JUDGMENT Kishore Kumar Prasad, J. 1. Pursuant to the judgment and order passed by us on 12.05.2008 affirming the conviction of the four appellants for the offence punishable under section 302 read with section 34 of IPC, this appeal was kept part-heard as regards the sentence against the two appellants namely Tapan Panchal and Swapan Panchal who claimed themselves as juvenile on the date of incident that is on 10th July, 1990 by filing an application before this Court. 2. By order dated 12.05.2008, a report was called from the learned Trial Court in relation to the age of these two appellants on the date of occurrence after giving opportunity to the parties to adduce evidence in accordance with law. Liberty was also given to the learned Trial Court to refer these two appellants to the Medical Board or the Civil Surgeon as the case may be for obtaining creditworthy evidence about their age. 3. In terms of the said order, an inquiry was conducted by the learned Trial Court and the learned Trial Court after considering the evidence both oral and documentary coupled with age of estimation report of the Medical Superintendent cum-Vice Principal, I.P.G.M.E.R., SSKM Hospital, Kolkata, passed an order on 31.10.2008 according to which these two appellants were below 18 years of age on the date of occurrence that is on 10th July, 1990. 4. What is, now, of paramount importance to note is that even if the materials placed in the learned Court below by these two appellants in order to show that they were juvenile at the time of occurrence, are taken to be true and correct, what clearly transpires that when the occurrence had taken place, both were above the age of 16 years but below the age of 18 years. When these two appellants were above the age of 16 years on the date of commission of the offence, could they have been treated as juvenile and given the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000, is the question, which needs to be, now, determined. 5. What may be noted, while considering the above aspect of the case is that in Arnit Das vs. State of Bihar, reported in 2000(5) SCC 488 : 2000 Cr. 5. What may be noted, while considering the above aspect of the case is that in Arnit Das vs. State of Bihar, reported in 2000(5) SCC 488 : 2000 Cr. LJ 2971, the Apex Court held that for the purpose of determining as to whether a person shall be treated as juvenile or not, his age has to be reckoned on the basis of the date of the production before the Court and not on the date of the commission of offence. As against the view, so expressed in Arnit Das (supra), the Apex Court has held in Umesh Chandra vs. State of Rajasthan, reported in 1982(2) SCC 202 : 1982 Cr. LJ 994, that the question as to whether a person was, in law, a juvenile or not is a question, which has to be determined with reference to the date of commission of offence and not the date of production. The conflict of decisions, so emanating from the cases of Arnit Das (supra) and Umesh Chandra (supra), has been resolved by a Constitutional Bench in Pratap Singh vs. State of Jharkhand & Anr., reported in 2005(3) SCC 551 : 2005 Cr. LJ 3091. Having considered the scheme of the Juvenile Justice Act, 1986 (in short, 'the Act of 1986'), which stands repealed by the Act of 2000, w.e.f 01.04.2001, the Apex Court has in Pratap Singh (supra), clarified that the date relevant, for the purpose of determination of the question as to whether a person was or was not a juvenile, on the date of the commission of the offence and not the production of the accused before the Court. 6. However, we are required to consider that at the time of incident these two appellants were above the age of 16 years but below the age of 18 years on the date of occurrence and, therefore, in view of the change of law the matter should be referred to Juvenile Court or not. In this connection it is advantageous to refer to section 2, clause (h) of the Juvenile Justice Act, 1986 which reads as under: "Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;" 7. In this connection it is advantageous to refer to section 2, clause (h) of the Juvenile Justice Act, 1986 which reads as under: "Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;" 7. In the Juvenile Justice (Care and Protection of Children) Act, 2000 the relevant provision is clause (k) which reads as under: "Juvenile" or "child" means a person who has not completed eighteenth year of age;" 8. At this stage it is also relevant to note section 2(1) of the 2006 Act which defines "juvenile in conflict" with law as under: "Juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence." 9. The procedure to be followed when a claim of juvenility is raised before any Court is stipulated under section 7A which reads as under: "7A. 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 recognized 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 sub-section (1), it shall forward the juvenile to the Board of passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect." 10. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board of passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect." 10. Thus, if a claim of juvenility is raised, the Court has to make an inquiry and after determining the age if the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), the Court should forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect. 11. However, it is required to be noted that sub-section (1) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 was amended by section 4 of the Juvenile Justice (Care any Protection of Children) (Amendment) Act, 2006 (hereinafter referred to as the Amendment Act). Originally section 2(1) stipulated that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence. This sub-section was amended by the Amendment Act stating that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The legislature has thought it fit to stipulate that the age of the accused should be taken as on the date of the commission of such offence. Once it is proved that the accused is a juvenile as per the provisions of section 2(1), it is mandatory for the Court to forward the juvenile to the Board for passing appropriate orders. 