- (1.) This writ petition has been preferred against following judgment and orders:-- (I) Judgment dated 17/22nd June, 2005 (Annexure-1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 172 of 1989 and 172-A of 1989, (II) Judgment dated 12th July, 2005 passed by the Additional Chief Judicial Magistrate, Latehar in S.T. Case No. 172 of 1989/Juvenile Tr. No. 97 of 2005 (Annexure-2 to the memo of the petition), and (III) Memo No. 264 dated 7th February, 2006 issued under the seal and signature of the Under Secretary to the Govt. of Jharkhand, Department of Home (Annexure to supplementary affidavit filed by the petitioners). These petitioners, who were admittedly aged 16 at the time of commission of the offence, were tried jointly with major persons and were convicted vide judgment of conviction dated 17/22nd June, 2005, mainly for the offence punishable under Sections 302/34, 148, 307/34 I.P.C. and for quantum of punishment, matter was referred to learned Juvenile Justice Board-cum-Addl. Chief Judicial Magistrate, Latehar under Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000. This judgment is at Annexure-1 to the memo of this writ petition, which is under challenge mainly on the ground that-- (a) There is total lack of jurisdiction on the part of the Addl. Sessions Judge, Fast Track Court, Latehar in conducting sessions trial of these writ petitioners, who were admittedly juvenile as on the date of occurrence, jointly with the major persons. At the date of commission of offence all the petitioners were admittedly below the age of 16 years and they were juveniles even as per the provisions of earlier Act, namely Juvenile Justice Act, 1986 and therefore, the Additional Sessions Judge, Fast Track Court, Latehar cannot conduct the trial of these juvenile delinquents jointly with the major persons as per Section 24 of the Juvenile Justice Act, 1986. (b) As per Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, no joint proceeding of juvenile and a person who is not a juvenile can be conducted by the trial court. Section 20 of the Act of 2000 is applicable to those accused persons, who were in the age group of more than 16 years, but less than 18 years because of amendment in Section 2(1) of the Act, 2000, which was brought into force to nullify the effect of the ratio decidendi of a judgment passed by the Hon'ble Supreme Court in the case of Pratap Singh vs. State of Jharkhand & Another, 2005 3 SCC 551. (c) In the decision rendered by the Hon'ble Supreme Court in the case of Hari Ram vs. State of Rajasthan & Another, 2009 13 SCC 211, which is a judgment delivered after the amendment in Section 2(1) of the Act of 2000 was brought into force on 22nd August, 2006, Hon'ble Supreme Court held that since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force. (d) These writ petitioners cannot be relegated to learned Juvenile Court-cum-Additional Chief Judicial Magistrate, Latehar for quantification of the punishment because joint sessions trial cannot be conducted by the Additional Sessions Judge, Fast Track Court, Latehar because it is beyond his power, jurisdiction and authority. (e) Moreover, major persons, who were convicted jointly have preferred criminal appeal, being Criminal Appeal (D.B.) No. 718 of 2005 against the judgment and order of conviction and sentence passed by Additional Sessions Judge, Fast Track Court, Latehar has been quashed and set aside by the judgment and order dated 13th May, 2009 by a Division Bench of this court (Annexure 4 to the supplementary affidavit dated 12th July, 2013 filed by the petitioners). (f) Counsel for the petitioner has also relied upon a decision rendered by the Hon'ble Supreme Court in the case of Babban Rai & Anr. vs. State of Bihar, 2008 CrLJ 1038 and this judgment was also of a joint trial. Though conducted with non-juvenile persons, juvenile accused were convicted and their conviction in this case was upheld but sentence was set aside because the juvenile accused at the time judgment was delivered was major, i.e. approximately 35 years of age. On the aforesaid ground the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Fast Track Court, Latehar is being challenged and it is also submitted by counsel for the petitioners that by now these petitioners have attained the age of more than 35 years.
(2.) We have heard counsel for the respondent State who submitted that there is no illegality committed by the Additional Sessions Judge, Fast Track Court, Latehar in convicting these appellants especially in view of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and for quantum of punishment they have been rightly referred to the Juvenile Justice Board, Latehar. It is further submitted by the State that as per Section 20 of the Act of 2000, even after the juveniles and persons who are other than juvenile are tried together, for quantum of punishment matter can be referred to the Juvenile Justice Board. It is further submitted by the counsel for the State that the allegation levelled against these writ petitioners are of murder as well as for injuring the life of a person and therefore, these petitioners have been convicted for the offences punishable under Sections 302/34, 148, 307/34 I.P.C. and therefore, this court may not entertain this writ petition.
(3.) Having heard counsel for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the judgment dated 17/22nd June, 2005 (Annexure-1 to the memo of the writ petition) delivered by Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case Nos. 172 of 1989 and 172-A of 1989 so far as these petitioners are concerned and consequently judgment dated 12th July, 2005, passed by the Additional Chief Judicial Magistrate, Latehar in S.T. Case No. 172 of 1989/Juveniie Tr. No. 97 of 2005 (Annexure-2 to the memo of the writ petition) and Memo No. 264 dated 7th February, 2006 issued under the seal and signature of the Under Secretary to the Govt. of Jharkhand, Department of Home (Annexure-3 to the supplementary affidavit filed by the petitioners) mainly for the following facts and reasons:-- (I) It appears that the allegations against these petitioners are regarding offence of murder and for injuring the life of another person in furtherance of the common intension with the persons other than juvenile and also allegation of rioting, armed with deadly weapons. Date of occurrence as per prosecution is 23rd May, 1988. Admittedly, all the petitioners were below the age of 16 years on the date of offence, i.e. on 23rd May, 1988, as per enquiry report dated 31st January, 2005 submitted by the Juvenile Court-cum - A.C.J.M., Latehar. The aforesaid report given by the Juvenile Court-cum-Additional Chief Judicial Magistrate, Latehar has been accepted by the Additional Sessions Judge, Fast Track Court, Latehar in the judgment itself. Thus, it is undisputed that all the three petitioners were below the age of 16 years and this fact was established before the Additional Sessions Judge, Fast Track Court, Latehar. (II) Thus, the question that arises in this writ petition is that whether trial of juvenile in conflict with law can be conducted together with those who are Other than juvenile. To decide this issue, there is a need to refer to Section 24 of the Juvenile Justice Act, 1986 because as on date of offence this Act was in force. Section 24 of the Act of 1986 reads as under:-- 24. No joint trial of juvenile and person not a juvenile:--(1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973, or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973, or any other law for the time being in force, such juvenile and any person who is not a juvenile would but for the prohibition contained in sub-section (1), have been charged and tried together, the court taking cognizance of that offence shall direct separate trials of the juvenile and the other person.;