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CRIMINAL APPEAL NO. 860 OF 2019
SATYA DEO @ BHOOREY ..... APPELLANT(S)
JUDGMENT
Bhoorey notice was issued on the plea of juvenility. The impugned judgment had confirmed the conviction of Keshav Ram, Ram
Kuber and Satya Deo by the trial court in FIR No. 156/1981 dated
11.12.1981 Police Station Gilaula, Distt. Bahraich, Uttar Pradesh for the offence under Section 302 read with section 34 of the
Indian Penal Code, 1860 (‘IPC’ for short) and the order of sentence directing them to undergo imprisonment for life.
Criminal Appeal No. 860 of 2019
2. By order dated 02.05.2019 leave was granted in the case of Satya Deo.
3. By order dated 22.11.2019 the trial court was directed to conduct an inquiry to ascertain if Satya Deo was a juvenile on the date of occurrence i.e. 11.12.1981, on the basis of material which would be placed on record.
4. Pursuant to the directions, the First Additional District and Sessions Judge, Bahraich, Uttar Pradesh has conducted an inquiry and submitted the report dated 06.03.2020. As per the report, the date of birth of Satya Deo is 15.4.1965. Accordingly, he was 16 years 7 months and 26 days of age on the date of commission of the offence i.e. 11.12.1981. The report relies on the Transfer Certificate (in original) issued by Ram Narayan Singh Inter College, Ramnagar Khajuri, Bahraich, and the Admission Register of Primary School, Pairi, which documents were proved by Sh. Krishn Deo, Clerk at Ram Narayan Singh Inter College, Ramnagar Khajuri, Bahraich, and Smt. Anupam Singh, in-charge head-mistress of Primary School, Pairi, respectively. Further, Satya Deo had appeared in class-10 examination vide Roll. NO. 902077[7], and his date of birth as recorded in the gazette relating to this examination is 15.04.1965.
5. The report states that the complainant had died and consequently notice was served on the heirs of the complainant, who did not appear before the First Additional District and Sessions Judge, Bahraich. The prosecution had not led any evidence.
6. The date of birth of Satya Deo is undisputed and not challenged before us.
7. Notwithstanding this finding, the First Additional District and Sessions Judge, Bahraich has observed that Satya Deo was not a juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16 year of age on the date of commission of the offence i.e. 11.12.1981.
8. The conundrum is in light of the definition of ‘juvenile’ under the 1986 Act, which was below sixteen years in case of a boy and below eighteen years in case of a girl on the date the boy or girl is brought for first appearance before the court or the competent authority, whereas the 2000 Act, as noticed below, does not distinguish between a boy or girl and a person under the age of eighteen years is a juvenile. Further, under the 2000 Act, the age on the date of commission of the offence is the determining factor.
9. In light of the conflicting views expressed by this Court on application of the 2000 Act to the pending proceedings, vide decisions in Arnit Das v. State of Bihar[1] and Umesh Chandra v. State of Rajasthan[2], the matter was referred to a Constitution Bench and decided in the case reported as Pratap Singh v. State of Jharkhand and Another[3]. The Constitution Bench formulated two points for decision, namely: “(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the court/competent authority. (b) Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act and pending when the Act of 2000 was enforced with effect from 1-4-2001.” On the second question, the Constitution Bench held that the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force. On the first question, it was held that the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in a court. Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.
10. Subsequent to the decision of the Constitution Bench in Pratap Singh (supra), several amendments were made to the 2000 Act by the Amendment Act No. 33 of 2006. These amendments are significant, but first we will begin by referring to Section 2(l) of the 2000 Act which defines “juvenile in conflict with law” as: “(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence” In terms of clause (l) to section 2 of the 2000 Act, Satya Deo, being less than 18 years of age, was juvenile on the date of commission of offence.
11. Section 20 of the 2000 Act, which provides a special provision in respect of pending cases, post the amendment vide Act 33 of 2006, reads:
12. By the amendment Act No. 33 of 2006, Section 7-A was inserted in the 2000 Act setting-out the procedure to be followed by the court to determine the claim of juvenility. Section 7A, which came into effect on 22.08.2006, reads: “7-A. Procedure to be followed when claim of juvenility is raised before any court.—(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.” Proviso to Section 7A is important for our purpose as it states that the claim of juvenility may be raised before ‘any court’ ‘at any stage’, even after the final disposal of the case. When such claim is made, it shall be determined in terms of the provisions of the 2000 Act and the rules framed thereunder, even when the accused had ceased to be a juvenile on or before commencement of the 2000 Act. Thus it would not matter if the accused, though a juvenile on the date of commission of the offence, had become an adult before or after the date of commencement of the 2000 Act on 01.04.2001. He would be entitled to benefit of the 2000 Act.
13. Section 64 of the 2000 Act was also amended by Act No. 33 of 2006 by incorporating a proviso and explanation and by replacing the words ‘may direct’ with the words ‘shall direct’ in the main provision. Post the amendment, Section 64 reads as under:
14. This Court in Dharambir v. State (NCT of Delhi) and Another[4] had analysed the scheme and application of the 2000 Act to the accused who were below the age of eighteen years on the date of commission of offence which was committed prior to the enactment of the 2000 Act, to opine and hold: “14. Proviso to sub-section (1) of Section 7-A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines “juvenile” or “child” to mean a person who has not completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act.
15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1-4-2001 would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan [(2009) 13 SCC 211: (2010) 1 SCC (Cri) 987].”