12. Now we are also required to consider as to whether at this stage this Court can consider the question of referring the matter to the Board. 12. Now we are also required to consider as to whether at this stage this Court can consider the question of referring the matter to the Board. In this regard it is relevant to note that by section 14 of the Amendment Act, "Explanation" was inserted to section 20 of the principal Act which reads as under: "Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile cases 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." 13. Thus, even in the case of appeal, the determination of juvenility of a juvenile shall be in terms of section 2(1), even if the juvenile ceases to be so on or before the date of commencement of the said 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. 14. At this stage we may refer to the decision in the case of Upendra Kumar vs. State of Bihar, reported in 2005(3) SCC 592 : 2005 SCC (Cri) 778, wherein it is held that at that point of time the question of referring the accused to the juvenile Board does not arise and it was held that the conviction sustained and the sentence was quashed. 15. In the case of Pratap Singh vs. State of Jharkhand & Anr., reported in AIR 2005 SC 2731 : 2005(3) SCC 551 : 2005 Cr. LJ 3091, it is held that for the determination of age of juvenile, the reckoning date would be the date of the commission of the offence and not the date when the offender is produced before the competent authority or Court. It was further held that the 2000 Act would be applicable to those cases initiated and pending trial/ inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. It was further held that the 2000 Act would be applicable to those cases initiated and pending trial/ inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. It is also required to be noted that the Constitution Bench in this decision has also held that the provision of the 2000 Act is furthermore an remedial statute and it is required to be given a liberal construction. It would be advantageous to quote certain observations from the above judgment as under: "The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act". 16. Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non-obstante clause. The sentence "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 came into force" has great significance. The proceedings in respect of a juvenile pending in any Court referred to in section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any Court" would include even ordinary Criminal Courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in Criminal Courts. They would be pending a Criminal Courts only if the boy had crossed 16 years or the girl had crossed 18 years. The term "any Court" would include even ordinary Criminal Courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in Criminal Courts. They would be pending a Criminal Courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that section 20 refer to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has 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 shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. Such an interpretation does not offend Article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. 17. Thus, considering the relevant definitions and provisions, it is held that the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 01.04.2001." 18. In the case of Babban Rai & Anr. vs. State of Bihar, 2008 SCW 511, it is held by a Three-Judges Bench of the Hon'ble Apex Court that since the appellant has now attained majority, it would be just and expedient to set aside his sentence and passed an order of releasing him as he cannot be sent to remand home. 19. Learned Counsel on behalf of the State appellant tried to impress upon the Court that since the incident, in the instant case, was of the year 1982, the Act of 2000 would have no application, the accused has completed the age of 16 years on the date of incident and, therefore, the accused was not juvenile under 1986 Act. However, we are of the opinion that in view of the amendment of section 20 of the principal Act by inserting Explanation, the 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. However, we are of the opinion that in view of the amendment of section 20 of the principal Act by inserting Explanation, the 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 Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006, whereby Explanation was inserted to section 20, and clause (1) was substituted by amending: "Juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth years of age as on the date of commission of such offence. Therefore, we find no substance in the aforesaid sweeping contention of the learned Counsel for the State. 20. It is also relevant to note section 16 of the Act of 2000 which reads as under: "16. Order that may not be passed against juvenile.- (1) 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 imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security: Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. (2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit: Provided that the period of detention so ordered shall not exceed in any case the maximum period' provided under section 15 of the Act. 21. Thus, as per the above section no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life or be committed to prison in default of payment of fine or in default of' furnishing security. 