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2001 DIGILAW 1297 (PNJ)

Sanjeev Kumar v. State Of Haryana

2001-11-21

HEMANT GUPTA, M.L.SINGHAL

body2001
Judgment Hemant Gupta, J. 1. The present revision petition has been placed before the Division Bench in pursuance of the order passed by the Honble Mr. Justice K.S. Garewal dated 21.02.2002 referring the question, whether the petitioner is a "juvenile in conflict with law" in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as `the new Act) and would be entitled to all its benefits. 2. Criminal Miscellaneous No. 1201-M of 2002 is the bail application of the petitioner, who has filed the instant revision petition. Therefore, the revision petition as well as criminal miscellaneous petition filed by the petitioner are being disposed of together by this common order. 3. Before adverting to the contentions raised by the parties, it would be necessary to give few facts. The petitioner as per school record is born on 23.10.1984, whereas the alleged offence has taken place on 20.3.2001. As per the provisions of Juvenile Justice Act, 1986 (hereinafter referred as `the old Act), the petitioner was not a "juvenile" being more than 16 years of age on 20.03.2001. However, on 01.04.2001, the new Act came into force and by virtue of the definition contained in Section 2(k), the petitioner has not completed 18th year of age and, thus, a "juvenile" within the meaning of definition of "juvenile" contained in the said clause. 4. The learned Magistrate considered the question of the age of the accused at the time of commission of offence and vide the impugned order held that the petitioner is not a juvenile under the old Act and the case against him is triable by the court of Sessions. Vide separate order, the learned magistrate committed the case to the Court of Sessions for trial. It is the order passed by the Magistrate holding that the case against the petitioner is triable by the Court of Sessions being not a "juvenile" under the old Act, is impugned in the present petition. 5. The old Act came into force on 02.10.1987, wherein, "juvenile" means a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. 5. The old Act came into force on 02.10.1987, wherein, "juvenile" means a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Section 3 of the old Act contemplates that where an enquiry has been initiated against a juvenile and during the course of such enquiry, the juvenile ceases to be such, the enquiry may be continued, if such person had continued to be a "juvenile". Section 5 of the old Act has constituted Juvenile Courts, whereas, Section 21 of the old Act provides for the orders that may be passed regarding delinquent juveniles. The appeals against the orders passed by a competent authority could be filed to the court of Sessions under Section 37 of the old Act. 6. However, the new Act was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under the said enactment. Said Act came into force on 01.04.2001. Section 2(k) defines "juvenile" or "child" as a person who has not completed 18th year of age. Section 2(l) defines juvenile in conflict with law as a juvenile who is alleged to have committed an offence. Section 3 of the new Act contemplates that where an enquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person if such person had continued to be a juvenile or a child. 7. Chapter II of the Act deals with the constitution of Juvenile Justice Board, its procedures, powers, setting up of observation homes, special homes and the orders that may be or may not be passed regarding juvenile by the Board. 7. Chapter II of the Act deals with the constitution of Juvenile Justice Board, its procedures, powers, setting up of observation homes, special homes and the orders that may be or may not be passed regarding juvenile by the Board. To appreciate the controversy raised in the present petition, it is appropriate to reproduce Sections 2(k), 2(l), 20, 64 and 69 of the new Act. "2(k) : "juvenile" or "child" means a person who has not completed eighteenth year of age. 2(l) : "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence. Section 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. Section 64. Juvenile in conflict with law undergoing sentence at commencement of this Act. - In any area in which this Act is brought into force, the State Government or the local authority may direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of this Act. Section 69. Repeal and Savings. - (1) The Juvenile Justice Act, 1986 (53 of 1986 is hereby repealed. Section 69. Repeal and Savings. - (1) The Juvenile Justice Act, 1986 (53 of 1986 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." 8. A perusal of the various provisions of the two Acts would show that a boy less than 16 years of age and a girl less than 18 years of age were juvenile under the old Act and proceedings in respect of an offence would continue against them before competent authority constituted under the said Act. On the other hand, a person who has not completed 18th year of age, irrespective of boy or girl, would be governed by the provisions of the new Act and will be required to be dealt with by the Juvenile Justice Board. However, the issue which requires determination is in respect of boys who have completed more than 16 years of age, but are less than 18 years of age at the time of commission of offence before the commencement of the new Act. The question is as to whether such boys would be governed by the provisions of new Act keeping in view Sections 20 and 64 of the new Act or such boys shall be dealt with in accordance with common law ? 9. At the outset, a controversy was raised in respect of the relevant date to the determine whether such boy is a juvenile or not. Relying on the decision in Arnit Das v. State of Bihar, 2000(3) RCR(Crl.) 17 (SC) : 2001(5) Supreme Court Cases 488, it was contended that the relevant date is the date on which the person is produced before the Court and not the date of commission of offence. However, that question need not detain us for long in view of the fact that the Supreme Court while disposing of the review application in the above-said case left the said question open vide its order reported in Arnit Das v. State of Bihar, 2002(4) RCR(Crl.) 188 (SC) : 2001(7) Supreme Court Cases 657. 10. However, that question need not detain us for long in view of the fact that the Supreme Court while disposing of the review application in the above-said case left the said question open vide its order reported in Arnit Das v. State of Bihar, 2002(4) RCR(Crl.) 188 (SC) : 2001(7) Supreme Court Cases 657. 