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2002 DIGILAW 784 (PAT)

Pankaj Kumar v. State Of Bihar

2002-07-23

SHIVA KIRTI SINGH

body2002
Judgment Shiva Kirti Singh, J. 1. This criminal revision application has been preferred by informant of Sheikhpura P.S. Case No. 148 of 1999 registered under Sec. 302 and other allied sections of the Indian Penal Code as well as Sec. 27 of the Arms Act. 2. Petitioner is aggrieved by and has challenged the order dated 11-3-2002 passed by learned Additional District and Sessions Judge IX Munger in a criminal appeal bearing No. 204 of 2001 whereby the appeal preferred by opposite party No.2 one of the accused seeking a declaration that he is a juvenile was allowed after reversing the order dated 19-10-2001 passed by learned A.C.J.M. Sheikhpura (Juvenile Court). 3. The relevant facts for deciding the present controversy may be noticed in brief. Opposite party No.2 being one of the named accused for an alleged occurrence of 18-5-1999 under Sec. 302 and other sections of the Indian Penal Code surrendered before the Court of learned Additional Chief Judicial Magistrate on 5-8-1999. Instead of determining the age of the opposite party No.2 on surrender the learned Additional Chief Justice Magistrate remanded opposite party No.2 to custody as the accused did not plead for declaring himself a juvenile. It further appears that in an application for bail before this Court opposite party No.2 claimed to be a minor at the time of the alleged occurrence. In view of such a plea he was given liberty to appear the competent authority so that an enquiry may be held to determine his age for finding out whether he was a juvenile or not. It further appears that pursuant to such liberty opposite party No.2 was again produced before the Juvenile Court on 28-4-2000. After due enquiry the learned Additional Chief Judicial Magistrate came to a definite finding that opposite party No.2 was born on 5-2-1982. Thereafter following the judgment of the Apex Court in the case of Arnit Das V/s. State of Bihar, he held that on the date of appearance for the purpose of enquiry, i.e. on 28-42000 the accused was not a juvenile. In appeal the learned Sessions Court affirmed the finding regarding date of birth but on the basis of records it held that the date of first appearance of the accused before the A.C.J.M., the competent authority was 5-8-1999 when the accused had first surrendered. In appeal the learned Sessions Court affirmed the finding regarding date of birth but on the basis of records it held that the date of first appearance of the accused before the A.C.J.M., the competent authority was 5-8-1999 when the accused had first surrendered. Thereafter, the appellate Court applied the definition of juvenile as given in Juvenile Justice (Care and Protection of Children). Act, 2000 (hereinafter referred to as the Act of 2000) and concluded that since the accused, opposite party No.2 on 5-8-1999 was less than 18 years of age hence he was entitled to be treated and dealt with as a Juvenile with regard to Sheikhpura P.S. Case No. 148/1999. 4. On behalf of petitioner/informant it was submitted that there is no error so far as finding regarding birth of opposite party No.2 is concerned but both the Courts below committed an error of law in not noticing the fact that the Act of 2000 came into force only on 1st of April, 2001 and on that date opposite party No.2 was already more than 18 years of age. It was further submitted on behalf of the petitioner that the case of the accused must be decided as per provisions of Juvenile Justice Act. 1986 (hereinafter referred to as the Act of 1986) in which a male accused is not qualified to be treated as a Juvenile if he was more than 16 years of age. It was further submitted that the relevant date for determination of age and for giving a finding as to juvenility of the accused must be the date of the alleged occurrence as held by a Bench of three Judges of the Supreme Court in the case of Umesh Chandra V/s. State of Rajasthan. In other words, according to learned Counsel for the petitioner the law laid down by the Apex Court in the case of Arnit Das (supra) by a Bench of two Judges is in conflict with the law laid down in the earlier case of Umesh Chandra and that also without noticing the earlier judgment of three Judges and hence the earlier judgment of a Larger Bench in the case of Umesh Chandra (supra) should be followed and age of the accused should be reckoned with reference to the date of commission of offence. 5. 