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2010 DIGILAW 2638 (ALL)

Abdul Razzaque v. State of U. P. & Anr.

2010-08-28

S.N.H.ZAIDI

body2010
Hon'ble S.N.H. Zaidi,J.:- By means of the present petition filed under section 482 Cr.P.C., the petitioner has invoked inherent powers of this Court with the prayer that the order dated 5.10.2007 passed by the Additional Sessions Judge/Fast Track Court No.2, Gonda in Sessions Trial No. 289/1998 State vs. Aqeeq, whereby the accused opposite party no.2 was declared a juvenile and paragraph 54 of the judgment dated 20.8.2008 rendered in the said Sessions trial, whereby the juvenile accused has been forwarded to the Juvenile Justice Board for hearing on quantum of sentence and for passing the appropriate order for sentence, be quashed. A resume of the factual matrix of the case is that the petitioner (complainant of the case) had lodged a report against opposite party no.2 for causing death of his brother Abdul Jabbar, (the father in law of opposite party no.2) by assaulting him with knife on 11.5.1998 . On the basis of the report a case under section 302 Cr.P.C. was registered as case Crime No. 110/1998 at P.S. Itiathok, District Gonda and the police submitted charge sheet after concluding the investigation. During the course of trial, the accused/opposite party no.2 moved application claiming himself to be a juvenile on the date of incident and also for referring his matter to the Juvenile Justice Board in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as the Act of 2000. The learned trial Court, after hearing the parties, by impugned order dated 5.10.2007, found that the date of birth of the accused was 1.2.1981 and he was aged 17 years 3 months and 10 days and as such a juvenile on the date of incident but refused to refer the matter to the Juvenile Justice Board with the observation that if after the trial and at the time of judgment it is found that the juvenile has committed any offence then his case shall be referred to the Juvenile Justice Board. The trial of the juvenile accused was accordingly held and after concluding the trial, the learned trial Court, by judgment and order dated 20.8.2008, found the accused guilty of committing the offence but, vide impugned observation made in para 54 of the judgment, forwarded the juvenile accused to the Juvenile Justice Board for hearing on sentence and passing the appropriate order. I have heard learned counsel for the petitioner, learned A.G.A. for the State, learned counsel for opposite party no.2 and perused the material on record. The submission of learned counsel for the petitioner is that on the date of incident, i.e., on 11.5.1998 the provisions of the Juvenile Justice Act, 1986 were in force and according to the definition of "juvenile" under clause (h) of section 2 of the said Act, the accused-opposite party no.2 was not a juvenile as he had attained the age of more than 16 years and as such he was wrongly declared as a juvenile by impugned order dated 5.7.2007. In support of his contention learned counsel has placed reliance upon the observation of Hon'ble Apex Court in the case of Pratap Singh vs. State of Jharkhand reported in (2005)3 SCC 551 , wherein it has been held that the provisions of the Juvenile Justice Act, 2000 shall be applicable to a cause pending on 1.4.2001, i.e., the date on which Act of 2000 came into force, provided the person had not completed 18 years of age (the maximum age limit prescribed under the Act of 2000 in regard to declaration of a person as juvenile) and in respect of such cases the procedure given in section 20 dealing with special provisions in respect of pending cases in respect of a person who had seized to be a juvenile under the Juvenile Justice Act, 1986 but had yet not crossed age of 18 years shall be adopted. The learned trial Court had refused to refer the case to the Juvenile Justice Board referring to said section 20 of the Act of 2000. The submission of learned counsel for the opposite party no.2, on the other hand, is that Act of 2000 was amended by Act No.33 of 2006, with effect from 22.8.2006, whereby amongst other amendments, proviso and Explanation were inserted in section 20 and the amended section 20 as it stands now reads as under:- "20. The submission of learned counsel for the opposite party no.2, on the other hand, is that Act of 2000 was amended by Act No.33 of 2006, with effect from 22.8.2006, whereby amongst other amendments, proviso and Explanation were inserted in section 20 and the amended section 20 as it stands now 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. 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. 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. 