10. Earlier in the case of Umesh Chandra v. State of Rajasthan, AIR 1982 Supreme Court 1957, the three Judge Bench of the Honble Supreme Court has held that the relevant date of applicability of the Act so far as the age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. Reference may also be made to Santenu Mitra v. State, 1998(5) Supreme Court Cases 697 and Bhola Bhagat v. State, 1998(1) RCR(Crl.) 21 (SC) : Supreme Court Cases 720, where the date of the commission of the offence was considered relevant. Apart from such precedent, it may be mentioned that the relevant date can be the date of offence alone, inasmuch as, as per Article 20 of the Constitution of India, no person can be convicted for an offence which is not punishable at the time of its commission. An accused of an offence can be convicted only if on the date of occurrence, it was an offence. It is the date of commission of offence which is certain and not the date of production before the court which is capable of being mis-used by the prosecution and the accused. Such uncertainty in respect of applicability of laws depending upon human factors is just not permissible. Therefore, for the purposes of applicability of either the old Act or the new Act, it is the date of commission of the offence which is a relevant date. 11. Admittedly, the petitioner was not a juvenile under the old Act, but is juvenile as defined under Section 2(l) of the new Act. Therefore, for the purposes of applicability of either the old Act or the new Act, it is the date of commission of the offence which is a relevant date. 11. Admittedly, the petitioner was not a juvenile under the old Act, but is juvenile as defined under Section 2(l) of the new Act. The petitioner has specifically relied upon Section 20 of the new Act to contend that proceedings in respect of such juvenile are required to be dealt with under Section 20 of the new Act and, therefore, the court of Sessions even if completes the trial against the petitioner, is precluded from passing any sentence and is required to forward the case to the Board which shall pass orders in respect of the petitioner in accordance with the provisions of the new Act. It was further contended that Section 64 of the new Act contemplates that "juvenile in conflict with law" who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to the a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period. It was, thus, contended that provisions of Section 20 and Section 64 will take into their ambit the persons who are more than 16 years of age and cannot be sentenced by the court of Sessions or even if such juvenile is undergoing sentence, then such juvenile in conflict with law is required to be dealt with under Section 64 of the Act by the State Government or by the local authority. 12. On the other hand, the counsel for the respondent states that the "juvenile" contemplated under Sections 20 and 64 of the new Act is the "juvenile" as defined under the old Act and the provisions of the new Act cannot be extended to the petitioner who is not a juvenile under the old Act. 13. After considering the arguments of the parties and going through the scheme of the new Act, we find that the provisions of Section 20 have been enacted to apply provisions of the new Act to those persons who are juveniles under the new Act. 14. 13. After considering the arguments of the parties and going through the scheme of the new Act, we find that the provisions of Section 20 have been enacted to apply provisions of the new Act to those persons who are juveniles under the new Act. 14. Section 20 deals with "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. The argument of the respondent that the juvenile in the above said provisions is the juvenile as defined under the old Act, does not stand to reason, inasmuch as the proceedings against the juvenile under the old Act are to be continue in terms of Section 69(2) of the new Act corresponding to the provisions of the old Act. Such juveniles are necessarily to be dealt with in accordance with the provisions of the new Act. Similarly, there is no difficulty in respect of juveniles as defined under the new Act. Section 20 applies to all proceedings - pending in any court. The proceedings contemplated in the said clause means proceedings either at the stage of trial or appeal and pending in any court means either at the stage of trial or in court of appeal established under the common law. In fact, such a provision is not required to be enacted to provide continuity of the proceedings in respect of juveniles under the old Act as such proceedings have not been ordered to be abated, but are deemed to be done or taken under the corresponding provisions of the new Act. On the other hand, proceedings in respect of a juvenile pending in any court mean proceedings in respect of a juvenile under the new Act shall be keeping in view the objective of the new Act. The provisions to continue the proceedings in the court in which the same are pending is to provide continuity of trial and to avoid de-novo trial in respect of juveniles who are covered under the new Act, but against whom the proceedings are pending under the common law. 15. The provisions to continue the proceedings in the court in which the same are pending is to provide continuity of trial and to avoid de-novo trial in respect of juveniles who are covered under the new Act, but against whom the proceedings are pending under the common law. 15. Similarly, Section 64 of the Act even authorities the State Government or the local authority for sending a juvenile in conflict with law to be sent to a special home or to be kept in an institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of sentence as per the provisions of new Act. The purpose of the Act is clear that the person who is less than 18 years of age should be dealt with in accordance with convention of the rights of a child adopted by the United Nation on 20.11.1989 and ratified by the Government of India on 11.12.1992. The State has primary responsibility of ensuring that all basic needs of the children are met and all their rights are protected. The convention of the United Nation emphasises social re-integration of the child to the best possible extent without resorting to judicial proceedings. Since the provisions of the Act have been enacted relating to juveniles in conflict with law for protection and treatment by catering to their development needs and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children. Therefore, the provisions of the court (Code ?) are required to be interpreted keeping in view the intention of the legislature. The provisions of the law are meant for benefits to the children and are required to be interpreted liberally keeping in view the objective of the Act. Therefore, we hold that the juvenile under Sections 20 and 64 of the new Act are the juveniles under the new Act i.e. who are more than 16 years of age but have not completed 18th year of age on the date of commission of offence and required to be dealt with in accordance with the provisions of the said Act. 16. In terms of Section 20 of the Act, the petitioner who is juvenile under the new Act is required to be tried by the court of Sessions. 16. In terms of Section 20 of the Act, the petitioner who is juvenile under the new Act is required to be tried by the court of Sessions. If the court of Sessions finds that the juvenile has committed an offence, then, instead of passing any sentence, it shall forward the juvenile to the Board which shall pass orders in respect of the petitioner in accordance with the provisions of the new Act. 17. Since at the conclusion of the trial, even if the petitioner is convicted, the petitioner is to be forwarded to the Board constituted under Chapter II of the new Act, it is proper to release the petitioner on bail on furnishing bail bonds with sureties to the satisfaction of the Chief Judicial Magistrate, Kaithal. Order accordingly.