Ram Nayan And 4 Others vs State Of U.P.
2023 Latest Caselaw 10778 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 4499 of 2015
 

 
Appellant :- Ram Nayan And 4 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Bipin Kumar Tripathi,Dinesh Kumar Pandey,Kamalesh Kumar Nishad,Manu Sharma,Nazrul Islam Jafri,Pradeep Kumar Chaurasia,Ram Awadh Maurya
 
Counsel for Respondent :- G.A.,Pawan Kumar,Sanjeev Kumar Singh
 

 
Hon'ble Siddhartha Varma,J.

Hon'ble Manish Kumar Nigam,J.

As per Hon'ble Manish Kumar Nigam, J.

Ref :- Order on Criminal Misc. Application No.91499 of 2016

1. Heard learned Counsel for the appellant no.3, Suresh @ Suttur and learned A.G.A. for the State.

2. Present criminal appeal has been filed by appellant no.1-Ram Nayan, appellant no.2-Chetman, appellant no.3-Suresh @ Suttur, appellant no.4-Ram Surat and appellant no.5-Raghav Sharan against the judgment and order dated 30.9.2015 passed by Addl. Sessions Judge, Court no.2, Maharajganj in S.T. No.31 of 1998 (State Vs. Suresh @ Suttur & others) connected with S.T. No.40 of 2000 (State Vs. Raghav Sharan), whereby the appellants have been convicted and sentenced for life imprisonment under Section 302/149, for imprisonment of two years under Section 147 IPC and for imprisonment of three years under Section 201 I.P.C. Fine has also been imposed on the appellants.

3. A First Information Report was lodged in Case Crime No.63 of 1993 under Section 147, 302, 201 I.P.C., P.S.-Kotwali, District-Maharajganj against the Suresh @ Suttur, Chetman s/o Deep Narain, Ram Surat s/o Chetman, Ram Nayan s/o Chauthi Kewat, Raghav Sharan S/o Chetman. As per the prosecution story on 5.3.1993 accused Suresh @ Suttur Yadav had taken Udai Raj the son of first informant from his house and since then Udai Raj had not come back. Missing report was lodged with the police. Suresh @ Suttur Yadav was arrested and on his pointing out dead body of the deceased Udai Raj was recovered by the Police. After investigation charge-sheet was submitted by Police against appellants. However, no charge-sheet was submitted against Raghav Sharan. Initially the accused Raghav Sharan could not be arrested by Police as he was absconding after the incident. Later on when accused Raghav Sharan was arrested, a supplementary charge-sheet was filed against Raghav Sharan by the Police. Learned Magistrate thereafter vide orders dated 11.8.1998 and 2.8.2000 committed the case to trial before the Sessions Court. Sessions Trial No.31 of 1998 (State Vs. Suresh @ Suttur and others) and S.T. No.40 of 2000 (State Vs. Raghav Sharan) were tried together by the sessions court and all the accused-appellants were convicted and sentenced by the sessions Judge vide judgment and order dated 30.9.2015.

4. During the pendency of the present appeal, an application being Application No.91499 of 2016 was filed by appellant no.3 Suresh @ Suttur praying that an inquiry in respect of the juvenility of the appellant no.3, who was a minor on the alleged date of crime i.e. 05.03.1993 be undergone and necessary orders be passed in this regard. The claim of the juvenility was made on the ground that the appellant no.3, Suresh @ Suttur was admitted in Class 2nd on 05.09.1983 and has passed Class-5th on 25.4.1987. The date of birth mentioned in his mark-sheet was 18.3.1977 which was issued by the Principal, Ram Aadhar Junior High School Gaushala, Maharajganj. Applicant/appellant no.3 relied upon the transfer certificate issued by the institution and the other documents mentioned in the affidavit filed in support of the application for consideration of his juvenility. This Court vide order dated 10.10.2017 directed the District Judge, Maharajganj to get an inquiry conducted from the concerned Juvenile Justice Board regarding the plea of juvenility made by the appellant no.3 Suresh @ Suttur and asked him to submit his report within two months from the date of order. On 08.12.2017, a report was submitted by the Juvenile Justice Board, Maharajganj to the effect that on the date of incident i.e. 5.3.1993, appellant no.3, Suresh @ Suttur was 15 years 11 months and 17 days old. The aforesaid report along with the documents considered by the Juvenile Justice Board, Maharajganj were placed on record in the present appeal. By order dated 31.10.2019, learned A.G.A. was granted time to file counter affidavit to the report of Juvenile Justice Board, Maharajganj within four weeks'. On 02.11.2020, an affidavit was filed by learned A.G.A. mentioning therein that as per instructions provided by Station House Officer in writing, no appeal has been preferred to assail the order dated 8.12.2017 passed by Juvenile Justice Board, Maharajganj.

