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2007 DIGILAW 1533 (BOM)

Vinod s/o Gulabrao Kinake v. State of Maharashtra

2007-10-22

B.P.DHARMADHIKARI, D.D.SINHA

body2007
JUDGMENT D.D.SINHA, J. : Heard Shri Badar, learned Counsel for appellant Vinod in Criminal Appeal No.317/2004, and Shri Deopujari, learned Additional Public Prosecutor for the respondent State. 2. Criminal Appeal No. 317/2004 is filed by appellant Vinod against the judgment and order dated 3/2/2004 passed by the Ad hoc Additional Sessions Judge, Pusad in Sessions Trial No. 90/2000 whereby appellant Vinod is convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/- and in default, to suffer simple imprisonment for one month. Similarly, appellant Vinod is also convicted for the offence punishable under Section 201 of Indian Penal Code and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.100/- and in default, to suffer simple imprisonment for one month. 3. The State has preferred Criminal Appeal No. 337/2004 against the judgment and order of acquittal, dated 3.2.2004 passed by the trial Court in respect of original accused no.2 Girish alias Munna Giri for the offences punishable under Sections 302 and 201 of Indian Penal Code. However, original accused no.2 Girish alias Munna Giri died on 12.1.2006 and, therefore, the said appeal stands abated. Similarly, Criminal Revision Application No. 82/2004 is filed by the original complainant against the judgment and order of acquittal dated 3/2/2004 passed by the trial Court in respect of original accused no.2 Girish alias Munna Giri. However, due to demise of original accused no.2, State appeal stands abated. Consequently, criminal revision application filed by the complainant also stands abated. 4. Shri Badar, learned Counsel for appellant Vinod, submitted that appellant Vinod on the date of incident, i.e. 30/3/2000 was a juvenile and, therefore, was entitled to get protection and benefits of the Juvenile Justice (Care and Protection of Children. Act, 2000 (hereinafter referred to as the said Act for short.. It was contended that the trial Court though recorded a finding in the impugned judgment that on the date of incident, age of appellant Vinod was more than sixteen years, but less than eighteen years, however, did not extend the benefits of the provisions of the said Act to him since the said Act came into force on 1.4.2001 and assent of the President of India was received on 30.12.2000. The learned Counsel submitted that the said finding recorded by the trial Court is unsustainable in law in view of decision of the Apex Court in the case of Upendra Kumar v. State of Bihar (2005 SCC (Cri. 778. and Amit Singh alias Chintu and another v. State of U.P. (2006 (9. SCC 522.. It was contended that in view of law laid down by the Apex Court in the above referred judgments, the sentence of appellant Vinod cannot be sustained in law and is liable to be set aside. 5. Before we deal with the issue, we would like to express that the said Act aims at grant of care, protection and rehabilitation of juvenile vis-a-vis adult criminals and, therefore, the objective to be achieved by evolving such legislation is to promote well being of the juvenile. Similarly, term juvenile must be given a definite connotation. A person cannot be a juvenile for one purpose and adult for the another and it is well settled that having regard to the constitutional and statutory scheme, it was not necessary for the Parliament to specifically state that the age of juvenile must be determined as on the date of commission of offence. On the other hand, this is inbuilt in the statutory scheme provided under the legislation itself. It is also well settled that the statute must be construed having regard to the purpose for which such statute is evolved keeping in view the object to be achieved by such legislation or statute. 6. In the instant case, question which arises for our consideration is - whether the provisions of the Juvenile Justice (Care and Protection of Children. Act, 2000 are applicable in the case of appellant Vinod, who on the date of incident, was above sixteen years of age, but below eighteen years and whether he is entitled to get the benefit of the same ? In the case of Upendra Kumar (cited supra., appeal was filed in the Supreme Court against the judgment of the High Court dated 17.5.2002 whereby criminal appeal filed by the appellant challenging his conviction and sentence for the offence punishable under Section 302 of Indian Penal Code was dismissed. In the case of Upendra Kumar (cited supra., appeal was filed in the Supreme Court against the judgment of the High Court dated 17.5.2002 whereby criminal appeal filed by the appellant challenging his conviction and sentence for the offence punishable under Section 302 of Indian Penal Code was dismissed. In the said appeal, appellant had not challenged his conviction, but prayed for grant of benefits of the said Act since he was a juvenile on the date of occurrence as well as on the date on which he was produced before the Court. The Apex Court after taking into consideration the provisions of Sections 15, 16 and 20 of the said Act has observed in para (5. of its judgment, which reads thus : 5. The course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Session as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith, if not required in any other case. In the aforesaid judgment, the Apex Court relied on its decisions in the case of Gopinath Ghosh v. State of W.B. (1984 Supp SCC 228. and Bhola Bhagat v. State of Bihar (1997 (8. SCC 720.. 