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2010 DIGILAW 2852 (ALL)

Mahboob Hasan Miyan v. State of UP

2010-09-16

SHRI KANT TRIPATHI

body2010
Hon'ble Shri Kant Tripathi, J. - Heard Sri I.M. Khan, learned counsel for the applicant, Sri A.K. Sachan and J.S. Tomar for the complainant, Mr. Syed Ali Murtaza learned AGA for the State and perused the record. 2. This is a petition under Section 482 Cr.P.C. for quashing the order dated 22.2.2008, passed by the learned Additional Sessions Judge (Fast Track Court No. 2), Bareilly in ST. No. 462 of 1991, Sfate v. Adeeb Miyan and others, whereby the learned Additional Sessions Judge has declared the applicant as juvenile under Section 2(K) of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as the 'Act of 2000') and instead sending the applicant to the Juvenile Justice Board, proceeded with the trial against him. 3. In the aforesaid sessions trial, the applicant Mahboob Hasan Miyan and one Adeeb Miyan are being tried jointly in respect of the charge under Section 302IPC and the trial has reached the stage of defence evidence. The applicant moved applications dated 23.7.2005 and 6.8.2005 for declaring him as a juvenile on the ground that he was aged about 14 years on the date of occurrence. The respondent filed an objection with the allegations that the trial was pending for defence evidence and the aforesaid applications had been moved to delay the conclusion of the trial. The learned Additional Sessions Judge, after considering the relevant materials, found that the applicant was less than 16 years and was, thus, a juvenile on the date of the occurrence and it accordingly declared him as a juvenile. But refused to send him to the Juvenile Justice Board and while doing so took into account the provisions of Section 20 of the Act. 4. Mr. I.M. Khan submitted for the applicant that in view of Section 18ofthe Act, the trial of the applicant alongwith co-accused, who is a non-juvenile, was not permissible. The learned Additional Sessions Judge had no option except to refer the applicant to the Juvenile Justice Board for inquiry under the Act. 5. In order to appreciate the aforesaid submissions it seems to be just and expedient to refer to the provisions of Section 18 of the Act of 2000. "Section 18. The learned Additional Sessions Judge had no option except to refer the applicant to the Juvenile Justice Board for inquiry under the Act. 5. In order to appreciate the aforesaid submissions it seems to be just and expedient to refer to the provisions of Section 18 of the Act of 2000. "Section 18. No joint proceeding of juvenile and person not a juvenile.) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person." 6. Section 18 (1) of the Act of 2000 has an overriding effect over the provisions of Section 223 of the Cr PC and other laws for the time being in force, therefore, trial of juveniles is not permissible to be held jointly with a non juvenile. Even framing of a joint charge against juveniles and non juveniles is not permissible under Section 18 (1) of the Act of 2000. Sub-section (2) and Section 18oftheAct of 2000 further provides that if juveniles and non juveniles have been charged and tried together, the Juvenile Justice Board taking cognizance of the offence has been mandated to direct for separate trials of the juveniles and the other persons. 7. Sub-section (2) and Section 18oftheAct of 2000 further provides that if juveniles and non juveniles have been charged and tried together, the Juvenile Justice Board taking cognizance of the offence has been mandated to direct for separate trials of the juveniles and the other persons. 7. In Pratap Singh v. Sfate ofJharkhand, AIR 2005 SC 2731 , a Constitution Bench of the Apex Court has infer alia considered the ambit and scope of Section 20 of the Act of 2000 and held that if a person was not a juvenile (more than 16 years in the case of male and more than 18 years in the case of female) but had not completed the age of 18 years on the date of commencement of the Act of 2000, i.e. 1.4.2001 he will be deemed to be a juvenile for the purposes of the Act of 2000. The Apex Court further held that if a person was not a juvenile under the Act of 1986 but became juvenile by virtue of the provisions of the Act of 2000 and the trial against him was pending in a regular Court on the date of commencement of the Act of 2000, his trial, in view of Section 20 of the Act of 2000, would continue to be held in the regular Court and if a finding of guilt is recorded by the regular Court after the trial against the juvenile, it will have to refer the juvenile to the Juvenile Justice Board for appropriate order and should not itself pass any sentence or order against the juvenile. The text of the Apex Court's observations expressed in paras 31, 34 and 98 are reproduced as follows. "31. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence "Notwithstanding anything contain in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of 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 is 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. The proceedings in respect of a juvenile pending in any Court referred to in Section 20 of the Act is 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 in criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers 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. 34. This Rule also indicates that the intention of the Legislature was that the provisions of the 2000 Act were to apply to pending cases provided, on 1.4.2001 i.e. the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i.e. he/ she had not crossed 18 years of age. 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 Section 29 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 Section 20 or Section 64 are 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 Section 20 or Section 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." 8. In view of the principle laid down by the Apex Court in Pratap Singh's case (supra), Section 20 of the Act of 2000 applies in the case where the occurrence took place prior to coming into force of the Act of 2000 and the applicant was not a juvenile on the date of occurrence but became juvenile under the new Act of 2000. In such matters, if a trial was pending on the date of commencement of the Act of 2000 against that juvenile signally or jointly with any other person, the trial will continue to be held in the regular Court in accordance with Section 20 of the Act of 2000 and the juvenile has to be referred to the Juvenile Justice Board only at the stage of sentence after conviction. But in the present case, the position seems to be different. According to the learned Additional Sessions Judge, the petitioner was less than 16 years on the date of occurrence, therefore, he was a juvenile even under the old Act of 1986, therefore, he was to be tried by the Juvenile Justice Board and not by the regular Court. But in the present case, the position seems to be different. According to the learned Additional Sessions Judge, the petitioner was less than 16 years on the date of occurrence, therefore, he was a juvenile even under the old Act of 1986, therefore, he was to be tried by the Juvenile Justice Board and not by the regular Court. As such Section 20 of the Act of 2000 has no application in this case. It is true that the question of juvenility was raised at a highly belated stage when the trial reached at the stage of defence evidence but as and when the trial Court found that the petitioner was a juvenile on the date of occurrence, he should have referred the case to the Juvenile Justice Board at that stage specially when Section 20 of the Act of 2000 has no application in this case. 9. The Additional Sessions Judge has, therefore, committed material error of law in holding that the petitioner will be referred to the Juvenile Justice Board at the stage of sentence. 10. The petition is allowed. The impugned order dated 22.2.2008 (Annexure No. 2 to the petition) is quashed. The learned Additional Sessions Judge is directed to refer the matter of the petitioner (juvenile) to the Juvenile Justice Board for appropriate inquiry under the Act of 2000, after separating his case from the case of the other accused, whose trial will continue to be held by the regular Court in accordance with law.