5. Today when the appeal was taken up, the Counsel for the appellant no.3 relying upon the report of the Juvenile Justice Board, Maharajganj dated 8.12.2017 submitted that on the date of alleged incident i.e. 5.3.1993, the appellant no.3, Suresh @ Suttur was aged about 15 years 11 months and 17 days i.e. appellant no.3 was a juvenile who was in conflict with law on the relevant date. Counsel for the appellant no.3 submitted that appellant no.3 may be released forthwith. It has been submitted by learned Counsel for the appellant no.3 that the bail application of appellant no.3 was rejected by this Court vide order dated 8.4.2016 and has further submitted that the appellant no.3 Suresh @ Suttur was taken in judicial custody on 29.9.2015 and since then, the appellant no.3 has remained in jail for about 8 years. It has been further contended that in view of Section 18(g) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred as Act of 2015), a child can be sent to a special home for a period not exceeding three years and as the appellant has remained in jail for about 8 years, the appellant is entitled to be released forthwith.

6. Per contra, learned A.G.A. submitted that for the first time, the appellant has raised the claim of juvenility before this Court in the present appeal. Prior to this i.e. during investigation or during his trial, appellant no.3 never claimed himself to be a juvenile.

7. It has been further contended by learned A.G.A. that the alleged incident is dated 5.3.1993 and on the aforesaid date, the provisions of Juvenile Justice Act, 1986 (hereinafter referred as Act of 1986) were in force. Act of 1986 was repealed by Section 69 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as Act of 2000) which came in force on 1.4.2001. The learned A.G.A. relied upon the Constitutional Bench judgment of the Hon'ble Apex Court in case of Pratap Singh Vs. State of Jharkhand and another reported in (2005) 3 SCC 551 wherein, it has been held by the Hon'ble Apex Court that the Act of 2000 would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and was pending when the Act of 2000 came in force and the person had not completed 18 years of age as on 1.4.2001. It has been further contended by the learned A.G.A. that admittedly on 1.4.2001, the appellant no.3 had completed 18 years of age and as such, the provisions of Act of 2000 would not be applicable. It has been further contended that Act of 1986 had been repealed and the appellant had not raised any claim of his juvenility during the period when the Act of 1986 was in force and therefore the same cannot be considered in view of the judgment of the Apex Court in case of Pratap Singh (supra). Learned A.G.A. further contended that the inquiry made by the Juvenile Justice Board, Maharajganj was not in accordance with law and the same cannot be relied upon.

8. In reply, learned Counsel for the appellant contended that after the case of Pratap Singh (Supra), certain amendments were made in the Act of 2000 by the Act No.33 of 2006. Section 2(l) defining juvenile in conflict of law was also amended by Act No.33 of 2006 further Section 7(A) was added in the Act of 2000 the proviso to Section 16 of Act of 2000 was also amended by Section 13 of Act No. 33 of 2006.

9. Counsel for the appellant further contended that the Hon'ble Apex Court in Case of Dharambir Vs. State (NCT of Delhi) and another reported in (2010) 5 SCC 344, has held 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 juvenile, is raised after they have attained the age of eighteen years, on or before the date of commencement of the Act of 2000 and were undergoing sentences upon being convicted.