7. So far as decision of the Apex Court in the case of Amit Singh (cited supra. is concerned, two appeals were preferred not against the convictions for the offences under the Indian Penal Code, but on the question of sentence. In the said case, it was argued before the Apex Court that the Juvenile Justice Act, 2000 came into force from 1.4.2001 and the incident in question had taken place on 12.11.2001, i.e. after the said Act came into force. In the said case, it was not disputed before the Apex Court that the particular appellants were below the age of eighteen years on the date of occurrence. In the said case, it was not disputed before the Apex Court that the particular appellants were below the age of eighteen years on the date of occurrence. In that background, the Apex Court has observed thus : Section 20 of the Act deals with pending appeals on the date of the Act coming into force and mandates that the trial or appeal may be continued as if the Act had not been passed and in case the juvenile is found to have committed an offence, the Court shall, after recording its finding, forward the juvenile to the Board, instead of passing a sentence. The Board is, thereafter, obliged to pass orders in respect of such a juvenile in accordance with the provisions of the Act as if it had been satisfied on inquiry under the Act that the juvenile had committed the offence. In the facts and circumstances of the case, we consider it in the interest of justice to direct that the same procedure be followed in the case of the appellants, as prescribed for pending trials and appeals under Section 20 of the Act. The Apex Court, therefore, finally concluded the issue by observing in paras (7. and (8. of its judgment, which reads thus : 7. In the instant case, the occurrence took place in District Kannauj which falls under the jurisdiction of the Juvenile Justice Board, Farrukhabad. We, therefore, remit the appeals to the aforesaid Board with a direction that the Board shall pass appropriate orders under the Juvenile Justice (Care and Protection of Children. Act, 2000 as if it has been satisfied on inquiry under the Act that the appellants had committed the offences. 8. The sentences passed against the appellants are set aside, subject to such orders as may be passed by the Juvenile Justice Board, Farrukhabad. These appeals be treated as disposed of. 8. In view of law laid down by the Apex Court in the cases referred to hereinabove, it is evident that the field covered by the said Act includes a situation leading to juvenile delinquency vis-avis commission of offence and, therefore, the date when the delinquency took place would be the relevant date. It is, therefore, implicitly clear that relevant date for determining the age of juvenile would be one on which offence had been committed and not when juvenile is produced in the Court. It is, therefore, implicitly clear that relevant date for determining the age of juvenile would be one on which offence had been committed and not when juvenile is produced in the Court. The observations of the Constitutional Bench of the Apex Court in para (98. of its judgment in the case of Pratap Singh v. State of Jharkhand and another {(2005 ALL MR (Cri. 2258 (SC.} are relevant, which read thus : 98. Section 20 of the Act of 2000 would, therefore, be applicable when a person is below the age of 18 years as on 1.4.2001. For the purpose of attracting S. 20 of the Act, it must be established that : (i. on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii. on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute, but only a limited one. It would apply strictly when the conditions precedent therefor as contained in S. 20 or S. 64 are fulfilled. The said provisions repeatedly refer to the words `juvenile' or `delinquent juveniles' specifically. This appears to be the object of the Act and for ascertaining the true intent of the Parliament, the rule of purposive construction must be adopted. The purpose of the Act would stand defeated if a child continues to be in the company of an adult. Thus, the Act of 2000 intends to give the protection only to a juvenile within the meaning of the said Act and not an adult. In other words, although it would apply to a person who is still a juvenile having not attained the age of 18 years, but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence, but has since ceased to be a juvenile. Similarly, the observations of the Constitutional Bench of the Apex Court in para (99. Similarly, the observations of the Constitutional Bench of the Apex Court in para (99. of its judgment in the above referred case are relevant, which read thus : The embargo of giving a retrospective effect to a statute arises only when it takes away vested right of a person. By reasons of S. 20 of the Act, no vested right in a person has been taken away, but thereby only an additional protection has been provided to a juvenile. 9. In the instant case, appellant Vinod though was above the age of sixteen years on the date of occurrence, i.e. 30/3/2000, however, below the age of eighteen years as on 1.4.2001 when the said Act came into force whereby the Juvenile Justice Act, 1986 stood repealed and, therefore, in view of law laid down by the Apex Court, we are of the view that the finding recorded by the trial Court that appellant Vinod was not entitled to get the benefit of the provisions of said Act is wholly unsustainable in law. We answer the question in affirmative. 10. In the circumstances, conviction of appellant Vinod for the offences punishable under Sections 302 and 201 of Indian Penal Code, for which he has been found guilty by the trial Court, is confirmed. However, the sentence awarded by the trial Court including imposition of fine is set aside. It is brought to the notice of this Court that appellant Vinod is already in Jail for more than seven years and, therefore, in our view, it will not be expedient, in the facts and circumstances of the present case, to once again remit the matter to the Juvenile Justice Board in view of Section 20 of the said Act. Therefore, appellant Vinod is directed to be released forthwith, if not required in any other criminal case and the amount of fine, if already paid, be refunded to him. Criminal Appeal No.317/2004 is disposed of accordingly. Criminal Appeal No. 337/2004 and Criminal Revision Application No. 82/2004 are disposed of as abated.