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2012 DIGILAW 2284 (ALL)

ZAFAR IQBAL v. STATE OF U. P.

2012-09-28

ADITYA NATH MITTAL

body2012
JUDGMENT Hon’ble Aditya Nath Mittal, J.—This criminal revision has been preferred against the judgment and order dated 15.11.2010 passed by Additional Session Judge (Court No. 4), Etawah in Session Trial No. 603/1999 (State v. Shadab Jameel and others), under Sections 147, 148, 149 and 302/34 I.P.C., by which the application of the revisionist for separate his trial from other co-accused persons, has been rejected. 2. The brief facts are that the revisionist whose date of birth is 1.7.1981, was charged for the offences punishable under Sections 147, 148, 149 and 302/34 I.P.C. Under the Juvenile Justice Act, 1986 he was not juvenile but after the Juvenile Justice (Care and Protection of Children) Act, 2000, by which the age of juvenile was extended up to 18 years, the revisionist moved an application before the Sessions Judge to declare him juvenile. The occurrence took place on 28.2.1999, when he had already completed 16 years of age but has not attained the 18 years of age. Accordingly, vide order dated 6.8.2010 he was declared juvenile. 3. Subsequent to that on 28.10.2010, the revisionist moved an application before the Sessions Judge to separate his trial in view of Sections 17 and 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was rejected by the impugned order dated 15.11.2010, on the ground that the case is covered by the provisions of Section 20 of Juvenile Justice (Care and Protection of Children) Act, 2000, hence there is no sufficient ground to separate his file. It is relevant to mention here that the application to separate the trial was moved when all the evidence of the prosecution had concluded and the case was fixed for arguments. In the order dated 6.8.2010, when the accused was declared juvenile, it was mentioned that his case shall be dealt with in accordance with the provisions of Section 20 of Juvenile Justice (Care and Protection of Children) Act, 2000. This order of 6.8.2010 was not challenged and as an additional ground the learned lower Court came to the conclusion that this Court has no power to recall or review his previous order. 4. This revision has been filed on the ground that as per provision of Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the revisionist cannot be tried for any offence together with the provisions, who are not juvenile. 4. This revision has been filed on the ground that as per provision of Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the revisionist cannot be tried for any offence together with the provisions, who are not juvenile. The trial Court completely loosing site of the said provision, has illegally rejected the application of the revisionist. In the present case the charges were framed against the revisionist on 13.11.2002, hence it cannot be said that at the time of coming into force of the Act of 2000, the case was pending before the Court, therefore, provisions of Section 20 of the Act 2000, will not apply in the present case. 5. Heard learned counsel for the revisionist and learned A.G.A. 6. Learned counsel for the revisionist has submitted that the Act of 2000 is a benevolent Act and the very scheme of the aforesaid Act is rehabilitatry in nature and not adversarial, therefore, all the benefits of the Act 2000 must be provided to the revisionist. It is also submitted that there appears to be a conflict between the provisions of Section 18 and Section 20 of the Act of 2000 and the benefit of Section 18 should be extended to the revisionist. It is also submitted that the charges were framed on 13.11.2002, hence it cannot be said that on the date of commencement of this Act i.e. 1.4.2001, the trial was pending before the Court. 7. Section 18 of the Act of 2000 provides as under : “18. No joint proceeding of juvenile and person not a juvenile.—(1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time offence together with a person who is not a juvenile. being in force, no juvenile shall be charged with or tried for any (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.” 8. Section 20 further provides as under : “20. Section 20 further provides 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 n 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 sha l 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. 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.” 9. Section 18 of the Act, 2000 begins with the non-obstente clause with regard to Section 223 of Code of Criminal Procedure, 1973, while Section 20 begins with non-obstente clause with regard to anything contained in this Act. Section 18 provides that no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Whereas provisions of Section 20 are special provisions in respect of pending cases which clearly mandates that all proceedings in respect of juvenile pending in any Court in any area on the date of which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed. Whereas provisions of Section 20 are special provisions in respect of pending cases which clearly mandates that all proceedings in respect of juvenile pending in any Court in any area on the date of which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed. The only restriction is that if the Court finds that the juvenile has committed an offence, it shall not pass any sentence but shall forward the case to the Juvenile Board which shall pass the orders in accordance with the provisions of this Act. 10. On the joint reading of the provisions of Section 18 and Section 20 of the Act of 2000, I do not find any conflict in between these two provisions. The stage of framing of the charge had already been passed on 13.11.2002, when the charges were framed and at that time the accused-revisionist has not taken any such plea that his case should be separated. Undisputedly the plea of juvenility can be taken at any stage of the trial and even at the stage of appeal. The plea of juvenility under the Act of 2000 was taken by the revisionist vide application dated 6.8.2010 i.e. almost 8 years after the framing of the charge and after completion of the evidence in the matter and at the stage of arguments. No doubt the purpose of the Act of 2000 is benevolent and the juvenile is entitled to the benefits of the Act but that does not mean that process of law can be misused by such juvenile in the garb of benefits provided under the Act of 2000. Nothing has been explained as to why such plea was not taken at the time of framing of the charge on 13.11.2002 and why the revisionist had not taken care of his right under Section 18 of the Act. Certainly when there was no objection at