10. We have considered the rival submissions. The striking distinction between the Act of 1986 and Act of 2000 is with regard to the definition of juvenile. Section 2(h) of Act of 1986 defines juvenile as under :-

"2(h) juvenile means a boy who has not attend the age of 16 years or a girl who has not attend the age of 18 years"

Section 2(k) of Act of 2000 defines juvenile as under :-

" 2(K) Juvenile or child means a person who has not completed 18 years of age."

11. Thus the distinction between the Act of 1986 and Act of 2000 is that under the Act of 1986, juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the Act of 2000, no distinction have been drawn between the male and female juvenile. The limit of 16 years in Act of 1986 has been raised to 18 years in Act of 2000. In Act of 2000, wherever the word "juvenile" appears the same will now have been taken to mean a person who has not completed 18 years of age.

12. In Pratap Singh (supra), a reference was made by an order dated 7.2.2003 noticing the conflicting views in case of Arnit Das Vs. State of Bihar reported in (2000) 5 SCC 488 and Umesh Chandra Vs. State of Rajasthan reported in (1982) 2 SCC 202, the Constitutional Bench framed two questions, which are as under :-

(a) Whether the date of occurrence will be the reckoning date for determining the age of alleged offender as juvenile offender or the date when he is produced in 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 w.e.f. 1.4.2001.

13. The Hon'ble Apex Court after considering the provisions of Act of 1986 as well as the provisions of Act of 2000 answered the question as under :-

The 2000 Act would be applicable in a pending proceeding in any Court or authority initiated under 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001.

Prior to amendment, the definition of Juvenile in conflict with law under the Act of 2000 was as under :-

"Section 2(l) (unamended):- Juvenile in conflict with law" means a juvenile who is alleged to have committed an offence.

14. After the amendment by Act No. 33 of 2006 the definition of juvenile in conflict with law as in the amended Section 2(l) is as under:-

" 2(l) (after amendment), " Juvenile in conflict with law" means juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence."

15. In Dharambir Vs. State (NCT of Delhi) and another (supra), the Apex Court in para 10, 11, 12, 13, 14 and 15 (at pages 346-348) held as under :-

10. Section 20 of the Act of 2000, the pivotal provision, as amended, reads as follows:

"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:

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 (l) 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."

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.

12. Clause (l) of Section 2 of the Act of 2000 provides that "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. Section 20 also 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 Act of 2000.

13. At this juncture, it will be profitable to take note of Section 7A, inserted in the Act of 2000 with effect from 22nd August, 2006. It reads as follows:

"7A. 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect."

14. Proviso to sub-section (1) of Section 7A 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 Section 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 Vs. State of Rajasthan."

16. Recently the Hon'ble Apex Court in case of Vinod Katara Vs. State of Uttar Pradesh reported in (2022) SCC Online SC 1204 has held in Paragraph 26 which is quoted as under:-

26. It is thus well settled that in terms of Section 20 of 2000, in all cases, where the accused was above 16 years, 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.

17. Further learned Counsel for appellant invited our attention toward definition of "child" and "child in conflict with law" as defined in Act of 2015 and contended that the definition "juvenile" and "juvenile in conflict with law" as defined in Act of 2000 are pari materia.

18. Section 2(12) of the Act of 2015 defines "child" as under:-

2(12). "Child" means a person who has not completed eighteen years of age.

Section 2(13) of Act of 2015 defines "child in conflict with law" as under:-

2(13). "Child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of offence."

19. We are thus of the considered view that the contention of learned A.G.A. that as the appellant no.3 has completed 18 years of age on the date of enforcement i.e. 1.4.2001 of Act of 2000 will not be entitled for the benefit of Act of 2000 is not tenable as after the amendment of definition of juvenile in conflict with law as provided under Section 2(l) of Act of 2000 by Act No. 33 of 2006 and in view of judgment of Apex Court in Dharambir Vs. State (NCT of Delhi) and another (supra) and Vinod Katara Vs. State of Uttar Pradesh (supra) , the juvenility of accused is to be determined on the date of offence, and in case, the accused is juvenile on the date of offence, he will be entitled for protection of 2000 Act. Judgment in case of Pratap Singh (supra) will not come in way after the amendment of definition of "juvenile in conflict with law" by Act No.33 of 2006 and subsequent pronouncement of Hon'ble Apex Court referred above. Further in the light of definition of "child" and "child in conflict with law" as provided in Act of 2015, there is no change in legal position as the material date for determining the juvenility, it is the date of commission of offence and not the date of commencement of Act of 2000 as held in Pratap Singh (supra).

