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Allahabad High Court · body

2013 DIGILAW 656 (ALL)

BIJENDRA KUMAR v. STATE OF U. P.

2013-02-27

HET SINGH YADAV

body2013
JUDGMENT Hon’ble Het Singh Yadav, J.—Impugned in this revision is the order dated 5.4.2010 of learned Additional Sessions Judge, Court Room No. 15 Meerut passed in S.T. No. 1108 of 1996 (State v. Bijendra and others) whereby revisionist was pronounced not as juvenile and the Court below declined to forward him and the record of proceedings to Juvenile Justice Board. 2. Short of unnecessary details, the facts as are necessary for disposal of the revision may be mentioned. The F.I.R. in case was lodged against the persons named therein including the revisionist at P.S. Ramala District- Meerut (now Baghpat) mentioning that the incident occurred on 17.9.1995. It would transpire that after completion of investigation, the Investigating Officer submitted charge-sheet under Sections 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act against all the persons named in the F.I.R. The revisionist is related to the deceased as the brother in law (Devar). After committal of the case to the Court of session, the trial commenced. It would further transpire that it was after recording the statements of accused persons under Section 313 Cr.P.C. that the revisionist moved an application in the trial Court mentioning that as per the High School certificate, his date of birth is 10.8.1977. He also filed copy of the certificate alongwith the application. Thus, his age on the date of the occurrence was 17 years 10 months and 7 days i.e. below 18 years. The revisionist, therefore, prayed for being declared as juvenile under provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 ( in short the Act 2000) and for being forwarded alongwith the record of the proceedings to the Juvenile Justice Board having jurisdiction over the proceedings. The learned trial Court vide the impugned order held the age of the revisionist being 17 years 10 months and 7 days on the date of the occurrence but at the same time declined to declare him as juvenile. It is in this perspective that the order of the trial Court has been assailed by means of the present revision. 3. I have heard learned counsel for the Revisionist, learned A.G.A. and learned counsel for the Respondent No. 2 at great length and have also been taken through the materials on record. It is in this perspective that the order of the trial Court has been assailed by means of the present revision. 3. I have heard learned counsel for the Revisionist, learned A.G.A. and learned counsel for the Respondent No. 2 at great length and have also been taken through the materials on record. Having pondered over the arguments of the learned counsel for both the sides and on perusal of the record following questions crystallize for determination in this revision : (i) Whether the revisionist who was not juvenile on the date of the occurrence in view of Juvenile Justice Act 1986 (in short the Act 1986) will be entitled to be declared as juvenile and will also be entitled to the benefits accruing as a juvenile under the Act 2000 for the reason that he was below 18 years on the date of occurrence? (ii) Whether in the facts and circumstances of the case, the trial Court erred in not forwarding the revisionist alongwith the record of the proceedings to the Juvenile Justice Board when the Court was of the opinion that the revisionist was below 18 years on the date of the occurrence? Question No. 1: The facts on the basis of which the revisionist claimed himself to be juvenile and sought protection under the Act 2000 are that on the date of occurrence which took place on 17.6.1995 the date of birth of the revisionist as per his matriculation certificate was 10.8.1977. It is worthy of notice that on the date of the occurrence, the Act, 1986 was in force. Section 2 (h) of the Act 1986 defines the juvenile as under: “juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.” On the date of occurrence, it brooks no dispute, the revisionist was above 16 years of age. Accordingly, he was not within the purview of the juvenility on the date of the occurrence and even at the time when the trial commenced. It was during the pendency of the trial that the Act 2000 came into force w.e.f. 1.4.2001. According to the Act 2000, the age for treating a person juvenile was enhanced to 18 years. The Act 2000 defines the juvenile as follows: “2(k): “juvenile” or “child” means a person, who has not completed eighteen years of age” 4. It was during the pendency of the trial that the Act 2000 came into force w.e.f. 1.4.2001. According to the Act 2000, the age for treating a person juvenile was enhanced to 18 years. The Act 2000 defines the juvenile as follows: “2(k): “juvenile” or “child” means a person, who has not completed eighteen years of age” 4. From a scrutiny of the Act 2000, it would appear that the Legislature passed Amendment Act No. 33 of 2006 inter alia introducing new Clause (l) of Section 2, Section 7 (A), Explanation to Section 20 in the Act 2000 w.e.f. 22.8.2006, besides the Juvenile Justice Rules, 2007 ( in short the Rules 2007) also came into force w.e.f. 26.10.2007. These amendments brought significant changes as regards the application of Act 2000 relating to pending cases in which the accused had not completed the age of 18 years at the time of occurrence. As per amended provisions, a claim of juvenile can be raised before any Court at any stage even after final disposal in the case where the accused was below 18 years on the date of commission of the offence. Section 2(l) of the amended Act 2000 defines the juvenile as under: “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence.” By virtue of Explanation added to Section 20 of the Amended Act 2006, it may be made clear that in all pending cases the determination of juvenile has to be in terms of Clause (l) of Section 2 even if the juvenile ceases to be a juvenile on or before the date on which the Act 2000 came into force i.e. 1.4.2001. 