Rajasthan High Court

Brij Bhushan vs State (2023:Rj-Jp:17545) on 11 August, 2023

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:17545]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Criminal Appeal No. 345/1987

Brij Bhushan son of Satish, R/o Masalpur, P.S. Masalpur, District
Sawaimadhopur.
(At present in District Jail, Sawaimadhopur)
                                                               ----Accused-Appellant
                                       Versus
The State of Rajasthan
                                                                     ----Respondent

Connected With S.B. Criminal Appeal No. 353/1987 Prahlad son of Nathulal, R/o Masalpur, P.S. Masalpur, District Sawaimadhopur.

----Accused-Appellant Versus The State of Rajasthan

----Respondent

For Appellant(s) : Mr. N.A. Naqvi, Sr. Advocate with Mr. Hakam Ali For Respondent(s) : Mr. S.S. Mehla, P.P.

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

Judgement Reserved on : : 07.08.2023

Judgement Pronounced on : : 11.08.2023

These criminal appeals are directed against the judgement

dated 26.8.1987 passed by learned Additional Sessions Judge,

Karauli (Rajasthan) (for brevity-`the learned trial court') in

Sessions Case No.8/1986 whereby, while convicting the accused-

appellants (for short-`the appellants) under Section 376 IPC,

they have been sentenced as under:

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"Section 376 IPC - 10 years rigorous imprisonment and Rs.1,000 fine; in default whereof, one year additional rigorous imprisonment."

The relevant facts in brief are that a written report (Ex.P4)

dated 28.1.1985 was lodged by the complainant Merry Zaikab,

an Auxiliary Nurse and Midwife, with the Police Station, Masalpur

stating therein that on that very day at about 9.30 am when she

was going to Siloti Village, she was subjected to rape by the

appellants whereupon, an FIR (Ex.P5) came to be lodged under

Section 376 IPC. After investigation, the police filed charge sheet

against the appellants under the aforesaid provision. The learned

trial court framed charge under Section 376 IPC against the

appellants and after trial, convicted and sentenced them as

stated hereinabove.

During pendency of the instant appeals, the appellants filed

interim applications under Section 7-A of the Juvenile Justice

(Care and Protection of Children) Act, 2000 (for brevity-`the Act

of 2000') stating therein that as per the school record, their date

of birth is 12.7.1967 and 5.7.1967 respectively and the incident

being of 28.1.1985, they were below 18 years of age on that day

and were, therefore, juvenile. It was, therefore, prayed that the

learned trial court be directed to conduct an enquiry as to their

juvenility on the date of incident. The learned Public Prosecutor

did not oppose the prayer. In view of the settled legal principle

that juvenility of an accused has to be adjudicated upon as and

when pleaded at any stage of case, the applications filed under

Section 7A of the act of 2000 were allowed by this Court vide

order dated 17.1.2023 and the learned trial court was directed to

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make an enquiry to determine the age of the appellants on the

date of incident.

In pursuance of the aforesaid order, the learned trial court,

i.e., learned Additional Sessions Judge, Karauli, after conducting

an enquiry, vide its report dated 1.4.2023, found both the

appellants juvenile under the Act of 2000. A perusal of the report

dated 1.4.2023 reveals that as per the record of Government

Primary School Masalpur where the appellants have taken

admission initially in Class-I, date of birth of the appellant-Brij

Bhushan is 19.7.1967 and that of appellant Prahlad is 5.7.1967.

It was found that both the appellants have obtained transfer

certificate after passing Class-V from the school and thereafter

took admission in Class-VI in the Government Higher Secondary

School, Masalpur and record of that school also verified their

date of birth as 19.7.1967 and 5.7.1967 respectively. It was held

by the learned trial court that marks sheet of their Secondary

School Examination issued by the Board of Secondary Education,

Rajasthan also verified their date of birth as mentioned in the

school record. In the light of ocular and documentary evidence

recorded by the learned trial court, both the appellants were

found to be juvenile under Section 2(k) and 2(l) of the Act of

2000 not having completed 18 years of age on the date of

incident, i.e., 28.1.1985.

