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2013 DIGILAW 116 (ALL)

IQBAL v. STATE OF U. P.

2013-01-10

V.P.PATHAK

body2013
JUDGMENT Hon’ble V.P. Pathak, J.—Heard learned counsel for the revisionist as well as learned AGA. Present revision has been preferred against the order dated 9/2/2007 passed by the Special Judge, (E.C.Act), Badaun in ST No. 1132/1997, under Section 302 IPC, PS Kotwali, District Badaun by which the application 60 Kha moved by the revisionist for declaring him juvenile has been rejected. 2. The brief facts of the case are that on 19.5.97, an FIR has been got lodged by one Ishrat Ulla Khan @ Mintu against the revisionist Iqbal about the incident of the same day, which was registered as Case Crime No. 316/1997, under Section 302 IPC, PS Kotwali, District Badaun. After investigation, the charge sheet was submitted against the revisionist and thereafter trial of ST No. 1132/1997 started and was proceeding against him before the Court of Special Judge, (E.C.Act)/Addl. Sessions Judge, Badaun. During the pendency of the trial, an application 5 Kha was moved on behalf of the revisionist for declaring him juvenile on account of the fact that at the time of the incident, he was about 14 years of age. On the said application a report was called for from the Chief Medical Officer concerned. The CMO submitted his report on 18.12.1997 in which it was opined that the revisionist was about 17 years of age. After the said report of the CMO, learned trial Court considered the matter of juvenility of the revisionist and rejected the said application 5 Kha moved by him on 23.12.1997 on the ground that the date of occurrence was 19.5.1997 and the report of the CMO was dated 18.12.1997 in which the age of the revisionist was opined to be about 17 years, hence he was not below 16 years of age. 3. It appears that in the meantime the juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as Act of 2000, was introduced by which the earlier Juvenile Justice Act,1986 was repealed. The Act of 2000 was also amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, hereinafter referred to as new Act, and several provisions have been introduced. The Act of 2000 was also amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, hereinafter referred to as new Act, and several provisions have been introduced. According to the said new Act, the definitions of the words “juvenile or child” and “juvenile in conflict with law” are defined in Sections 2(k) and 2(l), which reads as under : “2(k) “juvenile” or “child” means a person who has not completed eighteenth year of age; (l) “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." After the new Act came into effect, the revisionist moved an application dated 19.12.2006 before the trial Court to declare him juvenile on the ground that the date of birth of the elder sister of the revisionist Sugufta was 7.3.1982 from the school certificate and the applicant was one and half year young, hence at the time of incident, he was aged below 14 years only. 4. The learned Court below after considering the said application has rejected the same vide the order impugned dated 9.2.2007 referred to above on the ground that earlier the question of juvenility had already been considered on the application moved by the revisionist in that regard and the same was rejected on 23.12.1997. While rejecting the said application, it was observed that there was no change of circumstance as the date of incident as well as the report of the Chief Medical Officer was the same. Hence there was no new ground. 5. Learned counsel for the revisionist has mainly contended that subsequently the report of the Chief Medical Officer was again called for and the Chief Medical Officer gave his report on 9.5.2012 in which the age of the revisionist has been opined to be 23 years and according to his birth certificate issued from Nagar Palika Parishad, Badaun, the date of birth of the revisionist is shown to be 18.09.1983. Hence considering from the date of incident i.e. 19.5.1997, the applicant’s age would be below 15 years. Hence considering from the date of incident i.e. 19.5.1997, the applicant’s age would be below 15 years. It is also submitted that even if the earlier report of the Chief Medical Officer dated 18.12.1997 in which the age of the revisionist is opined to be about 17 years is taken into consideration, then also in view of amended Act, the applicant would be juvenile at the time of incident. He placed reliance upon the two verdicts of the Hon’ble Apex Court given in Daya Nand v. State of Haryana, 2011(73) ACC 971 and Amit Singh v. State of Mahatrshtra, 2011(74) ACC 887. 6. I have considered the said arguments and perused the verdicts of Hon’ble Apex Court as well as the relevant provisions of the Act as amended by Act No. 33 of 2006 and the Rules framed thereunder, alongwith all materials available on record. Now coming to consider the verdict of Hon’ble Apex Court in Daya Nand v. State of Harnaya (supra) the Hon’ble Apex Court in paragraph 10 has been pleased to hold as follows : “In the Juvenile Justice Act, 1986, a ‘juvenile’ was defined under Section 2(h) to mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years.” The Hon’ble Apex Court in para 11 has further held as follows : “The Juvenile Justice Act, 1986 was replaced by the Juvenile Justice (Care and Protection of Children Act), 2000 that came into force on April 1,2001. The 2000 Act defined ‘juvenile or child’ in Section 2(k) to mean