22. It is also required to be noted that in the Statement of Objects and Reasons assigned while introducing the Juvenile Justice (Care and Protection of Children) Act, 2000, the intentions inter alia stated are (a) to clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law, (b) to remove doubts regarding the relevant date in determining the juvenility of a person and applicability of the Juvenile Justice Act; (c) exclusion of the local authority from the provision authorising them to discharge or transfer a child in need of care and protection or a juvenile from the children's home or special home or for sending a juvenile in conflict with law undergoing imprisonment, to a special home or a fit institution; (d) to have a procedure laid down where claim of juvenility is raised before any Court; (e) to have a minimum period of twenty-four hours, excluding the time necessary for the journey from the place where the juvenile in conflict with law was apprehended, within which he should be produced before the Board and a similar provision with regard to production of a child before the Child Welfare Committee and (f) to do away with the association of any police officer from the inquiry process, for the child in need of care and protection as the work is assigned to the Child Welfare Committee and to cover other cases where the child can remain in children/shelter home after completion of inquiry. 23. At this stage it is also profitable to note section 19 of the Act of 2000 which reads as under: "19. Removal of disqualification attaching to conviction.- (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Removal of disqualification attaching to conviction.- (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. (2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be." 24. By the aforesaid provision the Act has also tried to see that the stigma on a juvenile attaching to a conviction of an offence under the law is removed. 25. From the facts of the case and finding given by the learned Trial Court it clearly shows that at the time of the incident the age of these two appellants was above 16 years but below 18 years. 26. In view of the discussion hereinabove and keeping in mind the Amended Act and as per sections 20 and 2(1) of the Act, the age of the juvenile is determined as 18 years, and admittedly the present two appellants were above 16 years at the time of incident and below the age of 18 years. 27. Now, the question comes whether these two appellants are entitled to the benefit of Amended Act, especially sections 2(1) and 20 of the Act. As per section 2(1) of the Amended Act, the age is determined as 18 years at the time of this incident, which is made applicable to the pending appeal also inasmuch as the appeal is a continuous proceeding. Therefore, we are of the opinion that the appellants are entitled to the benefit of Amended Act. 28. The next question we are required to consider is whether the matter should be referred to Juvenile Court or not. In this regard, we are of the considered opinion that, as held in the case of Upendra Kumar and Babban Rai (supra) after a long time of more than 18 years it would not be appropriate to refer these two appellants to Juvenile Board. 29. In this regard, we are of the considered opinion that, as held in the case of Upendra Kumar and Babban Rai (supra) after a long time of more than 18 years it would not be appropriate to refer these two appellants to Juvenile Board. 29. In the premises we sustain their conviction for the offence punishable under section 302 read with section 34 of IPC for which they have been found guilty by us and at the same time we passed an order releasing them instead of awarding any sentence for the offence committed by them although they have been in judicial custody since 20.06.2002 that is more than three years, the maximum period provided under section 15(g) of the Act, 2006. Accordingly, the appeal preferred by these two appellants namely Tapan Panchal and Swapan Panchal is allowed to the aforesaid extent. They are directed to be released forthwith if their detention is not required in connection with any other case. This order shall be treated as part of the judgment and order passed by us on 12.05.2008. 30. Before we part with the judgment, we must observe that in the recent past, in this Court, contention about the age of the convicts and prayers claiming benefit under the relevant provisions of the Juvenile Justice (Care and Protection of Children Act) 2000, which came into force on 1st April, 2001, have repeatedly been raised for the first time in this Court. Ordinarily this Court would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, this Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of the statute. We are therefore, of the opinion that whenever a case is brought before Magistrate and/or Trial Court and the accused appears to be juvenile, the age of the accused on the date of occurrence should be ascertained before proceeding with the trial. This procedure, if properly followed, would avoid a journey up to this Court and return journey to the grass-root Court. The learned Registrar General of this Court is directed to communicate the copy of this order to all the subordinate Courts of West Bengal including Andaman & Nicobar Island to cope with the situation herein indicated. 31. This procedure, if properly followed, would avoid a journey up to this Court and return journey to the grass-root Court. The learned Registrar General of this Court is directed to communicate the copy of this order to all the subordinate Courts of West Bengal including Andaman & Nicobar Island to cope with the situation herein indicated. 31. Lower Court Records with a copy of this order be sent down forthwith to the learned Trial Court for information and necessary action. 32. Urgent xerox copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities. I agree. Appeal allowed.