A copy of the aforesaid report was made available to the

learned Public Prosecutor by the office under an order of this

Court dated 17.7.2023; but, he did not dispute the findings so

recorded by the learned trial court.

After going through contents of the enquiry report dated

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1.4.2023 and record of the enquiry appended therewith, this

Court is also satisfied that both the appellants have not

completed the age of 18 years on the date of incident and were

juvenile under the Act of 2000.

Learned senior counsel for the appellants, relying upon a

judgement of the Hon'ble Apex Court of India in the case of

Satya Deo @ Bhoorey vs. State of U.P.-(2020) 10 SCC 555,

would submit that in view of the juvenility of the appellants on

the date of incident, while maintaining their conviction, the

matter is required to be remitted back to the jurisdiction of the

Juvenile Justice Board for passing appropriate order/direction

under Section 15 of the 2000 Act. He further submits that the

aforesaid judgement in the case of Satya Deo @ Bhoorey has

been approved by a Larger Bench of the Hon'ble Supreme Court

of India in the case of Karan @ Fatiya vs. State of Madhya

Pradesh-AIR 2023 SC (Criminal) 520. He, therefore, prays

that the appeals may be disposed of with the directions as issued

by the Hon'ble Supreme Court of India.

Learned Public Prosecutor did not oppose the prayer made

by learned senior counsel for the appellants in view of law laid

down by the Hon'ble Supreme Court of India in the case of

Satya Deo @ Bhoorey and approved by the Larger Bench in

the case of Karan @ Fatiya.

Heard. Considered.

Their Lordships have, in the case of Satya Deo @

Bhoorey (supra), held as under:

"20. In light of the legal position as expounded above and

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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.

21. 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.

22. 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:

"25. Special provision in respect of pending cases- 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."

23. 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

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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 vs. state of M.P.-(2001) 4 SCC 355, 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 petition is pending.

24. 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

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Act to all pending proceedings.

25. 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:

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;

26. 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 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, the 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.]

27. Decision of this court in Gaurav Kumar v. State of Haryana (2019) 4 SCC 549, which was relied upon by the

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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 10 (2019) 4 SCC 549 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.

28. Satya Deo has undergone incarceration for more than 2 years thus far. In Mumtaz, 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 Pradesh-(2013) 11 SCC 193, had held (SSC pp. 795-96, para 22):

"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. (2013) 11 SCC 193 : (2013) 4 SCC (Cri) 725] in the following terms: (SCC pp. 210-11, para 32).

"32. A perusal of the "punishments" provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him [clause

(a)] is hardly a "punishment" that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to 11 (2013) 11 SCC 193 expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or

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fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986."

29. Following the aforesaid ratio and the legal position elucidated above in Jitendra Singh case, 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.

30. 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."

31. The appeal filed by the Satya Deo is partly allowed in the aforesaid terms and all the pending application are disposed of."

A Larger Bench of the Hon'ble Supreme Court has, in the case of Karan @ Fatiya (supra), held as under:

"33. Having considered the statutory provisions laid down in Section 9 of the 2015 Act and also Section 7A of the 2000 Act which is identical to Section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested

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and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the Trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act.

34. In view of the above discussion and the position in law as laid down by the aforesaid judgments and many others referred to in the above judgments, we approve the view taken by this court in the case of Jitendra Singh-(AIR 2015 (Supp) 200), Mahesh-AIR Online 2018 SC 1206, and Satya Deo (supra)-AIR Online 2018 SC 1206."

As already observed, since, the appellants have been found

to be juvenile on the date of incident, in view of the law laid

down by the Hon'ble Supreme Court in the aforesaid cases, while

maintaining their conviction recorded by the learned trial court

vide judgement 26.8.1987, the sentence awarded to them is set

aside. The matter is remitted back to the jurisdictional Juvenile

Justice Board for passing appropriate orders/directions under

Section 15 of the Act of 2000 including the question of

determination and payment of appropriate quantum of fine and

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compensation to be awarded to the victim. The appellants, who

are on bail, are directed to appear before the jurisdictional