Kathua Rape Case: Accused Not a Juvenile at the Time of Commission of Rape: Supreme Court

kathua rape case

The Supreme Court held that in Kathua Rape case the accused was not a Juvenile at the time of commission of offence of rape. 

Background 

The litigation originates from the most unfortunate Kathua rape case.

The Kathua rape case involved the abduction, gang rape and murder of an eight year-old Muslim girl by name ‘X’ by six Hindu men and the respondent (claiming to be a juvenile) in January, 2018 in the Rasana village near Kathua in Jammu & Kashmir.

The appeal is at the instance of the State of Jammu & Kashmir (now U.T. of Jammu & Kashmir) and is directed against the order passed by the High Court of Jammu & Kashmir by which the High Court rejected the Criminal Revision Application filed by the appellant State, thereby affirming the order passed by the Chief Judicial Magistrate, Kathua holding the respondent accused to be a juvenile on the date of the commission of the alleged offence.

Arguments 

Senior Advocate P.S. Patwalia, appearing for the appellant State, vehemently submitted that the orders passed by the CJM, Kathua and the High Court could be termed as palpably erroneous and thereby rendering the dispensation of justice to a mockery.

He submitted that the two courts have conveniently ignored the statutory rules governing the determination of age of a juvenile. 

He contended that there is no cogent, clear and convincing documentary evidence on record to suggest or indicate that the respondent was born on 23.10.2002.

The senior counsel submitted that sub-rule (3) of the Rule 74 framed under the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 makes it abundantly clear that in case of any contradiction between the certificates mentioned in sub clause (i) and (ii) of the sub-rule (3), the authority deciding age may refer the matter to a duly constituted medical board which, in turn, shall record its findings and submit it to the Juvenile Justice Board.

Counsel appearing for the respondent, submitted that sub-rule (3) of Rule 74 has no application in the case as there is no contradiction in the certificates evidencing the age of the respondent accused.

Decision 

The division bench of Justice Ajay Rastogi and Justice J.B. Pardiwala observed that Sub-rule (3) of Rule 74 framed under the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 makes it abundantly clear that in the absence of the certificates mentioned in subclause (i) to (iii) or in the event of any contradiction arising therefrom, the authority deciding the issue of age may refer the matter to a duly constituted medical board which, in turn, would record its findings and submit to the Juvenile Justice Board.

The court noted that the materials on record reveal no manner of doubt that there are discrepancies in the certificates on record disclosing the date of birth of the respondent.

The bench said that it failed to understand as to why the Courts below were not able to take cognizance of such discrepancies or contradictions.  

“If, there is any doubt in this regard, there is no good reason why the matter should not be referred to a duly constituted medical board which shall, in turn, record its findings and submit to the Juvenile Justice Board” the court added.

The court stated that the word “may” should be read as “shall” having regard to the very object of sub-rule (3) of Rule 74.

It was observed by the court that it is a well settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning.

It was further added that if in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word ‘may’ will not prevent the court from giving it a mandatory colour.

“We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the Government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day” the court said  

The court set aside the order passed by the CJM, Kathua and the High Court and held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co-accused were tried in accordance with the law. Law to take its own course.

Case title: The State of Jammu & Kashmir (now U.T. of Jammu & Kashmir) & Ors. v/s Shubam Sangra

Citation: Criminal appeal no. 1928 of 2022

Click here to read the Order/Judgment

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