Brijesh Awasthi vs State Of U.P. & Another
2012 Latest Caselaw 5936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 56
 
Case :- CRIMINAL REVISION No. - 1927 of 2010
 
Petitioner :- Brijesh Awasthi
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Rakesh Dubey,Rajiv Gupta
 
Respondent Counsel :- Govt. Advocate,Pradeep Chandra
 

 
Hon'ble Anil Kumar Agarwal,J.

Heard Mr. Rakesh Dubey & Sri Rajiv Gupta, learned counsel for the revisionist, learned AGA for the State of U.P., Mr. Pradeep Chandra, learned counsel for the respondents and perused the relevant documents on record.

(2) This criminal revision has been filed against the judgment and order dated 15.4.2010, passed by Additional District Judge, Court No. IX, Kanpur Dehat in Criminal Appeal No. 37 of 2004; Sanjay and others Vs. State of U.P., whereby the revisionist's application 64-Kha for declaring him juvenile has been partly rejected.

(3) With the consent of counsel for the parties the present revision is being disposed of at the stage of admission.

(4)The brief relevant facts of this revision are that an incident took place on 16.11.1989 at about 7.00 A.M. within the Circle of Police Station Mangalpur, District Kanpur Dehat, in which police had submitted charge sheet against the revisionist Brijesh Awasthi and Sanjay under sections 323, 324 read with section 34 I.P.C. (Case Crime No. 281 of 1989), Police Station Mangalpur. The court of A.C.J.M. Court No. 1, Kanpur Dehat, who tried this case, on 13.8.2004 convicted the revisionist and Sanjay under sections 323, 324 read with section 34 I.P.C.. Both had preferred Criminal Appeal No. 37 of 2004 before Sessions Judge, Kanpur Dehat, which was transferred to A.D.J.-IX for hearing. During the pendency of said appeal on 10.10.2007, the revisionist and Sanjay both had jointly moved an application 64 Kha with the allegation that they were juvenile on the date of incident, hence be declared juvenile. In support the revisionist had filed photocopy of High School Mark Sheet of U.P. Intermediate Education Board dated 19th June, 1988 (paper no. 65-Kha/3) and certified copy of family register (65-Kha/4). In both documents the date of birth of revisionist was mentioned as 11.1.1972 and in family register the date of birth of Sanjay was mentioned as 3.5.1975. During the enquiry, in appellate court two witnesses, namely, Satendra Singh (PW-1), Assistant Clerk of Babu Dasrath Singh Inter College, Orangabad and Visnu Kumar Gupta (PW-2) Panchayat Adhikari of Village Gram Panchayat Jagdishpur Vikas Khand Jhinzak, Kanpur Dehat were examined from the side of revisionist, who proved the photocopy of High School (paper 101-Kha) and photocopy of Parivar Register (Paper 126-Kha/2) and stated that according to these papers the date of birth of Brijesh was 11.1.11972 and Sanjay was 3.5.1975. Sanjay was also examined by Medical Board and according to the report he was above 30 years on examination date. Learned A.D.J., Court No. IX, Kanpur Dehat on 15.4.2010 decided the application of the revisionist holding that on incident date i.e. 16.11.1989, Juvenile Justice Act, 1986 was in existence and according to Section 2(H) of the 1986 Act a person who had not completed age of 16 years would be deemed to be juvenile. According to the High School Mark Sheet of Brijesh Awasthi his date of birth was 11.1.1972 and on incident day age of Brijesh Awasthi comes 17 years 10 months 5 days, which was above 16 years, hence the revisionist was not juvenile while Sanjay was below 16 years which was juvenile and, therefore, appellate court holding that the revisionist is not juvenile at the time of incident rejected the application (64-Kha) in part and allowed the application in part regarding Sanjay, hence Brijesh Awasthi preferred this revision.

