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2012 DIGILAW 655 (HP)

Lachho Devi v. State of Himachal Pradesh

2012-10-01

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J. 1. The instant application has been moved under Section 482 of the Code of Criminal Procedure by Applicant Man Singh convict for initiating an enquiry with respect to the juvenility. The applicant and his mother Lachho Devi were charge-sheeted and tried for the offences punishable under Sections 302, 325, 506 read with Section 34 of the Indian Penal Code. At the end of the trial, Lachho Devi was convicted for the offence punishable under Section 325 of the Indian Penal Code and was sentenced to undergo imprisonment till rising of the Court and further to pay a fine of Rs. 5,000/- which was deposited by her, whereas applicant Man Singh was convicted for the offence punishable under Section 304-II of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/-, which have been challenged in this appeal. Now, the applicant claims that his date of birth is 10.8.1982 (Annexure A-1) and on the date of incident, i.e. on 11.11.1999, he was less than 18 years, which fact has been disputed by the respondent-State. According to them, his date of birth is 19.6.1978. as contained in the reply filed today in the Court. 2. The Apex Court in Amit Singh v. State of Maharashtra and another, (2012) 2 SCC (Cri) 858 and (2011) 13 SCC 744 , while considering its previous judgments considered the identical question of low in the light of the Amendment Act 33 of 2006 in the provisions of the Act which substituted Section 2(1) to define a "juvenile in conflict with law" as a "juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence." By way of Amendment Act 33/2006. 3. Taking notice of Section 7A, it reads as follows: 7A. 3. Taking notice of Section 7A, it reads as follows: 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 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 for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect. The Apex Court observed that the claim of juvenility may be raised before any Court at any stage, even after final disposal of the case and this Section sets out the procedure required to be followed by the Court when such claim of juvenility is raised. Apart from the aforesaid provisions of the Act, as amended, Rule 98, in particular, framed under the Act has to be read alongwith Section 20 of the Act as amended by the Amendment Act, 2006, which provides that even after disposal of the cases of juveniles in conflict with law, the State Government or the Board, could, either suo motu or on an application made for the purpose, could even review the case of juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act. The aforesaid provisions have been clearly and elaborately dealt with by the Apex Court in Hari Ram v. State of Rajasthan, 2009 (13) SCC 211 . 4. Now, by virtue of the explanation to Section 20 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 juvenile ceased to be a juvenile on or before 1st April, 2001, when the Act 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 is committed. 5. In view of the above stated position, it is expedient and in the interest of justice to hold an enquiry with respect to the juvenility of applicant Man Singh on the date of alleged occurrence. Therefore, record alongwith a copy of this order be returned to the Court of learned Sessions Judge, Chamba, to hold an enquiry and take such evidence as may be necessary despite to determine the age of said Man Singh, as aforesaid, record a finding to this effect and submit for consideration of this Court on or before 4.12.2012, on which date, the appeal shall be listed before this Court. The parties as well as the State are hereby directed to be present before the learned Sessions Judge, Chamba on 31.10.2012. Authenticated copy of this be supplied by the Court Master to the parties.