- (1.) The prayer in the Habeas Corpus Petition is to direct the respondents to produce the detenu Salavudeen, S/o Sydu Iqubal, Life Convict No.76888, detained at Central Prison, Coimbatore, before this Court and set him at liberty.
(2.) Brief facts leading to filing of this petition are as follows: (a) The petitioner is the mother of the detenu Salavudeen @ Shanawaz. He was born on 4.12.1979 and Birth Certificate of the same was registered on 7.12.1979 by the Birth and Death Registrar of the Coimbatore City Municipal Corporation, which is a genuine document to substantiate the age of her son and he was less than 18 years of age on the date of occurrence of the alleged offence on 2.9.1997. (b) The petitioner sent a representation on 23.7.2011 to the first and second respondents, stating that the detenu was a "juvenile" on the date of occurrence of the alleged offence on 2.9.1997. No action has been taken on the said representation. (c) The detenu was implicated as second accused in the alleged offence under Section 302 IPC said to have taken place on 2.9.1997; on the date of commission of the offence, the detenu was aged about 17 years 9 months and thus, he was a juvenile as per Juvenile Justice (Care and Protection of Children) Act, 2000, as amended (hereinafter referred to as 'the Act'), but he was tried as an adult in S.C.No.110 of 1999 on the file of the Sessions Court, Coimbatore and was convicted and sentenced to undergo life imprisonment, by judgment dated 30.12.1999, which was confirmed by this Court in Crl.A.No.238 of 2000, by a judgment dated 28.3.2003, which was also confirmed by the Supreme Court and thereafter, the detenu continued to languish in Central Prison, Coimbatore. (d) Section 7-A(1) of the Act, as amended by Act 33 of 2006, allows the claim of juvenility to be raised before any Court at any stage of the proceedings, even after disposal of the case, on the ground that the accused was a juvenile on the date of commission of offence. (e) The detenu was confined at Central Prison, Coimbatore for about 13 years. The continued detention of the petitioner's son in the hands of the second respondent is unjust, illegal and violative of Article 21 of the Constitution of India. Hence, the petitioner has filed this petition.
(3.) On behalf of the third respondent, the Inspector of Police, B-8 Variety Hall Road Police Station, Coimbatore City, has filed a counter affidavit, dated 10.10.2011, stating as follows: (i) On bifurcation of B.1 Bazaar Police Station, B.8 Variety Hall Road Police Station was formed in 1998 and number of pending cases including Tikmaram murder case was transferred to the new Police Station. On the statement of one Devilal on 2.9.1997 at about 11.30 am that his nephew Tikmaram, aged 24 years was stabbed with knives by some persons on the same day at 10.15 am and he succumbed on the way to hospital, a case was registered in B.1 Bazaar Police Station in Crime No.1545/1997 under Section 302 IPC. After due investigation, the charge-sheet was laid in the Magistrate Court against two persons, namely (i) Haroon Batcha and (ii) Salavudeen and the third accused Shahul Hameed died subsequently. The case was tried as S.C.No.110 of 1999 by the learned First Additional District and Sessions Judge, Coimbatore, who delivered the judgment on 30.12.1999 and convicted both the accused for the offence under Section 302 read with 34 IPC and sentenced each of them to undergo life imprisonment. (ii) Against the said judgment of conviction, both the accused filed appeal in Crl.A.No.238 of 2000 before this Court and the judgment was delivered by this Court on 28.3.2003, confirming the conviction and sentence imposed on both the accused. After a lapse of eight years, the mother of Salavudeen, one of the two convicts, filed this Habeas Corpus Petition on the ground that her son Salavudeen was aged about 17 years and 9 months only, on the date of commission of the offence on 2.9.1997. The alleged representation, dated 23.7.2011 of the petitioner to the first and second respondents have not reached the third respondent and hence, he had no occasion to peruse the same. (iii) The petitioner's son Salavudeen was tried in the case and his appeal was also heard by this Court and both the trial Court and this Court delivered concurrent conviction judgments