15. In Mumtaz v. State of U.P 5, while referring to several earlier decisions, this court dealt with effect of Section 20 of the 2000 Act and its inter-play with the 1986 Act, to elucidate:
19. In Bijender Singh v. State of Haryana [Bijender Singh v. State of Haryana, (2005) 3 SCC 685: 2005 SCC (Cri) 889], the legal position as regards Section 20 was stated in the following words: (SCC pp. 687- 88, paras 8-10 & 12):
12. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose.”
20. In Dharambir v. State (NCT of Delhi) [Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344: (2010) 2 SCC (Cri) 1274] the determination of juvenility even after conviction was one of the issues and it was stated: (SCC p. 347, paras 11-12)
21. Similarly in Kalu v. State of Haryana [Kalu v. State of Haryana, (2012) 8 SCC 34: (2012) 3 SCC (Cri) 761] this Court summed up as under: (SCC p. 41, para 21)
16. This position of law and principle was affirmed by this court for the first time in Hari Ram v. State of Rajasthan[6] in the following words:
17. In light of the legal position as expounded above and in the aforementioned judgments, this court at this stage can decide and determine the question of juvenility of Satya Deo, notwithstanding the fact that Satya Deo was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced. As Satya Deo was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.
18. This brings us to the question whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act, albeit sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act. Section 69 ‘Repeal and saving clause’ of the 2000 Act is identical as sub-section (1) thereof had repealed the 1986 Act and sub-section (2) provides that notwithstanding such repeal anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act. However, what is important and relevant for us is Section 25 of the 2015 Act which, as per the headnote to that Section, incorporates ‘special provision in respect of pending cases’ and reads: “Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.” Section 25 is a non-obstante clause which applies to all proceedings in respect of a child[7] alleged or found to be in conflict with law pending before any Board or court on the date of commencement of the 2015 Act, that is, 31st December 2015. It states that the pending proceedings shall be continued in that Board or court as if the 2015 Act had not been passed. In Akhtari Bi v. State of M.P.8, it was observed that the right to appeal being a statutory right, the trial court’s verdict does not attain finality during the pendency of the appeal and for that purpose the trial is deemed to be continuing despite conviction. Thus, the use of the word ‘any’ before the board or court in Section 25 of the 2015 Act, would mean and include any court including the appellate court or a court before which the revision petition is pending. This is also apparent from the use of the words ‘a child alleged or found to be in conflict with law’. The word ‘found’ is used in past-tense and would apply in cases where an order/judgment has been passed. The word ‘alleged’ would refer to those proceedings where no final order has been passed and the matter is sub-judice. Further, Section 25 of the 2015 Act applies to proceedings before the board or the court and as noticed above, it would include any court, including the appellate court or the court where the revision
7 The expression ‘child’ as per clause (12) to Section 2 of the 2015 Act reads – ‘a person who has not completed eighteen years of age’.
petition is pending. In the context of Section 25, the expression ‘court’ is not restricted to mean a civil court which has the jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms of clause (23) to Section 2 of the 2015 Act[9]. The definition clause is applicable unless the context otherwise requires. In case of Section 25, the legislature is obviously not referring to a civil court as the section deals with pending proceedings in respect of a child alleged or found to be in conflict with law, which cannot be proceedings pending before a civil court. Since the Act of 2015 protects and affirms the application of the 2000 Act to all pending proceedings, we do not read that the legislative intent of the 2015 Act is to the contrary, that is, to apply the 2015 Act to all pending proceedings. Section 6 of the General Clauses Act,1897 that provides the consequence of “repeal” of an enactment reads:
6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: xxx
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; Consequently, in light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an accused cannot be denied his right to be treated as a juvenile when he was less than 9 “(23) – “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts’;” eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced. (In the present case, we are not required to examine and decide the question whether 2000 Act or the 2015 Act would apply when the offence was committed before the enactment of the 2015 Act but the charge-sheet was filed after enactment of the 2015 Act. The answer would require examination of clause (1) to Article 20 of the Constitution and several other aspects as the 2015 Act provide an entirely different regime in respect of children in conflict with law and the procedure to be followed in such cases. These aspects and issues have not been argued before us.)
19. Decision of this court in Gaurav Kumar @ Monu v. State of Haryana10, which was relied upon by the learned counsel for the state is of no avail as this decision is on interpretation and application of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, for the procedure to be followed in determination of age. The procedure adopted by the learned
District and Sessions Judge is not challenged and questioned before us. We would again record that Satya Deo was less than 18 years of age on the date of commission of offence and this remains undisputed and unchallenged.
20. Satya Deo has undergone incarceration for more than 2 years thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum and nature of punishment which should be given to a person who was a juvenile on the date of commission of offence, this court, while placing reliance upon an earlier decision in Jitendra Singh v. State of Uttar Pradesh11, had held:
22. It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. What kind of order could be passed in a matter where claim of juvenility came to be accepted in a situation similar to the present case, was dealt with by this Court in Jitendra Singh v. State of U.P. [Jitendra Singh v. State of U.P., (2013) 11 SCC 193: (2013) 4 SCC (Cri) 725] in the following terms: (SCC pp. 210-11, para 32)
21. Following the aforesaid ratio and the legal position elucidated above, while we uphold the conviction of Satya Deo, we would set aside the sentence of life imprisonment. We would remit the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased. We make no affirmative or negative comments either way on the order/direction under Section 15 of the 2000 Act.
22. We would, accordingly, direct the jail authorities to produce Satya Deo before the Board within seven days from the date of receipt of a copy of this judgment. The Board shall then pass appropriate order regarding detention and custody and proceed thereafter to pass order/directions under the 2000 Act.
23. The appeal filed by the Satya Deo is partly allowed in the aforesaid terms and all the pending application are disposed of ....................................... J. (S. ABDUL NAZEER) ...................................... J. (SANJIV KHANNA) NEW DELHI; OCTOBER 07, 2020.