20. Coming to the facts of the present case, the Juvenile Justice Board, Maharajganj has found appellant no.3 to be aged of 15 years 11 months and 17 days on the date of occurrence i.e. 5.3.1993, therefore, even as per the provisions under the Act of 1986, the appellant no.3 was juvenile and after the commencement Act of 2000 or Act of 2015, the juvenility of a person is to be tested on the date of occurrence and juvenile means a person who has not completed the age of 18 years on the date of occurrence. Thus on both counts appellant no.3 was a juvenile as per the report of Juvenile Justice Board, Maharajganj dated 8.12.2017.

21. Contention of learned A.G.A. for the State that the enquiry made by the Juvenile Justice Board, Maharajganj was not in accordance with law, had to be rejected for the reason that neither the State nor the informant had filed any appeal against the order dated 8.12.2017 passed by Juvenile Justice Board, Maharajganj declaring appellant no.3 as juvenile as on 5.3.1993 i.e. date of occurrence and as such the order dated 8.12.2017 passed by the Juvenile Justice Board, Maharajganj declaring appellant no.3 to be juvenile became final.

22. Learned Counsel for the appellant drew our attention towards procedure to be followed for determination of age provided under Act of 2000 and Act of 2015.

23. The procedure to be followed for the determination of age is provided under Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short 2007 Rules).

"12. Procedure to be followed in determination of age.--(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

24. The Act of 2000 stands repealed by the Act of 2015. The procedure for determining the age is now part of Section 94 of the Act of 2015 which was earlier provided under the abovementioned Rule 12 of the Rules.

25. Section 94 (2) of Juvenile Justice (Care and Protection of Children ) Act, 2015 is quoted as under :-

94.Presumption and determination of age - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

26. We have perused the report of the Juvenile Justice Board, Maharajganj dated 8.12.2017. The Board considered the relevant documentary evidence produced before it regarding the age of appellant no.3 and also considered the oral evidence of Smt. Sudha Bala Singh, Principal of the Ram Aadhar Junior High School Gaushala, Maharajganj who was also cross-examined by the State and came to the conclusion, in absence of any evidence to the contrary, that the appellant no.3 was aged 15 years 11 months 17 days on the date of incident i.e. 5.3.1993. The Board has considered the relevant material as referred in Rule 12(3) of 2007 Rules as well as Section 94 of thee 2015 Act and has not committed any illegality in determining the age of the accused.

27. We therefore are of the opinion that no illegality had been committed by the Juvenile Justice Board, Maharajganj in conducting an enquiry and declaring appellant no.3 as juvenile after following the due procedure as provided under the Act, coupled with the fact that the aforesaid order of the Juvenile Justice Board was never challenged either by the State or by the informant and has become final.

28. It has been lastly contended by learned A.G.A. that as the appellant no.3 never claimed the juvenility during the course of investigation or during the trial before the Sessions Court and for the first time claimed the same in the present appeal by means of an application dated 16.3.2016. On the date i.e. 16.3.2016 when the application was moved by the appellant the Juvenile Justice (Care and Protection of Children) Act, 2000 was also repealed by Section 111 of 2015 Act, and therefore, the claim of juvenility cannot be decided under the Act of 2000 as had been done by the Juvenile Justice Board, Maharajganj.

29. Per contra learned Counsel for the appellant contended that in view of proviso to Sub-section (2) of Section 9 of Act of 2015, claim of juvenility could be raised before any court and it should be recognised at any stage even after final disposal of the case, and such a claim should be determined in accordance with provisions contained under the Act of 2015 and rules made these under even if the person ceased to be a child on or before the date of commencement of Act of 2015.

