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2003 DIGILAW 265 (RAJ)

Murari v. State of Rajasthan

2003-02-19

K.C.SHARMA, Y.R.MEENA

body2003
JUDGMENT 1. - Heard learned Counsel for the parties. 2. Mr. Biri Singh, learned Counsel for the accused appellant submits that accused was below 18 years of age at the time of commission of offence and now he is in Central Jail, Bharatpur, therefore, he is entitled for bail being juvenile and now he crossed the age of 18 years. 3. He drew our attention to Sections 12, 16 and 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter, referred as "the Act, 2000"). He also brought to our notice the decision of this Court in case of Bajrang Lal v. State of Rajasthan, 2002 (3) RCC 1616 , and the decisions of the Apex Court in case of Gopinath Ghosh v. State of West Bengal, 1984 (Supp.) SCC 228 ; Jayendra and Anr v. State of Uttar Pradesh, 1981 SCC (Cri.) 809 ; Bhoop Ram v. State of U.P., 1989 (3) SCC 1 ; and Pradeep Kumar v. State of U.P., 1995 SCC (Cri.) 395 . 4. The facts are not in dispute that accused applicant was below 18 years of age on the date of commission of offence. 5. Clause (k) of Sub-section (2) of the Act, 2000 provides the definition of "juvenile". "Juvenile" or "child" means a person who has not completed eighteenth year of age. 6. Admittedly the accused applicant was below 18 years of age on the date of commission of offence. Section 12 of the Act, 2000 provides that when any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or exposed him to moral, physical or psychological danger or that his release would defeat the ends of justice. 7. No material is there on record to support that the conditions referred above in Section 12 which disentitle the accused applicant from granting bail is available against this accused. 8. 7. No material is there on record to support that the conditions referred above in Section 12 which disentitle the accused applicant from granting bail is available against this accused. 8. The provisions of Section 16 of the Act, 2000 provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing surety. 9. The provisions of Section 20 further provide that notwithstanding anything contained in this Act, all proceedings in respect of 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 it had been satisfied on inquiry under this Act that a juvenile has committed the offence. 10. There is no dispute that the sentence has not been passed by the Board but by the Sessions Court. 11. In case of Jayendra and Another v. State of Uttar Pradesh (supra), in para 3, Their Lordships observed as under : "No Court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 29 provides, insofar as it is material, that if a child is found to have committed an offence punishable with imprisonment, the Court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so." 12. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so." 12. As the accused at the time of commission of offence was below 16 years of age and he was about 23 years of age at the time of decision of Their Lordships, Their Lordships ordered for his release and even the sentence was quashed. 13. In case of Pradeep Kumar v. State of U.P. (supra), the accused was about 15 years of age at the time of commission of offence and while the matter was considered by Their Lordships, he was around 30 years of age, the sentence awarded to him was quashed and he was ordered for release. The relevant observation is in pars 4 which reads as under; "Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentence awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms." 14. In case of Bhoop Ram v. State of U.P. (supra), as the accused was below 16 years of age at the time of commission of offence. Their Lordships have considered the provision of Sub- section (4) of Section 2 of the U.P. Children Act, 1951 and at the time when the case of the accused appellant was considered by Their Lordships, the accused was about 28 years of age, Their Lordships ordered for his release. The conviction was sustained but sentence was quashed. The relevant observation in para 8 reads as under : "Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. The conviction was sustained but sentence was quashed. The relevant observation in para 8 reads as under : "Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith." 15. In case of Bajrang Lal v. State of Rajasthan (supra), this Court has also considered the issue if the accused is below 15 years of age, can he be sentenced to prison and if he crossed the age of 36 years at the time of consideration in appeal before this Court, whether he should send to the special school. 16. This Court held no other option except to quash the sentence awarded to the accused applicant. In para 10, this Court observed as under : "He could not have been convicted in view of Section 22 of the Act and could only be forwarded to special school, as the notification was made applicable in Jhunjhunu District w.e.f. November 14,1981 and on that day the appeal was pending. The provisions contained in Section 26 of the 1970 Act can be made applicable and the appellant cannot be sentenced to suffer imprisonment. Since more than 21 years have lapsed and the appellant has already crossed 36 years of his age. The appellant cannot be forwarded to special school now. Thus, we are left with no other option except to quash the sentence awarded to the appellant." 17. The accused was on bail and it was ordered that he need not surrender to his bail bonds. 18. The appellant cannot be forwarded to special school now. Thus, we are left with no other option except to quash the sentence awarded to the appellant." 17. The accused was on bail and it was ordered that he need not surrender to his bail bonds. 18. The fact that accused was below 18 years of age at the time of commission of offence has not been controverted by the learned Public Prosecutor, and now he has crossed 18 years of age, without expressing any opinion on the merits and on the facts and circumstances of this case, we are inclined to suspend the sentence of accused applicant Murari son of Bajranga. 19. It is, therefore, ordered that the execution of sentence of accused applicant Murari son of Bajranga shall remain suspended till disposal of the appeal and he be released on bail, provided he furnishes a personal bond in the sum of र 40,000/- (Rs. forty thousand) with two sureties of र 20,000/- each, to the satisfaction of the Trial Court to the effect that he will appear before this Court on 25.3.2003 and as and when called upon to do so.Ordered accordingly. *******