Aqib Ali

Srinagar, Oct 16: Raising of age of the juvenile from 16-18 years has a retrospective effect and the plea of juvenility can be raised at any time, even after the pronouncement of the judgment, the J&K High Court has held.

Hearing a petition filed by a convicted person, a bench of Justice M K Hanjura as ordered enquiry by its registrar judicial to determine the juvenility status of a youth convicted and sentenced in connection with offence for unnatural act.

“The Registrar (Judicial) shall record the finding, in this regard, on the basis of the material that has been and may be produced by the petitioner in support of his claim that he had not completed 18 years of age on 10th June, 2009, i.e. the date of the alleged occurrence. Registrar (Judicial) shall afford a reasonable opportunity of being heard to the (State) to rebut the contentions of the petitioner,” the court according to Kashmir Glory said and asked the Registrar Judicial to make all endeavor to see that the enquiry is brought to its logical conclusion within a fortnight.

The petitioner— Ishfaq Ashraf Najar—has been convicted and sentenced to undergo five years rigorous imprisonment and a fined Rs 30,000 in case FIR (No. 105/2009) of Police Station, Chadoora for an offence under Section 377 RPC (unnatural act) by Chief Judicial Magistrate Budgam on 28 April last year.

Najar had filed an application before the Chief Judicial Magistrate, Budgam, seeking protection under the Juvenile Justice (Care and Protection of Children) Act, 2013, by producing birth certificate issued in his favour by the Jammu and Kashmir State Board of School Education, which depicted that he was born on the 5th day of November, 1991.

The petitioner claimed that on 10th of June, 2009, i.e., the date the occurrence as alleged in the report laid by the police authorities before the Court of Chief Judicial Magistrate, Budgam, he was 17 years, 7 months and 5 days old and, as such, he was a juvenile and is, therefore, entitled to take umbrage under the provisions of the Act.

“The trial court has got swayed by the argument that the Act is prospective and not retrospective in application, which is bad in law and has resulted in the miscarriage of justice,” the court said, underlining that raising of the age of the juvenile from 16 to 18 years has a retrospective effect and the plea of juvenility can be raised at any time, even after the pronouncement of the judgment irrespective of the fact, whether any such plea has, or has not, been raised earlier.

“It is only the date of the commission of offence which is material and not the date on which cognizance has been taken or the charge has been framed or the conviction has been recorded. It was, therefore, incumbent on the part of the Trial court to look into the issue of the juvenility of the petitioner raised before him by the petitioner. The Trial Court has got swayed by the argument that the Act is prospective and not retrospective in application, which is bad in law and has resulted in the miscarriage of justice,” the court said.