AI Structured Summary
Not yet generated for this judgment
Judgment
M. Chockalingam, J.—Invoking the writ jurisdiction of the Court, this petition is brought forth by the father of Elian @ Elilan, who is the 3rd
accused in S.C. No. 237 of 2004, whereby he was sentenced to life imprisonment along with a fine of Rs. 3,000/- and default sentence for each
count for the offence u/s 302 (3 counts) I.P.C., one year Rigorous Imprisonment for each count for the offence u/s 148 (2 counts) I.P.C. and one
month Rigorous Imprisonment for each count for the offence u/s 341 of I.P.C. and all the sentences are to run concurrently, and the same was
confirmed by this Court in Crl. A. No. 156 of 2007.
Affidavit filed in support of the petition is perused. The Court heard the learned Counsel on either side.
The learned Counsel for the Petitioner would submit that the son of the petitioner was found guilty in S.C. No. 237 of 2004, referred to above,
by the Court of Sessions, and subsequently, an appeal was made therefrom in C.A. No. 156 of 2007, and the sentences were affirmed by this
Court on 08.04.2008.
It is further added by the counsel that the son of the petitioner was born on 25.07.1983, and he was also put in Secondary School, and the
transfer certificate and birth certificate were issued to his son. The occurrence has taken place on 03.03.2001. Thus, on the date, when the offence
has taken place, he was 17 years 7 months and 8 days and thus, he was a juvenile and he is entitled for the protection under Sections 7A and 20
of Juvenile Justice Care and Protection of Children Act, 2001 and therefore, necessary orders have got to be passed in his favour. Learned
Counsel for the petitioner also placed reliance on a decision of the Division Bench of this Court rendered in E. Selvam v. State reported in (2009)
3 MLJ 763.
The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions.
After the habeas corpus petition was taken on file, the matter was referred to the Additional Session Division, Fast Track Court No. 2,
Tirunelveli to make an enquiry on the age of the convict in S.C. No. 237 of 2004, who was appellant in C.A. No. 156 of 2007 and who is the son
of the petitioner herein. On enquiry, a report has been received stating that the age of the 3rd accused Elian @ Elilan was 17 years 7 months 8
days on the date of occurrence.
Apart from the submission made on the side of the petitioner, the transfer certificate and birth certificate were also placed before the Court.
Under such circumstance, the report was called for. Even on enquiry, the learned Sessions Judge has given a report stating that the age of the
convict was 17 years 7 months and 8 days on the date of occurrence and thus it would be quite clear that he was a juvenile on the date of
occurrence.
Now, at this juncture, it is pertinent to point out that the convict is entitled to the benefit of the beneficial legislation under Sections 7A and 20 of
Juvenile Justice Care and Protection of Children Act, 2001. It would be relevant to reproduce paragraph 18 of the decision of this Court in E.
Selvam v. State reported in (2009) 3 MLJ 763 relied on by the petitioner, which is as follows:
When A-1 was a juvenile, the question would naturally arise whether the judgment of the trial Court in respect of A-1 could be set aside and
the matter could be remitted for fresh consideration before the Court of Juvenile Justice. But, in the instant case, no purpose will be served for the
simple reason that he crossed 16 years now. Even if the Juvenile Justice Court is directed to conduct an enquiry against A1, no useful purpose
would be served. Under these circumstances, he has to be set at liberty, giving the benefit under Juvenile Justice Act.
Now, it is brought to the notice of the Court that though the petitioner''s son was a juvenile at the time of occurrence, he is now aged 26, and he
got the benefit of the said Act. At this juncture, even if the sentence of imprisonment awarded has got to be set aside, in a fit case, it could be sent
to the Juvenile Justice Board for conducting enquiry, but in the instant case, the convict is aged 26. Under such circumstances, no useful purpose
would be served in sending the convict to Juvenile Justice Board for conducting enquiry, since he is 26 years old.
Under such circumstances, the Habeas Corpus Petition is allowed and the petitioner''s son Elian @ Elilan, 3rd accused in S.C. No. 237 of
2004, on the file of the Additional Sessions Judge, Fast Track Court No. II, Tirunelveli is set at liberty by giving the benefit under Juvenile Justice
Act and he is directed to be released forthwith, in accordance with law, unless his presence is required for any other case. The fine amounts, if any,
paid by him will be refunded to him.