(5) Learned counsel for the revisionist submitted that the learned Additional Session Judge has committed gross illegality in passing the impugned order dated 15.4.2010 and acted in highly technical manner in holding that the revisionist was not a juvenile. As per the observation of court below that the revisionist was aged about 17 years 10 months and 5 days on the date of offence i.e. 16th November, 1989, but holding that the revisionist was not juvenile on the incident date followed the old provisions of Juvenile Justice Act, 1986 instead of following the new provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 is erroneous and liable to be set aside. It is further submitted that the revisionist has not completed 18 years of age on the date of commission of the offence i.e. 16th November, 1989 though had completed 18 years as on 1.4.2001, hence he is entitled to get the benefit of 2000 Act as Amendment Act 33 of 2006 introduced proviso and explanation in section 20 and 7-A of the Act, 2000 which gives retrospective effect of the applicability of Act 2000 in pending cases. This legal position hence settled by the apex court in Hari Ram Vs. State of Rajasthan (2010) 1 SCC (Crl.) 987 introducing Rule 97 also indicate that in conflict with law no child shall be denied the benefit of the Act and Rules made thereunder and all pending cases which have not received a finality shall be dealt with the disposal of its term of the provision of the Act 2000 and rules thereunder. On the above submission, he prays for setting aside the impugned order dated 15.4.2010 and holding him juvenile with entitlement to get the benefit of Act 2000.

(6) Learned counsel for the respondents vehemently opposed the contention of the revisionist and submitted that even on the basis of the age as declared by the revisionist and filed documents, the revisionist was above 16 years of age on the date of commission of the offence. Therefore, he could not be treated to be a juvenile as defined in Act 1986. In determining the age for juvenile is reckoning date would be date of commission of offence and not the date when he was produced before court. The date of occurrence is 16th November, 1989 and on that date Juvenile Justice Act, 1986 was in existence hence the determination of Additional Sessions Judge was perfect, hence no illegality or infirmity was in the order and revision be dismissed.

(7) The question which arises for consideration in this revision is whether or not the revisionist who was not admitted juvenile within the meaning of Juvenile Justice Act, 1986 (for short the 1986 Act) when the offence was committed, but had not completed 18th years of age on that date is entitled to the benefit and protection under the provision of the 2000 Act? Whether the revisionist is entitled to be declared as juvenile in relation to the offence committed by him.

(8) Before deciding the main issue, I may mention here that it is not disputed that the plea of juvenility was raised in appeal. The incident was happened on 16.11.1989 and police had submitted charge sheet against revisionist with one more person in crime no. 281 of 1989 of P.S. Mangalpur, District Kanpur Dehat. On 13.8.2004 trial court convicted the revisionist and other person and criminal appeal no. 37 of 2004 was preferred against the conviction on 10.10.2007. During the pendency of appeal the revisionist had raised the plea of juvenility and he produced copy of mark sheet of High School Board dated 19th June, 1988 (paper No. 65-Kha/3) and copy of family register (paper No. 65-Kha/4) and examined witness Satendra Singh (PW-1) and V.C. Gupta (PW-2) who proved the papers and stated that date of birth of revisionist was mentioned as 11.1.1972 in relevant papers. On that basis learned Additional Sessions Judge observed that the date of birth of revisionist was 11.1.1972 and on incident day (16.11.1989) he was aged about 17 years 10 months 5 days. He was above 16 years hence as per Juvenile Act, 1986 he was not juvenile. The respondent has not disputed about date of birth of revisionist and date of incident.

(9) On occurrence date i.e. 16.11.1989 the Juvenile Justice Act was applicable and in that Act "Juvenile" was defined under Section 2(H) that mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. On that basis the Additional Sessions Judge held that on the date of occurrence the revisionist was over 16 years of age and he did not come within the definition of juvenile under 1986 Act. The Juvenile Justice Act, 1986 was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 and that came into force on 1.4.2001. In Act 2000 defined Juvenile or child in section 2(K) means a person who has not completed eighteen years of age. Section 69 of the 2000 Act repealed the Juvenile Justice Act, 1986. In 2000 Act Section 20 also contain a provision in dealing to cases that were pending on the date of enforcement of the 2000 Act and in which the accused person who at the time of commission of the offence was below 18 years of age, but above sixteen years of age.

Prior to amendment in 2006, Section 20 of 2000 Act provides as under:-

"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 on 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."

The above quoted provision came up for consideration before a Constitution Bench in Pratap Singh Vs. State of Jharkhand; (2005) 3 SCC 551, wherein it formulated two main points for determination. The first point which is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of incident and not from the date on which accused was produced before court or which time cognizance was taken by the Magistrate. On second point Bench held that the benefit of juvenility cannot be extended to the person who has completed 18 years of age as on 1.4.2001 i.e. the date of enforcement of the Act. This part indicate that the view of the Constitution Bench was that the provision of 2000 Act have prospective effect and not retrospective effect except the cover cases where though the male offender was above 16 years of age at the time of commission of the offence and was below 18 years of age as on 1.4.2001. Consequently, the said Act would cover earlier cases only where a person had not completed the age of 18 years on the date of its commencement and not otherwise. In the background of this judgment, the legislature brought Amendment Act 33 of 2006, substituted section 2(l), inserted provision of Section 7-A in the Act, subsequently introduced Rule 12 and 98 in the Juvenile Justice Rule 2007 and inserted proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to the cases pending on 1.4.2001, where a Juvenile, who was below 18 years of age at the time of commission of the offence, was involved.