30. Section (9) of the Act of 2015 is quoted as under :-

9. Procedure to be followed by a Magistrate who has not been empowered under this Act.- (1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.

(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.

31. Learned Counsel for appellant drew our attention towards Rule 90 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 and contended that no child should be denied the benefits of the Act and the rules made thereunder and the benefit should be available to all the persons who were children at the time of commission of the offence even if they ceased to be children during the pendency of inquiry or trial.

32. Rule 90 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 is quoted as under :-

"90. Pending Cases.- (1) No child shall be denied the benefits of the Act and the rules made thereunder.

(2) The benefits referred to in sub-rule (1) shall be made available to all persons who were children at the time of the commission of the offence, even if they ceased to be children during the pendency of the inquiry or trial.

(3) While computing the period of detention or stay or sentence of a child in conflict with law, all such period which the child had already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment contained in the final order of the court or the Board."

33. The submission of learned A.G.A. as noted in the preceding paragraph prima-facie appears to be very attractive but in fact has no substance. Act of 2000 was repealed by Section 111 of the Act of 2015 w.e.f 15.1.2016. Section 111 of the Act of 2015 is quoted as under :-

"111. Repeal and savings.--(1) The Juvenile Justice Juvenile Justice ( Care and Protection of Children) Act, 2000 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act."

34. Sub-section (2) of Section 111 of Act of 2015 postulates that any thing done or any action taken under Act of 2000 shall be deemed to have been done or taken under the corresponding provision of Act of 2015.

35. Having heard the arguments of respective Counsel, we are of the opinion that there is no substantial difference between the provisions of Act 2000 and Act of 2015 except that Act of 2015 takes cares of crime committed by children in the age group of 16-18 years of age.

36. The Hon'ble Apex Court in case of Sanjay Patel Vs State of U.P. reported in 2022 SCC Online SC 450 has entertained plea of juvenility of accused even after dismissal of Special Leave Petition by the Supreme Court.

37. Thus in view of provisions of Act of 1986, Act of 2000, Act of 2015 and the judgments of Hon'ble Apex Court referred above, we are of the considered opinion that if the accused was juvenile in conflict with law i.e. below the age of 18 years on the date of incident the protection of Act of 2000 and Act of 2015 would be applicable to accused irrespective of the fact that claim was made after attaining the age of 18 years and was made at a late stage of trial/inquiry or even at the stage of trial, revision, appeal or any other criminal proceedings in respect of juvenile in conflict with law in any court.

38. In the present case, as evident from the record and submissions raised by the learned Counsel appearing for appellant no.3 has already undergone about 8 years imprisonment. As we have already held that the appellant no.3 was juvenile in conflict with the law on the date of occurrence i.e. 3.5.1993, the appellant is entitled to the benefit of Act of 2015.

39. Now, since the appellant no.3 was a juvenile on the date of incident and no argument has been advanced about conviction of the accused-appellant no.3 for the aforesaid offence, therefore, this Court has to take into consideration provisions of Section 18 of Act of 2015 to pass order in respect of appellant no.3 (juvenile in conflict with law). If the submission raised by the learned Counsel for the appellant as well as the learned A.G.A are taken into consideration, the appellant no.3 declared juvenile in conflict with the law under the Act of 2015 can be sent to special home for a maximum period of 3 years. At this juncture it would be appropriate to look into the ratio laid down by Apex Court while dealing with similar situation like in this case in hand.

40. In Vaneet Kumar Gupta @ Dharminder Vs. State of Punjab reported in (2009) 17 SCC 587, accused, who was sentenced to life under Section 302 read with Section 149 I.P.C, was found to be a juvenile at the time of commission of the offence. The Apex Court noticing the fact that the accused is in jail for several years directed his release from the jail.

41. In LakhanLal Vs. State of Bihar reported in (2011) 2 SCC 251, accused, who was sentenced to life under Section 302 read with Section 34 IPC was found to be a juvenile in conflict with law at the time of commission of offence. By the time his appeal reached to Supreme Court, he had crossed 40 years of age. He was in jail for more than 7 years. Under these circumstances, the Apex Court set aside his life sentence and directed his release.