the time of framing of the charge and during the whole trial, then it can be deemed that the revisionist had waived his right. No cogent reason has been shown as to why the revisionist remained silent for complete 8 years and waited and watched the proceedings to complete. Certainly when there was no objection at the time of framing of the charge and during the whole trial, then it can be deemed that the revisionist had waived his right. No cogent reason has been shown as to why the revisionist remained silent for complete 8 years and waited and watched the proceedings to complete. Section 20 of the Act of 2000 is a special provision in respect of pending cases and it take cares of all the rights and privileges available to the juvenile. Provisions of Section 20 of the Act of 2000 have over-riding effect over all the provisions of this Act of 2000 which provides that all the proceedings in respect of juvenile pending in any Court shall be continued in that Court as if this Act had not been passed. 11. Learned counsel for the revisionist has submitted that the charges were framed on 13.11.2002 and the Act of 2000 came into force on 1.4.2001, hence it cannot be said that the case was pending before the Court at the time of coming into effect of the Act. The submission of learned counsel for the revisionist has no substance because Section 20 of the Act of 2000 deals with all the proceedings in respect of juvenile. It does not earmarked the date of framing of the charge as the initialisation of proceedings against the juvenile. It is settled law that proceedings in a criminal case shall be deemed to have been initiated from the date of taking cognizance by the competent Court. In this case the occurrence took place on 28.2.1999 and it is not the case of the revisionist that the Court has not taken cognizance prior to the date of enforcement of this Act i.e. 1.4.2001. Hence for all purposes the proceedings in respect of juvenile were pending before the Court on the date of enforcement of this Act and accordingly the case of the revisionist falls under Section 20 of the Act of 2000 and at this stage i.e. the stage of arguments, the revisionist is not entitled to claim the benefit of Section 18 of the Act of 2000. 12. Learned counsel for the revisionist has placed reliance on Hari Ram v. State of Rajasthan and another, (2009) 13 SCC 211 , Hon’ble Apex Court in this case has interpreted various provisions of the Act of 2000 and Rules of 2007. 12. Learned counsel for the revisionist has placed reliance on Hari Ram v. State of Rajasthan and another, (2009) 13 SCC 211 , Hon’ble Apex Court in this case has interpreted various provisions of the Act of 2000 and Rules of 2007. Basically, in this case the principles regarding determination of juvenility have been explained. The scope of Sections 3 and 20 of Juvenile Justice (Care and Protection of Children) Act, 2000 alongwith definition of juvenile in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 as contrasted with the definition of a male juvenile in Section 2(h) of the 1986 Act has been considered in this case and it has been held that to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice (Care and Protection of Children) Act, 2000 to cases pending on 1.4.2001, the proviso and explanation to Section 20 were added by Amendment Act 33 of 2006 which makes it very clear that in all pending cases the determination of Juvenility of a juvenile would be in terms of clause (l) of Section 2 even if the juvenile seems to be a juvenile on or before 1.4.2001. 13. It has been further held as follows : “The law is now crystallised on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1.4.2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.” 14. In the present case, there is no dispute that the juvenility of the revisionist has been determined in his favour in accordance with the Act of 2000, therefore, undoubtedly the revisionist is entitled to the benefits of the Act of 2000 but that does not mean that the revisionist will dictate his own terms regarding trial as and when he desires so. The case of the revisionist is to be seen in view of the provisions of the Act of 2000 and provisions of Section 18 of the Act cannot be read in isolation with the provisions of Section 20 of the Act which is a special provision regarding pending cases and which has over-riding effect over the Act. The overall effect of the Act of 2000 as well as subsequent amendments is that in case the Court finds that the juvenile has committed an offence, it shall record such findings 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. 15. Learned Additional Sessions Judge in the impugned order has considered all aspects of the matter and has also mentioned that the revisionist shall be entitled for the protection provided under Section 20 of the Act of 2000. Now the trial is at the final argument stage and the provisions of Section 18 of the Act of 2000 doe not apply in the case of revisionist in view of over-riding effect of the provisions of Section 20 of the Act, hence there was no justification to separate the trial of the revisionist at the stage of final arguments. 16. In Motty Philipose and another v. State of Kerala, 2006 Cr LJ 2271 (Ker), it has been held that Section 20 refers to the 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 had not been passed and if the Court finds that the Juvenile has committed an offence, it shall record such findings 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. 17. 17. In Raju and another v. State of Haryana, 2010 (3) SCC 235 , the accused was tried for the offence punishable under Section 302 I.P.C. and was sentenced but upon appeal to Hon’ble the Supreme Court, the conviction was altered to Section 304 part I read with Section 34 I.P.C. In this case the plea of juvenility was raised at the time of appeal before the Hon’ble Supreme Court. Hon’ble the Supreme Court following the judgment in Hari Ram v. State of Rajasthan and another (supra) extended the benefit of the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and referred the case to the Juvenile Justice Board in terms of Section 20 of the Act. 18. In the instant case also if the Court finds that the juvenile has committed an offence, it shall record such findings and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board for appropriate orders in accordance with the provisions of Act of 2000. 19. In the facts and circumstances as discussed above, I do not find any illegality or perversity in the impugned order. The revision is dismissed. The interim order dated 9.2.2011 is vacated. 20. Let a copy of this judgment be sent to the Sessions Judge, Etawah to proceed with the trial. ——————