against Salavudeen and his co-accused. The petitioner's son is not in illegal custody in the hands of the second respondent as alleged by the petitioner. The petitioner suppressed the real colour of her son Salavudeen, who figured as A.102 in the Serial Bomb Blasts which occurred on 14.2.1998 in Coimbatore City and he was found guilty in the said case of Coimbatore City B.1 Bazaar Police Station in Crime No.151 of 1998 for charges under Sections 120-B read with 109, 111, 114, 148, 149, 212, 302, 307, 353, 449, 465 and 471 IPC, Sections 3, 4(b), 5 and 6 of the Explosive Substances Act, Section 3 read with 25(1-B)(a) of the Arms Act and Section 3(i) and 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act and sentenced to undergo rigorous imprisonment for 13 years; for another charge under Section 153(a)(1) IPC, he was sentenced to undergo rigorous imprisonment for three years; he was also found guilty under a charge of Section 307 IPC (three counts) and sentenced to undergo rigorous imprisonment for seven years; he was also found guilty under a charge of Section 3 of the Explosive Substances Act and sentenced to undergo rigorous imprisonment for nine years; he was also found guilty under a charge of Section 4(b) of Explosive Substances Act and sentenced to undergo rigorous imprisonment for seven years; he was also fund guilty under a charge of Section 148 IPC and sentenced to undergo rigorous imprisonment for three years; he was also found guilty under a charge of Section 307 IPC and sentenced to undergo rigorous imprisonment for seven years, and hence, his present custody in the Central Prison, Coimbatore as a convict prisoner, is legal and not illegal as averred by the petitioner. (iv) The petitioner claims that her son was aged 17 years and 9 months only, on the date of 2.9.1997, when he murdered Tikmaram, but when the accused was arrested by the third respondent in the murder case, he claimed to be 19 years old, which has been carried over in all the records. In the charge-sheet, his age was mentioned as 19 years. He evaded the Police arrest and surrendered before the learned Judicial Magistrate and was taken on Police custody and reproduced in the Magistrate's Court after the Police custody. He was produced in the Magistrate's Court every time for remand extensions. But no such plea was made regarding his age on his behalf before the learned Magistrate. In the Sessions Court, the trial took place from 30.4.1999 to 30.12.1999 on 28 days. But the question pertaining to his was not raised at all by him during the Sessions trial also. Such a plea was not taken before this Court also, when the appeal was made on his behalf. The petitioner has filed a Birth Certificate, dated 09.08.2011, issued by the Coimbatore Municipal Corporation, to convince this Court that her son Salavudeen was born on 4.12.1979. Hence, the third respondent verified with the records of Birth Register and connected papers maintained by Coimbatore Municipal Corporation and the third respondent came to know that the petitioner Mahapoobjan filed an application on 1.8.2011 with Coimbatore Municipal Corporation for issuance of Birth Certificate by providing the name of the child born to her on 4.12.1979 for the first time to Coimbatore Municipal Corporation, thirty two years after the birth of the child. Only on receipt of such application, the Corporation Officials entered the name of Salavudeen for the first time in the Birth Register and issued the Birth Certificate on 9.8.2011. The Birth and Death Registrar of Coimbatore Municipal Corporation gave a letter dated 24.9.2011 to the third respondent, stating that Salavudeen's name was entered in the Birth Register for the first time only on the application of the petitioner Mahapoobjan, dated 2.8.2011, and hence, the present plea of the petitioner that her son Salavudeen was a juvenile on the date of the occurrence, has become infructuous. (v) The convicted person namely Salavudeen, Convict No.76888 of Central Prison, Coimbatore has undergone the imprisonment. When he was in the custody of jail authority on 6.6.2008, the said Salavudeen applied a petition to the Headmaster of Sri.S.P.Narasimmalu Naidu Memorial High School, Coimbatore, through the Jail Superintendent, Central Prison, Coimbatore, for obtaining the School Transfer Certificate