5. In the instant case, on the date of occurrence, the revisionist was 17 years, 10 months and 7 days as held by the trial Court on the basis of his matriculation certificate. In connection with the issue at hand, I feel called to refer to Rule 12 of the Rules 2007 which laid down procedure to be followed in determination of age is as under: “12. In connection with the issue at hand, I feel called to refer to Rule 12 of the Rules 2007 which laid down procedure to be followed in determination of age is as under: “12. Procedure to be followed in determination of age.—(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days form the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining— (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) and (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing order in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and the Rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule. (6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 6. On a perusal of the aforesaid rule, it would crystallize that the matriculation or equivalent certificate if available, has been deemed to be the best piece of evidence to determine the age. The revisionist as stated supra has brought on the record his matriculation certificate and claimed his juvenility on that basis. On a perusal of the aforesaid rule, it would crystallize that the matriculation or equivalent certificate if available, has been deemed to be the best piece of evidence to determine the age. The revisionist as stated supra has brought on the record his matriculation certificate and claimed his juvenility on that basis. The trial Court having considered the matter, did lean in favour of the fact that on the date of occurrence, the revisionist was below 18 years. It is in the light of matriculation certificate and regard being had to the date of occurrence, it leaves no manner of doubt that the revisionist was below 18 years on the date when the alleged offence was committed. It would be expedient to mention here that it is now almost settled law that the relevant date for reckoning the age of juvenile would be the date of occurrence and not the date on which he was produced before the Court as held by Constitutional Bench of the Apex Court in Prtap Singh v. State of Jharkhand and another, (2005) 3 SCC 551 . The Constitutional Bench held thus: “The Court, therefore, must determine the age of the appellant herein keeping in view our aforementioned findings that the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Court.” 7. Now, it would be expedient to have a look at newly added Section 7 (A) and Explanation to Section 20 of the Act which reads thus: “ 7-A. Procedure to be followed when claim of juvenility is raised before any Court. Now, it would be expedient to have a look at newly added Section 7 (A) and Explanation to Section 20 of the Act which reads thus: “ 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 recognised 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 order, and the sentence if any, passed by a Court shall be deemed to have no effect.” “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. 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 the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 8. Section 7 (A) contemplates that a claim of juvenility can be raised before any Court and has to be considered at any stage even after disposal of the case. The claim so raised is required to be determined in accordance with the provisions of the Act 2000 and the rules framed thereunder. The necessary implication of the amended Act is that it is immaterial that the juvenile has ceased to be so on or before on 1.4.2001, which is date of commencement of the Act 2000. From a punctilious reading of the language of the Explanation to Section 20, it is obvious that in all pending cases which would include not only trials but even subsequent proceedings for determination of juvenility of a juvenile has to be in terms of clause (l) to Section 2 even if the juvenile ceases to be a juvenile on or before 1.4.2001. Thus, from a conjoint reading of Sections 2 (l), 7 (A) and 20 read with Rule 12 of Rules 2007, it is manifest that a person, who was below 18 years on the date of commission of the offence even prior to 1.4.2001 would be entitled to get the benefits accruing from the amended Act 2000 as juvenile. It is meaningless that the claim of juvenility is raised after attaining the age of 18 years on or before the date when the Act came into force. 9. Now I feel called to examine the aforesaid question in the light of the judicial precedents if any. I have come across a case of the Apex Court styled as Hari Ram v. State of Rajasthan and another, (2010) 1 SCC (Cri) 987. 9. Now I feel called to examine the aforesaid question in the light of the judicial precedents if any. I have come across a case of the Apex Court styled as Hari Ram v. State of Rajasthan and another, (2010) 1 SCC (Cri) 987. From a scrutiny of the said case, it would transpire that in similar sets of facts and circumstances of the case Hon’ble Supreme Court while interpreting the amended provisions of the Act 2000 held thus:- “39. 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 (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1.4.2001, 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 provisions of the Juvenile Justice Act 2000. x x x x x x “64. In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act 2000, that in Section 2(k) a Juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect. 65. However, as indicated hereinabove after the decision in Pratap Singh case Section 2 (l) was amended to define “a juvenile in conflict with law” to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. 66. 65. However, as indicated hereinabove after the decision in Pratap Singh case Section 2 (l) was amended to define “a juvenile in conflict with law” to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. 66. Section 7-A was introduced in the 2000 act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act 2000. 67. Section 7-A of the Juvenile Justice Act 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. 68. Accordingly, a juvenile who had not completed eighteen years 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. 69. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act and the provisions of the act would apply as if the said provisions had been in force when the alleged offence was committed.” 