(10) The Explanation to section 20 which was added in 2006 makes it clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the Juvenile ceased to be a juvenile on or before 1.4.2001, when the Act came into force and the provisions of the Act would apply as if the said provision had been in force for all purposes. Section 20 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 Board concerned for passing sentence in accordance with the provision of the Act.

(11) Provision of section 7-A also makes it clear that the claim of juvenility can be raised before any court at any stage, even after final disposal of the case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised.

(12) The effect of Amendments Act 33 of 2006 in the Act of 2000 was considered by the apex court in the case of Hari Ram v/s State of Rajasthan & Another reported in 2010 (1) SCC(Cr) 987 and held that the Constitution Bench decision in Pratap Singh's case (supra) was no longer relevant since it was rendered under the un-amended Act. In Hari Ram's case the apex court observed as follows:-

"The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 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 was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted."

(13)Dharambir v. State (NCT of Delhi) and Another; (2010) 2 SCC (Cri) 1274, the apex court held in para 11 as follows-

"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."

In para 15 the apex court observed- 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."

(14) In Vikram Singh Vs. State of Haryana (2010) 1 SCC (Cri) 1158, the apex court held in para 5 of the judgment that the Juvenile Justice (Care and Protection of Children) Rule 2007 (hereinafter referred to as 2007 Rules) were brought into force on 26.10.2007. As per Rule 97(2) all the cases pending which have not received a finality will be dealt with and disposed of in terms of the provisions of the 2000 Act as amended on 22.8.2006 and the 2007 Rules.

(15) Later on, the decision in Hari Ram's case was followed by this Court in Mohan Mali Vs. State of M.P. (2010) 6 SCC 669 and Daya Nand Vs. State of Haryana (2011) 1 SCC (Cri) 664. In the recent decision of Amit Singh Vs. State of Maharashtra and another (2012) 2 Supreme Court Cases (Cri) 858, further apex court relying upon decision of Hari Ram's case (supra) held in para 14 that Amendment Act 33 of 2006 provides that the benefit of juvenility shall be extended even to a juvenile who had completed the age of the 18 years on 1.4.2001 and the Act shall have retrospective effect and in para 18 of the judgment the court held that from the provision of Section 7-A it is clear that the claim of juvenility can be raised before any court at any stage, even after the final disposal of the case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised.

(16) Now, in the present case there is no controversy that the age of the revisionist was 17 years 10 months and 5 days on the date of commission of the alleged offence and the revisionist had not completed eighteen years of age. In view of section 2K, 2(l), 7-A read with section 20 of the said Act and Rule 2007 made thereunder the provision, therefore, would apply to the revisionist's case and on the date of alleged incident it has to be held that the revisionist was a juvenile, therefore, the appellate court's order dated 15.4.2010 was erroneous and liable to be set aside.

(17) The present revision has, therefore, to be allowed on the ground that notwithstanding the definition of juvenile under the Juvenile Act, 1986, the revisionist's case is covered by the definition of Juvenile in Section 2(k) and the definition of juvenile in 'conflict with law' in section 2(l) Juvenile Justice Act, 2000 as amended.

(18) I, therefore, allowed this revision and set aside the order dated 15.4.2010, in respect of the revisionist, passed by Additional District & Sessions Judge, Court No. 9, Kanpur Dehat and keeping in view the provisions of section 2(k), 2(l), 7-A and 20 of the Juvenile Justice Act, 2000 and Rule 12 and 98 of Juvenile Justice Rule, 2007 held that since the revisionist was below 18 years of age at the time of commission of the offence and the provision of said Act would apply in this case, hence the matter is accordingly remitted to the Additional District & Sessions Judge, Court No. 9, Kanpur Dehat for disposal of the application 64-Kha in respect of the revisionist afresh in the light of above observations in accordance with law and to pass appropriate orders within three months from the date of receipt of a copy of this order.

Order Date :- 07.12.2012

NS