42. In Amit Singh Vs. State of Maharashtra and another reported in (2011) 13 SCC 744, accused, was found guilty under Section 396, 506, 341, 379 read with Section 120-B I.PC. and Section 25(1-B), 5 read with Section 27 of Arms Act. Apart from other sentence of imprisonment, he was also sentenced to life and his sentences were confirmed by the Bombay High Court. The Supreme Court also dismissed his Special Leave Petition. Subsequently, he filed a writ petition before the Supreme Court under Article 32 of Constitution claiming juvenility which was considered and he was found to be eligible for the benefit under Act of 2000 and considering the fact that by that time he had been in jail for 12 years, the Hon'ble Apex Court held that as he was in jail for more than the maximum period for which a juvenile may be confined in a special home and directed his released from jail.

43. In Kalu @ Amit Vs. State of Haryana reported in (2012) 3 SCC (Crl) 761, as the appellant was a juvenile in conflict with law within the meaning of Act of 2000 on the date when offence was committed and he was already in jail for 9 years and has also attained majority long back, Hon'ble Apex Court directed for release of the appellant from jail and also noticing Section 19 of Act of 2000 held that accused shall not incur any dis-qualification because of his conviction.

44. In Babla @ Dinesh Vs. State of Uttarakhand reported in (2012) 3 SCC (Crl) 1067, the appellant was sentenced to life under Section 302 read with Section 149 IPC, and on the basis of the report of Sessions Judge, Hon'ble Apex Court accepted that the appellant was juvenile in conflict with the law on the date of commission of offence and since the appellant was in jail for more than three years out of the maximum period prescribed under Section 15 of Act of 2000, set aside his life sentenced and directed his immediate release from the jail.

45. In case of Sanjay Patel Vs. State of U.P. (supra), the Hon'ble Supreme Court has held as under :-

" In view of the categorical finding recorded in this case by the competent Juvenile Justice Board, which is based on documentary evidence, in view of sub-section 2 of Section 7A the appellant is required to be forwarded to the Juvenile Justice Board. Under Section 15 of the 2000 Act, the most stringent action which could have been taken against the applicant, was of sending the applicant to a special home for a period of three years.

The certificate dated 1.8.2021, issued by Senior Suprintendent of the concerned jail at Lucknow, records that till 1.8.2021, the applicant has undergone the sentence for 17 years and 3 days. Therefore, now it will be unjust to send the applicant to the Juvenile Justice Board.

Therefore, we allow the application and direct that the applicant-Sanjay Patel accused no.2 in ST. No.28 of 2004 decided by learned Sessions Judge, Maharajganj shalll be forthwith set at liberty provided he is not required to be detained under any other order of the competent Court."

46. If the ratio laid down in the above authorities are taken into consideration and applied to the case in hand, no fruitful purpose would be served by remanding the matter to Juvenile Justice Board as applicant/appellant no.3 has already served out more than 7 years sentence. Moreover, he was aged about 15 years 11 months 17 days on 3.5.1993 and by now must have crossed the age of 45 years.

47. In view of discussions made hereinabove, the appeal is partly allowed in respect of appellant no.3, the judgment and order dated 30.9.2015 passed by Addl. Sessions Judge, Court no.2, Maharajganj in S.T. No.31 of 1998 (State Vs. Suresh @ Suttur and others) , so far as the appellant no.3 has been convicted for the offences under Section 302/149, 147, 201 IPC in Case Crime No.63 of 1993, P.S. Kotwali, District Maharajganj is confirmed. However, so far as punishment is concerned, the same is modified to the period already undergone by the appellant no.3. He shall be set at liberty forthwith if not wanted in any other case.

48. In view of Sub-section (1) of Section 24 of the Act of 2015, the appellant no.3 shall not incur any dis-qualification because of his conviction and period of sentence undergone by him.

Order Date :- 12.4.2023

S. Singh