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2009 DIGILAW 1317 (HP)

State Of H. P. v. Dina Nath

2009-12-18

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT : Surjit Singh, J. Heard and gone through the record. 1. Respondent Dina Nath was more than 16 years of age, but less than 18 years of age on 15th June, 1990, when he committed an offence of rape under Section 376 of the Indian Penal Code. Trial Court vide judgment dated 31st August, 1992 acquitted him. State appealed to this Court against the judgment of acquittal, passed by the trial Court. This Court, vide judgment dated 6th November, 2007 accepted the appeal of the State, set aside the judgment of the trial Court and convicted the respondent. This Court also sentenced the respondent to undergo rigorous imprisonment for ten years and to pay fine of Rs. 20,000/-, in default of payment to undergo rigorous imprisonment for a further period of one year. 2. Respondent went in appeal to the Hon'ble Supreme Court. It was argued before the Hon'ble Supreme Court that the respondent was minor on the date of commission of the crime and, therefore, he could not have been sentenced for the offence of rape. Hon'ble Supreme Court taking into consideration the aforesaid argument disposed of the appeal with the order that the trial Court shall determine whether the respondent was minor on the date of commission of the offence and set aside the judgment of this Court. At the same time, the Hon'ble Supreme Court ordered that the respondent would remain in jail till the question of his minority was determined by the trial Court. While concluding the judgment, the Hon'ble Supreme Court observed that the impugned judgment (i.e. judgment of this Court dated 6th November, 2007) was being set aside only for the purpose of adjudicating the plea raised by the respondent that he was minor at the time of commission of the offence, meaning thereby that the Hon'ble Supreme Court did not interfere with the conviction of the respondent and left it open to be decided by this Court whether the sentence was to be passed or not, keeping in view the finding of the trial Court as to the status of the respondent as regards his being major or minor. 3. Learned trial Court has given the finding that the respondent was below 18 years of age at the time of commission of the crime. 3. Learned trial Court has given the finding that the respondent was below 18 years of age at the time of commission of the crime. It has been submitted on behalf of the State that when this Court pronounced the judgment setting aside the judgment of acquittal passed by the trial Court and convicting the respondent, he was more than 18 years of age and, therefore, the sentence awarded by this Court is required to be maintained in view of law laid down by the Hon'ble Supreme Court in Pratap Singh v. State of Jharkhand and another, (2005) 3 SCC 551 . 4. In Pratap Singh's case supra interpreting the provisions of Section 20 read with Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which are reproduced herein below, the Hon'ble Supreme Court held that the provision of Section 20 was attracted only if the juvenile continued to be juvenile on the date of enforcement of the aforesaid Act of 2000, which is 30.12.2000: "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 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 office: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile." "Section 2(k) "juvenile" or "child" means a person who has not completed eighteenth year of age". 5. 5. Learned counsel for the respondent submits that after the pronouncement of the aforesaid judgment by the Hon'ble Supreme Court in Pratap Singh's case supra, the legislature has amended the Juvenile Justice (Care and Protection of Children) Act, 2000 with a view to neutralising the aforesaid judgment in Pratap Singh's case supra and the benefit of Section 20 has been extended to every person who was juvenile within the meaning of Section 2(k) of the Act of 2000 on the date of commission of the crime, irrespective of the fact whether the crime was committed prior to the date of commencement of Act of 2000 or subsequent thereto. He submits that the legislature has brought about the change, by means of Section 7-A and adding an explanation to Section 20 of the original Act, which are reproduced below:- "7-A Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under subsection (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect." Explanation to Section 20: "Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of Clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." The aforesaid amendments have been carried out by Act No.33 of 2006. 6. A combined reading of the judgment of the Hon'ble Supreme Court in Pratap Singh's case supra and the subsequent amendments in the Act, shows that by incorporation of Section 7-A and addition of explanation to Section 20, the legislature has neutralised the observation of the Hon'ble Supreme Court with regard to the applicability of Section 20 of the Act and has clarified that the benefit of Section 20 is available to every person, who was juvenile on the date of the commission of the crime, even if that date happened to be prior to the coming into force of Act of 2000 and also irrespective of the fact whether the juvenile on the date of his conviction (but after the enforcement of Act of 2000) had crossed the age of 18 years. 7. We are of the considered view that the respondent is required to be treated as juvenile within the meaning of Act of 2000. Hon'ble Supreme Court in Babban Rai and Another v. State of Bihar, (2007)13 SCC 88 has held that where a juvenile has attained majority on the date when he is convicted, it would be just and expedient to set aside his sentence and pass an order of releasing him as he cannot be sent to remand home. 8. Hon'ble Supreme Court in Babban Rai and Another v. State of Bihar, (2007)13 SCC 88 has held that where a juvenile has attained majority on the date when he is convicted, it would be just and expedient to set aside his sentence and pass an order of releasing him as he cannot be sent to remand home. 8. In view of the above stated position, we order that the respondent, who is in jail serving the sentence awarded by this Court vide order dated 22nd November, 2007, which sentence becomes ineffective on account of above stated position, be set free, forthwith, in case his detention is not required in any other case.