Uttarakhand High Court

Arun Kumar vs State Of Uttarakhand on 23 December, 2022

                                                              Reserved
  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Criminal Revision No. 127 of 2011


Arun Kumar                                         ...... Revisionist

                                    Vs.

State of Uttarakhand                             ..... Respondent


Presents:-
Mr. Ravi Joshi, Advocate for the revisionist.
Mr. Ranjan Ghildiyal, A.G.A. for the State of Uttarakhand.


                              JUDGMENT

Per:-Hon'ble Ravindra Maithani, J.

The challenge in this revision is made to

the following:-

(i) Judgment and order dated 29.10.2009,

passed in Case No.2069 of 2009, State Vs.

Arun, by the court of II Judicial Magistrate,

Dehradun ("the case"). By it, the revisionist

has been convicted under Sections 325 and

354 IPC, and sentenced as hereunder:-

(A) Under Section 325 IPC to

undergo rigorous imprisonment for

a period of one year with a fine of

Rs. 500/-. In default of payment of

fine to undergo simple

imprisonment for a further period

of 10 days.

(B) Under Section 354 IPC to

undergo simple imprisonment for a

period of six months.

(ii) judgment and order dated 07.06.2011,

passed in Criminal Appeal No.86 of 2009,

Arun Kumar Vs. State of Uttarakhand, by

the court of Additional District Judge/VI

F.T.C., District Dehradun ("the appeal"). By

it, the judgment and order dated

29.10.2009, passed in the case, has been

upheld.

2. Heard learned counsel for the parties and

perused the record.

3. In this revision, an application has been

moved by the revisionist that he was below 18 years of

age on the date of incident. Therefore, this matter may

be examined. On 07.09.2020, this Court observed as

hereunder:-

"Considering the submissions, the trial Court is directed to inquire into the claim of juvenility of the revisionist, in accordance with law and after holding an inquiry on this issue and submit a report to this Court within a period of two months from today.

The revisionist is directed to produce all the relevant documents before the trial Court.

Application moved for the aforementioned purpose is disposed of accordingly.

List this matter after the report is received."

4. A report has now been received from

Judicial Magistrate, II, Dehradun. After inquiry, it is

concluded that on the date of incident, i.e. on

16.01.2000, the revisionist was 16 years 5 days old. He

was juvenile in conflict with law.

5. Learned counsel for the revisionist would

submit that the revisionist was a juvenile in conflict with

law on the date of incident. Therefore, the revision

should be decided accordingly.

6. Learned State Counsel would submit that

as per report of the Judicial Magistrate, II, Dehradun,

submitted pursuant to the order of this Court, the

revisionist was 16 years 5 days old on the date of

incident.

7. In the instant case, according to the

prosecution, the incident took place on 16.01.2000. The

charge was framed on the revisionist on 30.01.2001. He

was convicted by the trial court on 29.10.2009. The

appeal was dismissed on 07.06.2011.

8. When the revisionist was examined under

Section 313 of the Code of Criminal Procedure, 1973, on

23.02.2007, he revealed his age 22 years. But the fact

remains that this Court directed an enquiry to be

conducted with regard to the age of the revisionist by the

trial court and now a report has been received that the

date of birth of the revisionist is 11.01.1984. Therefore,

he was 16 years 5 days old on the date of incident.

9. On the date when this incident took place

in the case, the Juvenile Justice Act, 1986 ("the 1986

Act") was in force. According to Section 2(h) of the 1986

Act, "juvenile" means a boy, who has not attained

the age of sixteen years or a girl who has not

attained the age of eighteen years. But the Juvenile

Justice (Care and Protection of Children) Act, 2000 ("the

2000 Act") had changed the very concept of juvenile.

According to Section 2(k) of the 2000 Act "juvenile" or

"child" means a person who has not completed

eighteenth year of age." According to Section 2(l) of the

2000 Act, "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."

10. Section 20 of the 2000 Act makes

provisions with regard to pending cases. It is as

hereunder:-

"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 (1) of section (2), even if the juvenile ceases to be so on or before the date of commencement of this Act and the provision 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. In fact, a Section 7 (A) was inserted in the

2000 Act with regard to the stages at which juvenility

may be claimed. It reads as hereunder:-

"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 recognized 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."

12. In the case of Pratap Singh Vs. State of

Jharkhand and Another, (2005) 3 SCC 551, the Hon'ble

Supreme Court in Para 7 posed two questions, which are

as hereunder:-

"7. The dual questions which require authoritative decision are:

(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."

13. The Hon'ble Supreme Court replied to these

two questions in Para 37 as follows:-

"37. The net result is:

(a) 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 the court.

(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 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."

14. In the case of Hari Ram Vs. State of

Rajasthan (2009) 13 SCC 211, the Hon'ble Supreme Court

observed, "The proviso and the Explanation to Section

20 were added by Amendment Act 33 of 2006, to set at

rest any doubts that may have arisen with regard to

the applicability of the Juvenile Justice Act, 2000, to

cases pending on 1-4-2001, where a juvenile, who was

below 18 years at the time of commission of the

offence, was involved."

15. In the case of Fanu @ Irfan Vs. State of

Uttarakhand and Another, C-482 No.345 of 2013, this

Court, discussed this issue and in Para 15, 16, 17, 18, 25

and 27, observed as hereunder:-

"15. In the case of Hari Ram Vs. State of Rajasthan 2009 (13) SCC 2011, Hon'ble Supreme Court has categorically observed as hereunder:-

"The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1-4- 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved" (para 38)"

"16. The question which was posed by the Hon'ble Supreme Court, in the case of Hari Ram (supra) is as hereunder:-

"29. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1-4-2001, would be entitled to be considered as a juvenile for the

said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile relation to the offence alleged to have been committed by him?"

"17. And, after discussing various pronouncement as well as statutory provisions, it was held by the Court as hereunder:-

"59. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, placed 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 1-4- 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"

"18. In the case of Raju Vs State of Haryana, 2019 SCC online SC 258, the Hon'ble Supreme Court interpreted the provision of Section 7 A of the 2000 Act, as well as the rules made thereunder. While holding that the petitioner, therein was juvenile on the date of the commission of the offence, orders were accordingly passed in that matter."

"25. Another question which has significance is whether the Juvenile Justice Board will conduct the trial de-novo or the Juvenile Justice Board will proceed from the stage at which the trial is pending. A conjoint reading of Sections 7 A, 20 and 64 of the Act as well as Rule 97 of the 2007 Rules, makes it abundantly clear that the Juvenile Justice Board shall proceed from the stage at which the trial is pending and shall not conduct de-novo trial."

"27. The record of the Sessions Trial No. 130 of 1995 pending in the Court of Vth Additional learned Sessions Judge, Haridwar shall be forwarded to the Juvenile Justice Board, District Haridwar. The Juvenile Justice Board, District Haridwar shall proceed from the stage at which the Sessions Trial is pending and decide the case in accordance with law as expeditiously as possible."

16. In the instant case, the revisionist was 16

years 5 days old on the date of commission of the offence.

Therefore, he was not a juvenile under 1986 Act, but he

was a juvenile in conflict with law under the 2000 Act. The

trial of the revisionist was pending when the 2000 Act

came into force. In view of the settled legal position, the

revisionist is definitely entitled to the benefits of the 2000

Act. Accordingly, the record of Criminal Case No.2069 of

2009, State Vs. Arun, in the court of Judicial Magistrate,

II, Dehradun, has to be forwarded to the Juvenile Justice

Board, District Dehradun, for disposing it in accordance

with law. Accordingly, the impugned orders are liable to be