Telangana High Court Directs Trial Court To Pass Fresh Order On Convict's Claim Of Juvenility In 2004 Rape Case, Over 13 Years After Dismissal Of SLP

More than 13 years after the Supreme Court dismissed the SLP against his conviction in a rape case dating back to 2004, the Telangana High Court has directed the trial court to pass fresh order on the convict's claim of juvenility.

The division bench of Justice K Lakshman and Justice Sree Sudha said the trial court shall conduct enquiry in the convict's application, which was filed in 2018, afresh and also consider the delay of more than seven years in its filing after dismissal of SLP by the apex court.

"Learned Judge shall also consider the contention of the learned Addl. Public Prosecutor that the petitioner herein has filed the present application with a delay of 71⁄2 years without explaining the said delay properly and that he has filed the said application by creating the aforesaid documents. Thus, learned Judge shall consider the aforesaid aspects and pass order afresh strictly in accordance with law as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order," it added.

The trial court in November 2018 had dismissed the convict's application while ruling that Section 7-A of the Juvenile Justice (care and protection of children) Act, 2000 was introduced with effect from 22.08.2006 and since it has only prospective application, the accused cannot claim benefit of the amendment made subsequent to the offence committed by him. However, the counsel representing the petitioner argued that the benefit of juvenility can be claimed at any stage before any court even after passing of judgment by the trial court or dismissal by the appellate court and the Apex Court.

Observing that the issue of raising of juvenility at any stage before any court even after disposal of the case is no longer res integra, the bench relied on decisions in Hariram Vs. State of Rajasthan [Supreme Court], Jayavel Vs. State [Madras High Court], Anil Agarwal Vs. State of West Bengal [Calcutta High Court], Amit Singh Vs. State of Maharashtra [Bombay High Court] and various other similar decisions.

"The sum and substance of the aforesaid judgments is that the juvenility can be raised at any point of time at any stage even after final disposal of the case including SLP by the Apex Court. In the present case also, the Apex Court dismissed the SLP filed by the petitioner on 22.02.2010 itself. There is no dispute that the petitioner herein did not claim juvenility either before the trial Court or before the High Court or Apex Court," said the court.

It added: "He has filed the present application vide Crl.M.P.No.38 of 2018 only on 18.11.2017 i.e. after 7 1/2 years of dismissal of SLP. Thus, there is a delay on the part of the petitioner. However, in the light of the aforesaid principle laid down by the Apex Court and other Courts, juvenility can be raised at any stage."

On the provisions of the Act, the court said the enactment consolidated and amended the law relating to juveniles in conflict with the law and children in need of care and protection, by providing them with proper care, protection and treatment.

"The said Act was brought in by Government of India owing to the agreement in the international convention. Thereafter, Parliament on reviewing the working of the existing Juvenile Act, 1986 found that much greater attention is required to be given to children in conflict with law and for those who are in need of care and protection. The judicial system should be more child-friendly and accessible to a juvenile or child or anyone on their behalf including the Police, voluntary organisations, social workers, parents and guardians throughout the country. With the said object, the said Act was brought in. It includes recognition of rights of juvenile under international convention."

It added that "the said aspects were not considered by the Court below in the impugned judgment and therefore, the same is liable to be set aside.

The bench was hearing a revision against the dismissal of application, filed under section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, by Sessions Court. The petitioner raped and killed a minor girl in 2004 and was prosecuted under sections 376 and 304 of the IPC. He was sentenced to life imprisonment in 2006. An appeal was preferred, which was dismissed by a division bench of the High Court in 2009. Subsequently a SLP was preferred before the Supreme Court in 2010, which was also dismissed.

Advocate M.A. Shakeel represented the petitioner 

Addl. Public Prosecutor T. V. Ramana Rao represented the State

Title: Adul Arif v. State of Telangana

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