5. On the other hand, learned Counsel for opposite party No.2 submitted that the Act of 2000 is in force since 1st of April, 2001 and therefore, the competent Court while deciding the matter of juvenility on 28-4-2000 has to be guided by the provisions of this Act and not by the provisions of the Act of 1986 which stood repealed. According to learned Counsel for the opposite party No.2 even if the age of the accused is to be reckoned with reference to the date of the offence, as per the Act of 2000 the accused was less than 18 years of age on 18-5-1999 and hence as per Sec. 2(k) of the Act of 2000 the accused would be a juvenile. Thus, the submission on behalf of opposite party No.2 is that the accused must be given the benefit of enhanced age of 18 years because the enquiry under the Act of 1986 was not completed when Act of 2000 came into force and the old Act was repealed. On behalf of opposite party No.2 reliance was placed upon Secs. 14, 18 and 20 and upon Rule 62(3) of the Model Rules which have been drafted for the guidance of State Government who have been vested with rule making powers under Sec. 68 of the Act 2000, in support of the aforesaid proposition. 6. On a careful consideration of the relevant facts and the provisions of the Act of 1986 and of 2000, this Court finds that Sec. 21 of the Old Act and Sec. 15 of the Act of 2000 clearly indicate that if on enquiry the competent authority is satisfied the "Juvenile has committed an offence", then notwithstanding the provisions in any other law the provisions of the Juvenile Justice Act have to be applied. Of course, a determination of age by the competent authority has to be only on appearance of the accused before such authority but as held in the case of Umesh Chandra the purpose of the Act being protection of certain minors who commit criminal offences will be better served by reckoning the relevant age with reference to the date of commission of offence. Even if, for some reason accused who was a juvenile on the date of occurrence appears before the competent authority belatedly, it would not be just and proper to deny the benefits of such social legislation only because of late production or late appearance of the accused when offence is found to have been committed by a juvenile. The judgment in the case of Umesh Chandra being by a larger Bench has to be held as binding in preference to later judgment in the case of Arnit Das because in the later case a conflicting view has been taken without any consideration of the earlier judgment by a larger Bench. This course of reasoning is in accordance with law of precedents laid down by the Apex Court in several judgments such as in the case of Commissioner of Income-Tax, Bihar V/s. Trilok Nath Mehrotra. 7. Once the aforesaid conclusion is reached and the date of commission of offence is found to be the crucial date then there is no difficulty in further holding that on the date of alleged occurrence the Act of 1986 was in force whereunder a male accused above the age of 16 years could not be treated a juvenile. Hence, the appellate Court clearly committed an error of law in holding opposite party No.2 to be a juvenile on the basis of Act of 2000 which was not in force on the date of the occurrence. 8. The contention raised on behalf of opposite party No.2 that simply because the enquiry could not be concluded till 1-4-2001 hence the Act of 2000 will become applicable even with regard to an occurrence of the year 1999 deserves to be noticed only to be rejected. Sec. 26 of the Old Act of 1986 is similar to Sec. 20 of the Act of 2000. Such provisions were noticed in paragraph 26 of Apex Court judgment in the case of Umesh Chandra (supra). As per Sec. 3 in both the Acts, once an enquiry has been initiated against a juvenile then enquiry has to be continued and orders have to be made in respect of such person as if, he continued to be a juvenile even if, in fact, he ceased to be a so. As per Sec. 3 in both the Acts, once an enquiry has been initiated against a juvenile then enquiry has to be continued and orders have to be made in respect of such person as if, he continued to be a juvenile even if, in fact, he ceased to be a so. Sec. 20 of the Act of 2000 contains special provisions in respect of pending matters whereunder all proceedings in respect of a juvenile pending on the date of coming into force of this Act shall be continued as if this Act has not been passed and if the Court finds that a juvenile has committed an offence then sentencing will be done by the Board in accordance with the provisions of this Act. This provision is a complete answer to the submissions advanced on behalf of opposite party No.2. Till the competent authority in a pending proceeding comes to finding with reference to the date of occurrence that a juvenile has allegedly committed an offence the provisions - of the Act of 2000 have to be treated as not applicable. The continuation of proceedings pending under Act of 1986 is further saved by Sec. 69(2) of the Act of 2000. 9. In the result, this Court finds that the impugned order passed by the Court of appeal below giving benefit to opposite party No. 2 of being a juvenile under the Provisions of Act of 2000 is erroneous and against law. It is found that he cannot be treated as a Juvenile under the Act of 1986 and the Act of 2000 is not at all applicable in this case. The impugned order dated 11-3-2002 is, therefore, set aside and this revision application is, accordingly allowed. 10. In the facts and circumstances of the case, there shall be no order as to costs.