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 (1) 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 said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." The submission is that the Explanation to the above section provides that juvenility of the accused in a pending case shall be determined in terms of clause (1) of section 2, according to which "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed 18 years of age on the date of commission of such offence and since the undisputed date of birth of the accused/opposite party no.2 is 1.2.1981, and on the date of commission of the alleged offence he was aged only 17 years 3 months and 10 days and was below 18 years of age, therefore, after he was declared as juvenile by the impugned order dated 5.10.2007, he should have been forwarded to Juvenile Justice Board in accordance with the provisions of sub-section (2) of section 7-A of the Act of 2000, which was also inserted by Act No. 33 of 2006. Section 7-A of Act, 2000 provides as under:- "7A.Procedure to be followed when claim of juvenility is raised before any court. Section 7-A of Act, 2000 provides 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? sub-section (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." Learned counsel for opposite party no.2 further submitted that the impugned order dated 5.10.2007 was passed after the Act of 2000 stood amended with effect from 22.8.2006 and thus the learned trial Court should have forwarded the accused to the Juvenile Justice Board for passing the appropriate order instead of proceeding with the trial of the juvenile. In this regard learned counsel has relied upon the judgment of the Supreme Court rendered in the case of Hari Ram vs. State of Rajasthan and another reported in [2009 (3) JIC 508 (SC)]. The Apex Court while considering the view expressed in Pratap Singh's case (supra) and several other cases on the point has held thus:- "26. The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (1) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000. 27. At this point it may be noted that the decision of the Constitution Bench in Pratap Singh's case (supra) was rendered at a point of time when the amendments to Sections 2(1) and 20 and the introduction of Section 7A had not yet been effected, nor was Rule 12 of the 2007 Rules available. Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules. The decisions rendered by this Court and the High Courts prior to 1st April, 2001, when the Juvenile Justice Act, 2000, came into force and thereafter can, therefore, be divided into two groups. The decision in Pratap Singh's case (supra) and in the case of Munney @ Rahat Jan Khan v. State of U.P. : (2006) 12 SCC 697 fall into the first category, whereas the decisions in Jameel v. State of Maharashtra (2007) 11 SCC 420 ; Vimal Chadha v. Vikas Chaudhary 2008CriLJ3190 ; Babloo Pasi v. State of Jharkhand : 2008(13) SCALE 137 and Ranjit Singh v. State of Haryana : (2008) 9 SCC453 fall into the second category. Although, the Constitution Bench decision in Pratap Singh's case (supra) and Munney's case (supra) are not really relevant since they have been rendered prior to 22nd August, 2006, when the Amending Act 33 of 2006 came into force, they assume a modicum of significance since they have been referred to and relied upon even after the Amending Act and the 2007 Rules came into force on 22.8.2006 and 26.10.2007, respectively." In view of the above observation of the Hon'ble Apex Court and considering the undisputed facts of the case that the accused- opposite party no.2 was aged below 18 years on the date of commission of offence, the impugned order dated 5.10.2007 declaring him as juvenile does not suffer with any illegality. However, so far as the later part of the impugned order is concerned, whereby the learned trial Court had refused the prayer of forwarding the accused to Juvenile Justice Board, it is in clear contradiction of sub-section (2) of section 7-A of the Act of 2000 and accordingly the subsequent trial of the juvenile- opposite party no.2 by the learned lower Court is vitiated and thus the judgment and finding arrived at by the learned Judge on the basis of said trial can not be sustained. The present petition challenging the order dated 5.10.2007 in respect of declaration of accused/opposite party no.2 as a juvenile is devoid of any merit and is liable to be dismissed and is accordingly dismissed. However, the later part of the order whereby the juvenile was refused to be forwarded to the Juvenile Justice Board, being contrary to the provisions of section 7-A (2), is liable to be quashed and is quashed accordingly. The judgment dated 20.8.2008, including the impugned order contained in para 54 thereof rendered without considering sections 2(1), 7-A, proviso and Explanation to section 20 of Juvenile Justice Act, 2000 and being in violation of the aforesaid provisions, is not maintainable and is accordingly quashed. The Court below is directed to forward the juvenile (opposite party no.2) to the concerned Juvenile Justice Board for passing the appropriate orders in accordance with section 7-A(2) of the Juvenile Justice Act, 2000. The Juvenile Justice Board shall pass appropriate order in accordance with law, without being influenced by the judgment of the trial Court expeditiously. Petition is accordingly disposed of.