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2004 DIGILAW 767 (MP)

Sher Zamir v. State of Madhya Pradesh

2004-09-14

S.L.KOCHAR

body2004
Judgment ( 1. ) THIS revision is directed against the order dated 20-4-2004 passed by the learned Special Judge (NDPS Act), Mandsaur in Special Case No. 90/1999. ( 2. ) LEARNED Counsel for the applicant has submitted that on the date of incident, i. e. , 31-5-99, the applicant Sher Zamir was below 18 years of age. Therefore, he should have been tried by the learned Juvenile Court. This point was raised by the applicant before the learned Special Judge (NDPS Act), Mandsaur who has decided this issue and according to the learned Judge, charge-sheet was filed on 11-8-99. On that day, the applicant was above 18 years of age. Therefore, he would not fall within the definition of juvenile. On this analogy, the learned Trial Court dismissed the application. ( 3. ) HAVING heard learned Counsel for the parties and after perusing the impugned order, certificates filed by the applicant and the provisions of the Act, this Court is of the view that the applicant would not get benefit of Juvenile Justice Act, 2000 (for short act 2000), which came into force on 1-4-2001, because the incident had occurred on 31-5-1999. The applicant was arrested on 31-5-1999 at 7. 00 P. M. and he must have been produced before the competent authority on 1-6-1999 because, the police can not keep the accused in its custody for more than 24 hours from the date and time of his arrest. So, on 1-6-1999 also the applicant was above 16 years of age, i. e. , he was aged 17 years, 10 months and 28 days according to his own school certificate and on that day the Act 2000 did not come into force and the case of the applicant was to be dealt with as per provision under Juvenile Justice Act, 1986 (for short the Act 1986), which prescribes the age of juvenile as 16 years. ( 4. ) IT is a matter of consideration before this Court that as to how the learned Special Judge has taken into consideration the date of filing of charge-sheet, i. e. , 11-9-99. Neither this is mentioned anywhere in any provision of the Act of 1986 nor in the Act of 2000. On 1-4-2001, the date of coming in to force of the Act of 2000, the applicant was 19 years, 8 months and 28 days old. Neither this is mentioned anywhere in any provision of the Act of 1986 nor in the Act of 2000. On 1-4-2001, the date of coming in to force of the Act of 2000, the applicant was 19 years, 8 months and 28 days old. Therefore, on that day also, he is not juvenile within the definition of juvenile as defined in Section 2 (k) of the Act, 2000. The applicant is also not eligible to get benefit of Section 20 of the Act, 2000 which reads as under: "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. " ( 5. ) ACCORDING to Section 2 (K) of the Act 2000, juvenile or child means a person, who has not completed eighteenth year of age. ( 6. ) SECTION 20 deals with the pending cases when the Act of 2000 came into force. On that day, the applicant was above eighteen years of age. ( 7. ) THE Supreme Court has considered the question of determination of age of the juvenile in the case of Arnit Das v. State of Bihar [ (2000) 5 SCC 488 ]. Honble Mr. Justice R. C. Lahoti as He then was (now Chief Justice of India), delivered the judgment of the Court after detailed discussion on the issue held that "crucial date for determining the question whether a person is a juvenile is the date when he is brought before the competent authority. Honble Mr. Justice R. C. Lahoti as He then was (now Chief Justice of India), delivered the judgment of the Court after detailed discussion on the issue held that "crucial date for determining the question whether a person is a juvenile is the date when he is brought before the competent authority. " This question was decided in the context of Act of 1986 and the same could be applied for consideration of determination of age of juvenile in the Act of 2000 because there is no difference in the definition of juvenile except increase of the age from 16 years to 18 years. ( 8. ) THE Supreme Court in the case of Khunnu Yadav v. Rajesh Maurya and Anr. [ (2003) 10 SCC 291 ] again considered this point and in this case the date of incident was 17-4-1988. The 1st respondent was arrested on 21-4-1998 and claimed that he was a juvenile as he did not attain the age of 16 years on the date of occurrence. The Trial court got the 1st respondent examined medically and that report showed that he was aged 19 years and, therefore, he was not treated as a juvenile. But, when he filed the revision in the High Court, a certificate from the School had been produced, which showed that his date of birth is 2-8-1982. Basing on such certificate, the High Court declared him to be juvenile and to be dealt with as such. ( 9. ) THE matter went up before the Supreme Court and the Supreme Court decided this case on the basis of ratio decidendi in the case of Arnit Das (supra) and held that the first respondent moved the application for determination of his status on 30-1-1999 and by that time, he had already attained the age of 16 years. In this case of Khunnu Yadav (supra) the Supreme Court has considered that the first respondent moved the application for determination of his status on 30-1-1999 and by that time he had already attained the age of 16 years and set aside the order passed by the High Court declaring the accused juvenile. In this case the Supreme Court has placed reliance on the judgment passed in Arnit Das v. State of Bihar (supra ). ( 10. In this case the Supreme Court has placed reliance on the judgment passed in Arnit Das v. State of Bihar (supra ). ( 10. ) THE review petition was filed by Arnit Das and the same went up for consideration before the Constitutional Bench of Supreme Court and the Supreme Court has not decided the question of crucial date for determining the age of the accused as juvenile holding in Paras 6 and 7 that: "6. It is settled practice that this Court does not decide matters which are only of academic interest on the facts of a particular case. (Sec with an advantage : Sanjeev Coke Mft. Co. v. Bharat Coking Coal Ltd. ; R. S. Nayak v. A. R. Antulay and Dhartipakar Madan Lal Agrawal v. Rajiv Gandhi ). 7. In this view of the matter, we find that the issue referred to the Constitution Bench does not require our consideration in this case. The review petition, which itself has been referred to the Constitution Bench, is accordingly dismissed. " [ (2001) 7 SCC 657 ]. ( 11. ) IN view of the aforementioned Supreme Court decision rendered in the case of Arnit Das v. State of Bihar, (2001) 7 SCC 657 (ibid) still holds the field that date of determination of age of the accused would be taken into consideration when the juvenile is available to the law administration and justice delivery system/brought before the Court of law. ( 12. ) THOUGH the learned Trial Court has dismissed the application of the applicant not declaring him juvenile, but incorrectly considered the date of filing of charge-sheet for determination of the status of the applicant. ( 13. ) IN view of the above legal and factual discussion, there is no substance in the revision filed by the applicant. It is accordingly dismissed. The applicant shall be tried by the Special Judge (NDPS Act), Mandsaur. Copy of this order be sent to the Trial Court immediately for compliance.