for the studies of VI Std. in their School and the application was forwarded by the jail authority to the Headmaster of the said School and after receipt of the application, on 10.6.2008, the Headmaster of the School sent a reply to the jail authority stating that the applicant, the convicted person's name was mentioned as "iraJ cnrd;. j-bg iraJ ,f;ghy;. rpiwthrp vz;;/76888" and after careful perusal of the School record in the name of iraJ cwnrd;. no student studied in VI Std. in the application mentioned year. But the Headmaster stated in his reply that one @iraJ cwnrd; vd;gtnu gs;spapy; Mwhk; tFg;g[ goj;Js;sjhft[k; Fwpg;gpl;Ls;shh;@/ Due to the above reason, the Headmaster was not able to issue the School Transfer Certificate to the applicant. Subsequently, the applicant iraJ cwnrd; sent an application to the Headmaster for the same and on 13.06.2008, the Headmaster sent the same reply to the applicant and subsequently, on 19.06.2008, the convicted person (Convict No.76888) sent an application in the name of KfkJ cwnrd;. j-bg iraJ ,f;ghy; and in the said application, the applicant has signed his signature as iraJ cwnrd; and it was forwarded by the Jail Superintendent, Jail Authority, Coimbatore to the Headmaster and the Headmaster of the said School sent a reply to the Jail Authority stating that the Convict No.76888 name is Salavudeen, S/o Syed Iqbal, but the same Convict No.76888 was mentioned in the application made by the applicant iraJ cwnrd;. and it creates doubt and contradiction between two names, that is, Salavudeen and Syed Hassain with the same Convict No.76888 in Central Prison, Coimbatore and for the said reason, the Headmaster was unable to issue the School Transfer Certificate to the applicant and further requested the Jail Authority not to send such application in future. (vi) After knowing the facts, the third respondent has given the requisition to issue the School T.C. of the said petitioner's son (Convicted person) before the School authority and the Headmaster of the abovesaid School has given the School T.C. of one iraJ cwnrd;/ In that T.C. iraJ cwnrd; (Syed Hassain's) date of birth is mentioned as 23.05.1979. Therefore, at the time of occurrence in Cr.No.1545/1997 of B-1 Bazaar Police Station, the detenu was aged about 18 years and 3 months. (vii) In the affidavit filed by the petitioner, her son namely Salavudeen's date of birth is stated as 4.12.1979. The convicted person, namely Salavudeen has not produced substantial document to show that his name is Salavudeen @ Syed Ussan @ Syed Hassain and date of birth mentioned in the two records, namely Birth Certificate of Municipal Corporation as well as School T.C. are different and these two Certificates create more suspicion and doubt. The petitioner alone is strictly liable to prove the genuineness of the Certificate. (viii) The third respondent, while respecting the golden principles laid down by the Supreme Court and this Court, states that they would have been useful to the petitioner before the trial Court only during the trial stage, but not at this highly belated stage. (ix) Section 7-A(1) of the Act, 2000, as amended by Act 33 of 2006, provides for the accused person to raise a claim of juvenility before any Court at any stage. But the present case of murder of Tikmaram is not existing now as on the date before any Court. The petitioner has no right to invoke the provisions of Section 7-A(1) of the Act. (x) The petitioner's son is confined at the Central Prison, Coimbatore from the date of conviction. The petitioner did not avail and exhaust all the possible legal remedies in the trial stage before filing the present Habeas Corpus Petition, which is meant in law only for any emergency. The Supreme Court held that a litigant must exhaust the alternative and efficacious statutory remedy available to him before invoking extraordinary and prerogative jurisdiction of a High Court, and hence prayed to dismiss the Habeas Corpus Petition filed by the petitioner to release her son Salavudeen, son of Sydu Iqubal, who is detained at the Central Prison, Coimbatore for life imprisonment, on the orders of the First Additional District and Sessions Judge, Coimbatore in S.C.No.110 of 1999 on 30.12.1999, which was confirmed by this Court in Crl.A.No.238 of 2000 on 28.3.2003, as devoid of merits.;