Indra Pal vs State Of U.P. & Another
2011 Latest Caselaw 78 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Criminal Revision No.69 of 2011
 

 
Indra Pal			              	      ...Applicant/Revisionist
 
Versus 
 

 
State of U.P. And others				...Opp.parties.
 
*** 
 

 
Hon'ble Shri Narayan Shukla,J.

Heard Mr.Shrawan Kumar, learned counsel for the revisionist as well as Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.

The petitioner has challenged the order dated 8th of February, 2011, passed by the Additional District Judge, Raebareli in Sessions Trial No.221 of 1994, whereby the petitioner's application for sending the matter for trial to the Juvenile Justice Board has been rejected.

Briefly, the undisputed facts are that the petitioner's date of birth is 30th of December, 1978. The date of occurrence of offence is 23rd of March, 1991. On the date of occurrence the Juvenile Justice Act, 1986 was in operation and according to the scheduled Act the maximum age for determination of juvenile was 16 years. It is also admitted fact that the petitioner was declared juvenile by means of order dated 19th of June, 2003 by the Additional Sessions Judge, Raebareli, but it appears that any how the matter went to the High Court on the orders passed on the Misc. Application and now it has to be heard again by the Additional Sessions Judge, who fixed the date for arguments.

In the meantime the Juvenile Justice (Care and Protection of Children) Act, 2000 came into effect with effect from 1st of April, 2001, which has also been amended by means of Amendment Act 33 of 2006 with effect from 22nd of August, 2006. In respect of the pending cases the special provisions have been envisaged, which are extracted below:-

"20.Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date of which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]

The learned counsel for the petitioner submitted that since the petitioner has been declared juvenile on 19th of June, 2003, the case has to be tried by the Special Court i.e. the Juvenile Justice Board, not by the regular trial court. It is not in dispute that on the date of enforcement of Act, 2000, there was no such declaration and as per admitted date of birth, the petitioner had already completed 18 years of age. In support of his case, the learned counsel for the petitioner cited a case of Pratap Singh versus State of Jharkhand and another, reported in AIR 2005 SC 2731. Relevant paragraph 31 of the aforesaid judgment is extracted below:-

"31.Section 20 of the Act as quoted above deals with the special provisions in respect of pending cases and begins with non-obstante clause. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The proceedings in respect, of a juvenile pending in any Court referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal Courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal Courts. They would be pending in criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile."

Whereas after going through the aforesaid observations of the Hon'ble Supreme Court, I find that the Hon'ble Supreme Court has held that if a person was a "juvenile" under the 1986 Act, the proceedings would not be pending in criminal Courts, they would be pending in criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, for passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.

Thus the Hon'ble Supreme Court clearly held that although Section 20 of the Act would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile."

The Hon'ble Supreme Court dealing with the same question decided another case i.e. Hari Ram versus State of Rajasthan and another, reported in (2009) 13 SCC 211, in which the Pratap Singh's case (supra) has also been considered.

In this case the Hon'ble Supreme Court deposed two questions for determination. The second one, which is relevant is extracted below:-

"(b) Whether the Act of 2000 will be applicable in a case where a proceeding is initiated under the 1986 Act and was pending when the Act of 2000 was enforced with effect from 1.4.2001?

Section 7-A has been inserted by way of Amendment Act 33 of 2006 with effect from 22nd of August, 2006, which provides a procedure to be followed when claim of juvenility is raised before any court and is extracted below:-

"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 inquiry, 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.]

In the aforesaid case the Hon'ble Supreme Court has permitted to raise the question of juvenility as well as has given the jurisdiction to the court concerned to determine it at any stage of the proceeding even after completion of 18 years of age. The factum of Section 20 envisages the provisions for determination of juvenility as to on the date of commencement of the Act, 2000, which law shall apply; either the proceedings shall govern under the 1986 Act or under the 2000 Act, which has been clarified by the Hon'ble Supreme Court in the case of Hari Ram (supra). According to which it is clear that the determination of a juvenility of a juvenile would be in terms of clause (1) of Section 2, even if the juvenile ceases to be so on or before 1st of April, 2001 when the Juvenile Justice Act, 2000 came into force and the provisions of the Act would apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. The power provided under Section 20 is extensive as it enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.

The point of determination of juvenility has been considered by the Hon'ble Supreme court in the case Dharambir versus State (NCT of Delhi) and another, reported in 2010 (5) SCC 344. The relevant paragraphs 11 and 15 are reproduced hereunder:-

"11.It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of Clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April, 2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed.

15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7A, 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 1st April, 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 and Anr."

Recently in the case of Lakhan Lal versus State of Bihar, reported in 2011 2 SCC 251, the Hon'ble Supreme Court has reiterated its view taken in the judgment of Dharambir's case (Supra).

Section 7-A(2) speaks that 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, meaning thereby in order to commence the proceeding of a juvenile case after declaration of juvenility, it shall be sent to the Board of juvenile Justice for appropriate order. This term does not confine only to pass a final order by the Juvenile Justice Board, it having the extensive scope permits the proceeding of the case also from that very stage to be proceeded by the said special court.

Therefore, the learned Sessions Judge, where the present case is pending is under the statutory duty to send the case for trial of a juvenile to the Special Court i.e. Board of Juvenile Justice.

In the light of the aforesaid observations, I am of the view that the court below has misread the provisions of the Act and passed the order, which is not appreciable and thus is unsustainable. Therefore, the order impugned dated 8th of February, 2011, passed by the Additional Sessions Judge, Court No.1, Raebareli is quashed with the direction to send the matter to the Board of Juvenile Justice to proceed for trial with respect to petitioner.

In the aforesaid terms the revision is allowed.

Order Dated:7th of March, 2011.

Banswar