflict with law on 30.5.2016 when he allegedly committed the offence.

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Sec.2(k) and (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the J.J.Act of 2000) may be referred to here. Under Sec.2(k), 'juvenile' or 'child' means a person who has not completed eighteen years of age. Sec.2(l) defines the term 'juvenile in conflict with law' to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. The expression in Sec.2(k) and (l) of the J.J.Act of 2000 and the expression in Sec.2(12) and (13) of the J.J.Act of 2015 are the same, namely, 'has not completed the age of eighteen years'. In Hari Ram (supra) the apex court considered the J.J.Acts of 1986 and 2000. The apex court has indicated in Hari Ram (supra) that one of the reasons for enacting the J.J.Act of

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2000 has been to achieve the object of prescribing a uniform age of eighteen years for both boys and girls. Therefore no one is a child in conflict with law if he commits an offence after attaining the age of eighteen years.

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The learned counsel for the petitioner has placed reliance on the decision of this court in Aswin V.K. v. State of Kerala (2015 (1) KHC 726). The learned single judge who has decided Aswin (supra) after considering the J.J.Acts of 1986 and 2000 has held that the expression 'attaining the age of eighteen years' is different from the expression 'completed the age of eighteen years'. It is also held that a person is a juvenile in conflict with law within the meaning of Sec.2(l) of the J.J.Act of 2000 till the previous day of his nineteenth birthday since he completes eighteen years of age only on the said previous day. The two decisions of the Supreme Court of India referred to above were not placed before the learned

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single judge when Aswin (supra) was pronounced. Aswin (supra) is not good law in view of Earati Laxman (supra) and Hari Ram (supra).

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I conclude. The petitioner completed eighteen years of age as on the date of the alleged commission of the offence by him. He was therefore not a child in conflict with law as on that day. The additional sessions judge was right in holding so. The revision fails. It deserves only a dismissal.

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