Excelsior Correspondent
Srinagar, Apr 16: High Court has held that the order of trial court for convicting and sentencing the accused under the law which is provided for adult accused is without jurisdiction and unsustainable and directed for fresh trial against him in accordance with the provisions of the J&K Juvenile Justice (Care and Protection of Children) Act, 2013.
Justice Sanjay Dhar allowed the appeal of accused-Iashfaq Ahmad Najar who was convicted by the trial court for commission of offence under Section 377 of the Ranbir Penal Code by recording that he was a juvenile at the time of the occurrence.
Court said the proceedings against him for the commission of offence had to be conducted in accordance with the provisions contained in the Act of 2013 but he has been tried under the procedure provided for adult accused.
“The trial of the petitioner-accused before the Chief Judicial Magistrate is, therefore, without jurisdiction and is vitiated. The order of conviction and sentence passed against him by the Magistrate, being without jurisdiction, cannot be sustained in law.”, Justice Dhar recorded.
Court opined that the petitioner was a juvenile on the date of commission of the offence and he has already undergone considerable jail sentence, partly as an under-trial and partly as a convict and, as such, the appeal filed by him deserves to be allowed.
Court, accordingly, allowed his appeal by observing that without going into merits of the case and without passing any consequential order of holding of fresh trial against the petitioner in accordance with the provisions of the J&K Juvenile Justice (Care and Protection of Children) Act, 2013, or subsequent legislation that has come into operation.
“Even otherwise, perusal of the record reveals that the petitioner has been in custody during trial of the case and after his conviction by the trial court for about two years and as per the provisions of the Act of 2013, a juvenile cannot be kept in special home for a period of more than three years”, reads the judgment.
Follow our WhatsApp channel