Kerala High Court: In an application filed under Section of the (‘CrPC’) by the convicts to recall the impugned judgment wherein the appeal against conviction filed by the convicts was dismissed, the Division Bench of Raja Vijayaraghavan V. and G. Girish*, JJ., rebuked the authorities and judiciary for not ensuring that the convicts were majors during their trial and directed their immediate release. However, noting that there is no law which makes investigating agencies liable for verifying age of the arrestees, the Court issued detailed directions for the same.
Background
Convicts 1 and 2 are two siblings who, along with their parents, were convicted and sentenced to life imprisonment under Section of the . The ages of convicts 1 and 2 were shown as 20 and 19 years respectively in the FIR and other records when they were produced for remand before the Magistrate. Subsequently, an appeal was filed against the judgment of conviction, but a coordinate bench of this Court dismissed it.
On 11-01-2024, NALSA issued communications to the Member Secretaries of all State Legal Services Authorities to identify those imprisoned persons who were potentially minors at the time of the commission of the offence and to assist them in filing necessary applications for raising the claim of juvenility. Per this direction, convicts 1 and 2 handed over extracts of their school admission registers wherein the date of birth of convict 1 was shown as 10-06-1986, and that of convict 2 as 10-05-1987, indicating that they were minors at the time of the commission of the offence on 21-05-2004.
Thus, convicts 1 and 2 filed the present application to recall the impugned judgment claiming that there was an arithmetical error in calculating their age, and the counsel, who represented them in the trial, omitted to bring this aspect to the notice of this Court.
For the ascertainment of the juvenility of convicts 1 and 2, this Court had directed the Sessions Judge concerned to conduct an inquiry. According to the report of the Sessions Judge, the convicts were juveniles at the time of the commission of offence based on the school admission produced by the head of the school. After consideration of this report and arguments, this Court took serious note of the lapses on the part of the Circle Inspectors concerned and directed the immediate release of convicts 1 and 2.
Accordingly, the officers concerned and the State were called upon by this Court to explain why they should not be made liable to pay compensation to the convicts 1 and 2.
Analysis
The Court stated that it is unfortunate that the convicts had to undergo incarceration for about 14 years due to the failure of the authorities to note that they were juveniles at the time of the commission of the crime. If their juvenility was disclosed to the Magistrate or the Additional Sessions Judge, the maximum detention period they would have to undergo in some observation homes would have been 3 years. Thus, they had to suffer detention in prison for 11 years more than the period that they were supposed to serve.
The Court noted that the convicts did fail to disclose their juvenility, but two separate counsels engaged to defend them before the Trial Court, also failed to bring it to the notice of the Court. The Court further noted that the Magistrate before whom the convicts were produced for remand did not inquire whether they were liable to be proceeded against according to regular criminal law applicable to those who are major.
The Court clarified that the failure of the authorities concerned to take note of the minority of the offenders produced before them cannot be attributed to their dereliction of duty since there are no express provisions regarding it in the , Criminal Rules of Practice, 1990, , , and the 2016 Rules framed thereunder.
Regarding the responsibility of the Magistracy, the Court stated that minority of the offender would be looked into only in cases where the appearance of the offender raises suspicion regarding their age. Otherwise, the Magistracy would consider the age of the offender noted by the Investigating Agency as the correct age and proceed with the matter. The Court further stated that this practice often gives rise to such issues where the physical appearance of the offenders betrays their actual age. This could be prevented only if the Magistrates, before whom the offenders are produced, show diligence to ensure that such offenders are not juveniles.
The Court placed reliance on the case of Jitendra Singh v. State of U.P., , wherein the Supreme Court had observed that the responsibility to protect the rights and interests of juveniles, and to ensure that they are not left out to mingle and mix up with other prisoners, is more up on the judiciary, rather than the Investigating Agencies (‘IAs’).
The Court stated that when the Magistracy did not find it necessary to look into the question of whether the accused produced before it was entitled to be treated as juveniles, it would be superfluous to make the Investigating Officers liable to pay compensation to the convicts for their predicament of undergoing trial and detention as adult persons. Especially because the convicts and their lawyers did not raise such contention at any stage of the proceedings. The Court further stated that no law fixes responsibility on any officers to cross-check the age of the arrestees and to indicate in the remand report about such verification and findings arrived thereunder. Thus, the Court declined to direct payment of any compensation by the Investigating Officers or State to the convicts.
In light of the above, the Court issued the following directions to the IAs and District Judiciary for strict compliance:
Verification of Age by the Arresting Officer (AO):
The Arresting Officer (AO) was directed to verify the age of the arrestee using authentic documents such as a Matriculation or Equivalent Certificate, Date of Birth Certificate from the School, Aadhaar Card, Electoral Identity Card, Driving Licence, Ration Card, or any other valid document. The AO was required to indicate the verified age in the remand report before presenting the accused before the Judicial Officer empowered to order the appropriate custody. A photocopy of the document relied upon by the AO for age verification was to be appended to the Remand Report.
Inability to Procure Documents:
In any case where the AO was unable to procure any such authentic document before the production of the arrestee for remand, this fact was to be stated in the remand report, along with the reasons for concluding that the arrestee was a major. In such cases, the AO was made responsible for immediately inquiring and producing a report along with authentic records stating the age of the arrestee before the Judicial Officer.
Verification by the Judicial Officer:
The Judicial Officer concerned was directed to verify the document(s) produced by the IA and record his subjective satisfaction regarding the age of the arrestee at the time of the commission of the crime in the remand order. Except in cases where the arrestee was clearly elderly, the Judicial Officer was required to ascertain the age from the arrestee and record that in the custody order. If the age stated by the arrestee and his physical appearance suggested that he might be a juvenile, the Judicial Officer was to conduct an inquiry under Section of the and pass appropriate orders regarding his custody.
Scrutiny of Reasons by the Judicial Officer:
In cases where the IA was unable to procure authentic documents showing the age of the arrestee, the Judicial Officer was to scrutinize the reasons stated by the IA for concluding that the arrestee was a major and record in the custody order whether he concurred with such a conclusion. If the Judicial Officer found the IA’s conclusion unacceptable, or if the report and records produced after the inquiry by the AO were deemed unsatisfactory, the arrestee was not to be remanded to prison or the custody of the IA. In such cases, the Judicial Officer was to pass appropriate orders regarding the custody of the arrestee pending the inquiry to ascertain his age.
Thus, the Court directed the Registry to communicate this Order to the Heads of all Investigating Agencies of the State and Centre, and to all Officers of the District Judiciary of Kerala for strict compliance. Lastly, the Court stated that the Legislature is expected to consider the inadequacy of the relevant laws on the issue highlighted herein and take appropriate remedial measures.
[Mahesh v. State of Kerala, Criminal Misc. Application No. 1 of 2024, decided on 09-12-2024]
*Order authored by Justice G. Girish
Advocates who appeared in this case:
For the petitioner: Advocates Jijo Joseph and Ramesh. P
For the respondent: Public Prosecutor, Director General of Prosecution, Special Government Pleader and Additional Public Prosecutor, P. Narayanan, Senior Government Pleader Sajju S.
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