Kerala HC Issues Directions To Investigating Agencies & District Judiciary To Avoid That Minors Are Not Tried As Adults
The Kerala High Court has issued directions to the Investigating Agencies and District Judiciary to avoid that the minors are not tried as adults.
The Court was deciding a Criminal Application preferred to recall the Judgment of the High Court passed in 2016.
A Division Bench of Justice Raja Vijayaraghavan V. and Justice G. Girish issued the following directions –
(i) The officer arresting an accused shall ensure the age of the arrestee by verifying any of the authentic documents like Matriculation or Equivalent Certificate, Date of Birth Certificate from the School, Aadhaar Card, Electoral Identity Card, Driving Licence, Ration Card etc. and indicate in the remand report about the course so adopted, before production of such accused before the Magistrate or Judge empowered to order the appropriate custody of such arrestee. The photocopy of such record relied on by the Arresting Officer shall be appended to the Remand Report.
(ii) In any case, if the Arresting Officer is not able to procure any such authentic document before the production of the arrestee before the competent judicial officer for remand, the said aspect shall be stated in the remand report together with the reasons which prompted the officer to conclude that the arrestee is not a juvenile. In such cases, it shall be the responsibility of the Arresting Officer to embark on an immediate enquiry and produce before the Magistrate or Judge, a report along with authentic records showing the age of the arrestee.
(iii) The Magistrate or Judge before whom the arrestee is produced shall verify the document produced by the Investigating Agency showing the age of arrestee, and record in the remand order about his subjective satisfaction regarding the age, at the time of commission of the crime, of the person being remanded to appropriate custody. Except in cases where the arrestee is apparently age-old, the Magistrate or Judge before whom he is produced shall ascertain his age from him and record that aspect in the order of custody being passed. If the age so stated by the arrestee, and his physical appearance give the indication that he is liable to be treated as a juvenile, the Magistrate/Judge shall conduct an enquiry on that aspect following the procedure envisaged under Section 94(2) of Juvenile Justice (Care and Protection of Children) Act 2015, and pass appropriate orders in the matter of his custody.
(iv) In cases where the Investigating Agency was not in a position to procure authentic document showing the age of the arrestee, the Magistrate or Judge before whom the arrestee is produced shall scrutinize the reasons stated by the Investigating Agency to conclude that the arrestee is not a juvenile, and record in the order of custody whether he concurs with the conclusion of the Investigating Agency in that regard.
Advocates Jijo Joseph and Ramesh P. appeared for the Appellants while Public Prosecutor P. Narayanan and Additional P.P. Sajju S. appeared for the Respondent.
Facts of the Case -
The accused persons (Appellants) were arrested in connection with the commission of murder in 2004 and the other two accused in the said case were their parents. The age of the Appellants was shown in the FIR as well as the other relevant records prepared by the Investigating Agency as 20 years and 19 years respectively when they were produced for remand before the Magistrate concerned. They were released on bail in the said crime and after the commitment of the case to the Sessions Court, the trial commenced before the Additional Sessions Court.
Neither the Appellants nor their parents raised any contention before the Investigating Agency, Magistrate or the Sessions Court that the accused were minors at the time of commission of the crime. Accordingly, the Sessions Court convicted them and sentenced them to life imprisonment along with a fine of Rs. 10,000/- each. Though the Appellants and the other convicts challenged the Judgments before the High Court, their Appeal was dismissed. Hence, they were before the High Court seeking to recall the said Judgment.
The High Court in view of the above facts, noted, “It could be seen from the observations of the Apex Court in the above decision 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.”
The Court further emphasised that, in a case where the Magistracy did not find it necessary to look in to the question whether the accused produced before it were entitled to be treated as juveniles, it would be superfluous if not beyond the limits, to fasten the Investigating Officers with the liability to pay compensation to the petitioners for their predicament to undergo trial and detention as adult persons.
“This is especially so in view of the fact that the petitioners and their lawyers did not find it necessary to raise such a contention at any of the stages of the proceedings against them. The absence of any law for the time being in force fixing responsibility on any officers to cross-check the age of the arrestees with reference to the authentic records, and to indicate in the remand report about such verification and findings arrived thereunder, also forecloses the scope of fixing liability on the officers to pay compensation for the detention undergone by the petitioners. In that view of the matter, we are not inclined to direct payment of any compensation to the petitioners by the Investigating Officers or State”, it added.
The Court, therefore, ordered that the Registry shall communicate the Order to the Heads of all Investigating Agencies of the State and Centre and also to all Officers of the District Judiciary of Kerala for strict compliance.
“We also expect the Legislature to consider the inadequacy in the relevant laws on the issue highlighted in this Order, and take appropriate remedial measures”, it concluded.
Accordingly, the High Court issued the necessary directions.
Cause Title- Mahesh & Anr. v. State of Kerala
