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2014 DIGILAW 210 (ALL)

BALWANT SINGH v. STATE OF U. P.

2014-01-17

BHARAT BHUSHAN

body2014
JUDGMENT Hon’ble Bharat Bhushan, J.—This Criminal Revision is directed against the order dated 17.2.2006 passed in Sessions Trial No. 248 of 2004 (State v. Balwant Singh and others) under Sections 364 IPC, P.S. Kotwali, District Basti passed by Additional Sessions Judge, FTC Court No. 3, whereby the application of accused/revisionist Balwant Singh for declaring him juvenile has been rejected. 2. As per the office report dated 8.7.2013, notices were issued to the revisionist Balwant Singh to engage another counsel. Notices have been served personally but no one has appeared on behalf of the revisionist and opposite party No. 2 even in second reading of cause list. Learned AGA is present. As this criminal revision is listed peremptorily, this Court is constrained to decide this criminal revision with the help of learned AGA only. 3. Revisionist Balwant Singh is being prosecuted under Section 364 IPC, P.S. Kotwali, District Basti. During the course of trial, revisionist claimed that he was born on 15.8.1984. The date of occurrence is 22.11.2000 as such he was merely 16 years and three months on the date of occurrence. Therefore, he should be tried under the provisions of Juvenile Justice Act, 1986. 4. Learned trial Court on the basis of High School and Intermediate Certificates came to the conclusion that the date of birth of revisionist is indeed 15.8.1984 but at the time of alleged occurrence i.e. on 22.11.2000 the provision of ‘Juvenile Justice ‘Act 1986’ (in short ‘Act 1986’) were in vogue wherein the male offender could only claim juvenility if he had not attained the age of 16 years. As the accused/revisionist was more than 16 years of age at the time of alleged occurrence, he was denied the benefit of Act, 1986. Aggrieved the present Criminal Revision has been preferred by the revisionist. 5. According to ‘’Act 1986'’ Juvenile means a boy who had not attained the age of 16 years or a girl who had not attained the age of 18 years. This provision was substantially changed after promulgation of new Act i.e. Juvenile Justice (Care and Protection of Children) ‘Act 2000’ (in short ‘’Act 2000'’) which provides that ‘Juvenile’ or ‘Child’ means a person who had not attained the age of 18 years. 6. This provision was substantially changed after promulgation of new Act i.e. Juvenile Justice (Care and Protection of Children) ‘Act 2000’ (in short ‘’Act 2000'’) which provides that ‘Juvenile’ or ‘Child’ means a person who had not attained the age of 18 years. 6. It is apparent that the revisionist was not juvenile in terms of provision of ‘Act 1986’ but the impugned order dated 17.2.2006 shows that the Trial was still pending after promulgation of the ‘Act 2000’ with effect from 1.4.2001. The Apex Court in the case of Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 , considered the provisions enshrined in Section 20 of the ‘Act 2000’ and Rule 62 of the Juvenile Justice (Care and Protection of Children) Rules 2007 (in short ‘Rules 2007’) and held thus : “(a) The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court. (b) The 2000 Act would be applicable in a pending proceeding in any Court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001.” 7. Subsequent to the decision in Pratap Singh’s Case (supra), certain substitution and amendments were made into the ‘Act 2000’. The proviso and explanation in Section 20 of the ‘Act 2000’ were incorporated by the amending Act No. 33 of 2006. It now deals with the cases of Juveniles pending on 1.4.2001 who had not attained the age of 18 years at the time of commission of offence. Amendment provides that all pending cases would include not only the trial but even the subsequent proceedings by way of revision or appeal and in such cases determination of juvenility of accused would be in terms of Clause (I) of Section 2. Even if, accused ceased to be juvenile on or before 1.4.2001, provision of ‘Act 2000’ would apply as if the said provision had been in force when alleged offence was committed. Even if, accused ceased to be juvenile on or before 1.4.2001, provision of ‘Act 2000’ would apply as if the said provision had been in force when alleged offence was committed. Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by regular Courts and also empowers the Court to set aside the sentences imposed and forward the case to the concerned Juvenile Justice Board for passing the sentence in accordance with the provisions of ‘Act 2000’. By these amendments, provisions of ‘Act 2000’ were extended to the juvenile who had not completed 18 years of age on or before the applicability of ‘Act 2000’. 8. The Full Bench of Apex Court in Hari Ram v. State of Rajasthan and another, (2009) 13 SCC 211 , examined the impact and effect of introduction and amendments carried out in ‘Act 2000’ and held thus : “31. None of the aforesaid decisions are of much assistance in deciding the question with regard to the applicability of the definition of juvenile in Section 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby the 34 provisions of the said Act were extended to cover juveniles who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1.4.2001 (Emphasis supplied). The effect of the proviso to Section 7-A introduced by the Amending Act makes it clear that the claim of juvenility may be raised before any Court which 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 the Act and the Rules made thereunder which includes the definition of Juvenile in Section 2(k) and 2(l) of the Act even if the Juvenile had ceased to be so on or before (emphasis supplied) the date of commencement of the Act. The said intention of the legislature was reinforced by the amendment effected by the said Amending Act to Section 20 by introduction of the Proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any Court the determination of juvenility of such a juvenile has to be in terms of clause 2(l) even if the juvenile ceases to be on or before the date of commencement of this Act (emphasis supplied) and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. 32. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed 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 a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the 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. ................................. ................................ 37. Of the two main questions decided in Pratap Singh’s case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognisance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, where under the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, where under the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. The law as now crystallised on a conjoint reading of Sections 2(k), 2(l), 7A, 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 1st April, 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. ................................ ................................ 41. 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. “ 9. In the present case, there is no controversy that the revisionist was about 16 years of age on the date of commission of alleged offence and had not completed 18 years when the ‘Act 2000’ came into force. In view of Section 2(k), 2(i) and Section 7 A read with Section 20 of the ‘Act 2000’, the provisions of said Act would be applicable to the case of revisionist as he was juvenile on the date of occurrence in view of law laid down in Pratap Singh’s case (supra), Hari Ram’s case (supra) and the amendments carried out in the ‘Act 2000’. In view of above, the impugned order passed by learned Additional Sessions Judge, cannot be sustained. 10. Under the circumstances, the criminal revision is allowed. The order dated 17.2.2006 is hereby set aside. In view of above, the impugned order passed by learned Additional Sessions Judge, cannot be sustained. 10. Under the circumstances, the criminal revision is allowed. The order dated 17.2.2006 is hereby set aside. The matter is remitted to the concerned Court for fresh order in accordance with law within a period of two months from the date of receipt of copy of this order. The Court is directed to pass the order with regard to the juvenility of revisionist in the light of this judgement. Let a copy of this order be sent to the Court below within a fortnight for compliance.