a person who has not completed eighteenth years of age. Section 69 of 2000 Act repealed the Juvenile Justice Act, 1986.The 2000 Act, in Section 20 also contained a provision in regard to cases that were pending when it came into force and in which the accused at the time of commission of offence was below 18 years of age but above sixteen years of age (and hence, not a juvenile under the 1986 Act) and consequently who was being tried not before a juvenile Court but a regular Court. Section 20 (prior to its amendment in 2006) provided as follows : “20. Section 20 (prior to its amendment in 2006) provided as follows : “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.” The Hon’ble Apex Court has further held in para 12 as follows : “The above quoted provision came up for consideration before a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and another, 2005(28) AIC 640 (SC). In Pratap Singh, this Court held that Section 20 of the 2000 Act would apply only to cases in which the accused was below 18 years of age on April 1,2001, the date on which the 2000 Act came into force but it would have no application in case the accused had crossed the age of 18 years on the date of coming into force of the 2000 Act.” The Hon’ble Apex Court in para 13 has further made the following observations:- “After this Court’s decision in Pratap Singh (and presumably as a result of that decision) a number of amendments of a very basic nature were introduced in the 2000 Act w.e.f August 22,2006 by Act 33 of 2006. Some of the provisions incorporated in the 2000 Act by the 2006 amendment in so far as relevant for the present are reproduced below : “1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law. 2 (1) “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; 7-A. 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 enquiry, 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 effect of the amendments in the 2000 Act were considered by this Court in Hari Ram v. State of Rajasthan and another, 2010(86) AIC 97 (SC). In Hari Ram, this Court held that the Constitution Bench decision in Pratap Singh’s case was no longer relevant since it was rendered under the unamended Act. In Hari Ram this Court held and observed as follows : “59. In Hari Ram, this Court held that the Constitution Bench decision in Pratap Singh’s case was no longer relevant since it was rendered under the unamended Act. In Hari Ram this Court held and observed as follows : “59. The law as now crystallized 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.” In para 68, Hon’ble Apex Court has further held as follows : “Accordingly, a juvenile who had not completed eighteenth year on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act,2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.” 7. Now coming to consider the another verdict given by the Hon’ble Apex Court in Amit Singh v. State of Maharashtra, 2011(74) ACC 887, the same principle has been followed and it has been held in para 10 as follows : “It is clear from the above provisions, namely, Section 7-A, the claim of juvenility to be raised before any Court at any stage, even after final disposal of the case and sets out the procedure which the Court is required to adopt, when such claim of juvenility is raised. Apart from the aforesaid provisions of the Act as amended, and the Juvenile Justice (Care and Protection of Children) Rules, 2007, (in short ‘ the rules’), Rule 98, in particular, has to be read alongwith Section 20 of the Act as amended by the Amendment Act, 2006 which provides that even after disposal of 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, review the case of juvenile, determine the juveniltity 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 i .e 3 years. All the above relevant provisions, including the amended provisions of the Act and the Rules have been elaborately considered by this Court in Hari Ram (supra).” 8. While applying the ratio of the aforesaid verdicts of Hon’ble Apex Court referred to above, in the present matter, it is apparent that the incident is of 19.5.1997 and according to earlier opinion of the Chief Medical Officer which was given on 18.12.1997, the age of the revisionist was opined to be about 17 years. Hence it is clear that at the time of incident, the revisionist was below 18 years. According to the amended Act and in view of the aforesaid verdicts, the applicant is entitled to the benefit of the age of juvenility given in the new Act as in view of Sections 2(k) and 2(l) “juvenile” or “child” means a person who has not completed eighteenth year of age and “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 learned Court below should have considered the application of the revisionist for declaring him juvenile in its proper perspective in accordance with the provisions of the amended Act but instead vide the impugned order dated 9.2.2007, it rejected the same only on the basis that his earlier application had already been rejected on 23.12.1997. Having not done so, the order impugned passed by the learned Court below is erroneous and is not sustainable in the eye of law. In view of the aforesaid considerations, this revision is allowed. The impugned order dated 9.2.2007 is hereby set aside and the matter is remanded back to the learned trial Court to decide the matter of juvenility of the revisionist afresh in accordance with law, in the light of the observations made above and thereafter proceed further in accordance with law. —————