A. Rajapandiyan vs The State of Tamil Nadu

S. Nagamuthu, J.—The detenu-Vinoth @ Vinothkumar is the first accused in S.C. No. 93 of 2006 on the file of the learned District and Sessions Judge-cum-Fast Track Court No. 2, Thoothukudi. By judgment dated 04.10.2010 the learned Trial Judge convicted him under various penal provisions including the offence u/s 302 IPC and sentenced to undergo imprisonment for life. Challenging the said conviction and sentence, an appeal in Crl.A. (MD) No. 497 of 2010 has been preferred on the file of this Court and the same is pending. During the pendency of the appeal, the petitioner, who is the father of the first accused-Vinoth @ Vinothkumar, has come up with the present Habeas Corpus Petition seeking a direction to set the first accused-Vinoth @ Vinothkumar at liberty on the ground that the entire trial is vitiated, since as on the date of the alleged crime, the detenu was a juvenile in conflict with law, in terms of the Juvenile Justice (Care and Protection of Children) Act.

This Court, in this Habeas Corpus Petition, issued a direction to the learned Additional District Judge, Fast Track Court No. II, Tuticorin, to hold enquiry into the age of the detenu/the first accused. After holding such enquiry, the learned Trial Judge, has submitted a report dated 02.08.2011.

In our considered opinion, the Habeas Corpus Petition of this nature cannot be entertained. In view of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, in such of those cases where all the remedies available for the accused under the procedure have been exhausted and finality has been reached, a Habeas Corpus Petition of this nature cannot be entertained. Here, in the present case, the appeal remedy is available. Therefore, it is for the appellate Court to decide about the correctness of the conviction in the light of the Juvenile Justice (Care and Protection of Children) Act. When the appeal is pending, if any order is passed in this Habeas Corpus Petition, this will tantamount to usurping the powers of the appellate Court. Therefore, we are of the view that in this Habeas Corpus Petition, no finding could be recorded by the Court in respect of the age of the detenu as well as the relief to be granted to him. It is for the appellate Court in the Criminal Appeal to decide about the same. However, in order to avoid yet another enquiry in respect of the age of the detenu, we direct the Registry to place the Report submitted by the learned Additional District Judge, Fast Track Court No. II, Thoothukudi dated 02.08.2011 in respect of the age of the detenu, before the Division Bench, before which the Crl. A. (MD) No. 497 of 2010 will be listed for hearing. The detenu will be at liberty to make use of the said report.

In such view of the matter, the Habeas Corpus Petition is closed.