10. Ratio flowing from the above case as laid down in Hari Ram’s Case (supra) has been re-affirmed in Dharambir v. State (NCT of Delhi) and another, (2010) 5 SCC 344 . It is held thus: “11. Ratio flowing from the above case as laid down in Hari Ram’s Case (supra) has been re-affirmed in Dharambir v. State (NCT of Delhi) and another, (2010) 5 SCC 344 . It is held thus: “11. It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1.4.2001, when the Act of 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.” “12. Clause (l) of Section 2 of the Act of 2000 provides that “juvenile in conflict with law” means a “juvenile” who is alleged to have committed an offence and has not completed eighteen year of age as on the date of commission of such offence. Section 20 also 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 Act of 2000.” x x x x x x x “ 15. It is, thus, manifest from a conjoint reading of Sections 2 (k), 2 (l), 7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen 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 is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan.” In the instant case, undoubtedly, the age of the revisionist was below 18 years on the date of commission of the offence as discussed above and by this reckoning, the revisionist, was not juvenile on the date of the occurrence in view of Act, 1986. In view of the amendment incorporated in the Act 2000, the revisionist had not completed the age of the 18 years on the date of the occurrence and thus he is entitled to be considered as juvenile even if the claim of juvenility is raised after he had attained the age of 18 years. The revisionist is, accordingly, entitled to the benefits available to a juvenile in conflict with law under the Act 2000. Question No. 2 : 11. From a plain reading of the language of Section 20 of Act 2000 reproduced as above, it is implicit that all proceedings in respect of juvenile pending in any Court on the date on which the Act comes into force, shall be continued in that Court as if the Act 2000 had not been passed. If the Court finds that juvenile has committed an offence, it shall record such finding but pass no sentence against him. Instead of passing any sentence, the Court shall forward the juvenile alongwith the records of the proceedings to the Board. It is the board, which shall pass orders in respect of the juvenile so forwarded by the trial Court in accordance with the provisions of the Act 2000, as if the board had been satisfied on the enquiry under this Act that a juvenile has committed offence. The board may, for any adequate and special reason to be mentioned in the order, review the case and pass an appropriate order in the case of the juvenile. Thus, Section 20 contemplates special provisions in respect of pending cases. 12. In the instant case, the trial has been protracting since 1996 and the prosecution has already examined the witnesses. The statements of the accused persons have also been recorded under Section 313 Cr.P.C. Thus, the trial against the revisionist was already pending on the date when Act 2000 came into force i.e. 1.4.2001. 12. In the instant case, the trial has been protracting since 1996 and the prosecution has already examined the witnesses. The statements of the accused persons have also been recorded under Section 313 Cr.P.C. Thus, the trial against the revisionist was already pending on the date when Act 2000 came into force i.e. 1.4.2001. It would appear from the record that the revisionist for the first time claimed his juvenility on 16.2.2010 and therefore, as contemplated in Section 20, the proceedings in respect of the revisionist shall be continued in the trial Court as if the Act 2000 had not been passed. If the trial Court finds that the revisionist was juvenile on the date of the occurrence and has committed an offence, it shall record such finding. The trial Court, however, instead of passing any sentence in respect of the revisionist forward the revisionist alongwith the proceedings to the Board having jurisdiction. It is the Board which shall pass orders in respect of the revisionist in accordance with the provisions of the Act 2000. 13. It is eloquent from a perusal of the impugned order that after the claim of juvenility so raised by the revisionist before trial Court, the Court did make enquiry in this regard and also took evidence in the form of documentary evidence to determine the age of the revisionist. It would also appear that the trial Court on the basis of matriculation certificate, which is the best piece of evidence to prove the age , stated the age of the revisionist in the impugned order was 17 years, 10 months and 7 days i.e. below 18 years on the date of the occurrence but stopped short of recording a categorical finding. A categorical finding whether the revisionist is a juvenile is absolutely lacking. The impugned order so passed by the trial Court is a sketchy and vague order. To rephrase it, after going through the entire impugned order, it is difficult to comprehend whether the application claiming juvenility by the revisionist was allowed or rejected. 14. Having considered the matter in all its ramifications, I am of the view that the impugned order if allowed to stand would leave the revisionist stranded and may adversely impinge upon his at the final stage of the case. 14. Having considered the matter in all its ramifications, I am of the view that the impugned order if allowed to stand would leave the revisionist stranded and may adversely impinge upon his at the final stage of the case. The trial Court is under a duty to record a clear and categorical finding whether the revisionist is a juvenile or not as required under Section 7-A of the Act 2000. In view of the above discussion the impugned order is not sustainable and accordingly deserves to be set aside. The revision is allowed. The impugned order is set aside. The trial Court is, however, directed to decide the claim of juvenility raised by the revisionist afresh after taking into consideration the observations made in the body of the judgement. Since it is an old case, it is desirable that the claim of juvenility of the revisionist be decided within a period not exceeding one month from the date of production of certified copy of this order before the trial Court. ——————