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2014 DIGILAW 902 (PAT)

Upendra Prasad @ Sanjay Kumar v. State of Bihar

2014-08-21

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
Navaniti Prasad Singh, J. – On 31.3.1988 one Baby, the daughter of the informant, was found brutally killed. Her neck had been cut almost into two in her residence. The appellant, who happens to be the step cousin and allegedly was living in the house, was seen fleeing away from the house and as such charged with the said crime. There was no eye witness and upon proof of circumstances that he was last seen with the deceased and was seen shortly thereafter running away from the house on a bicycle, he has been convicted vide judgment and order of conviction and sentence dated 26.2.1991 by the learned 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 61 of 1989 and having been found guilty for having committed murder of Baby has been sentenced under Section 302 of the Indian Penal Code, imprisonment for life. Hence the appeal. 2. While the appellant was questioned under Section 313 Cr.P.C. by the trial court on 12.12.1990, he disclosed his age as 17 years which would have made him undisputedly less than 16 years on 31.3.1988 when the offence was said to have been committed. However, the court assessed his age to be 20 years and, thus, treated him as an adult/major. 3. After the appeal was admitted, Shri Rajendra Narayan, learned Senior Counsel, in support of appeal, submits that the entire trial stands vitiated on the ground that the appellant was a juvenile in terms of the Juvenile Justice Act, 1986 (hereinafter referred to as the Act of 1986) which was enforced with effect from 2.10.1987. Section 2 (h) defines juvenile to be a boy who had not attained the age of 16 years. He accordingly, submitted that on the date when the offence is alleged to have been committed i.e. 31.3.1988, the appellant was a juvenile and if that be so, in terms of Act of 1986, he could not have been tried much less convicted. He further submitted that in any view of the matter the Act of 1986 was repealed and replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act of 2000). Here a juvenile, as defined by Section 2 (k), means a boy below the age of 18 years. Here, under this Act, he would be treated as a juvenile in conflict with law. Here a juvenile, as defined by Section 2 (k), means a boy below the age of 18 years. Here, under this Act, he would be treated as a juvenile in conflict with law. Again, Act of 2000 provides that no juvenile in conflict with law can be tried, convicted or sentenced. In both, Act of 1986 and Act of 2000, there is special provision with regard to matters which are pending when those Acts came into force. In the Act of 1986, it is Section 26 and in the Act of 2000, it is Section 20. Both the Sections provide that if any proceeding was pending, when the Act came into force, it would be continued as if the Act was not enforced but the person who may be juvenile will not be sentenced. In other words, he can be found guilty but for sentence he would be sent to Juvenile Board. 4. Mr. Rajendra Narayan, accordingly, submits that in view of Section 20 of the Act of 2000, the appellant having been found guilty cannot be sentenced but that would leave stigma and as such he sought leave to argue the appeal on merits to show that the appellant was wrongly convicted and it was a case of clear acquittal. We have considered the matter and we think it is not necessary to grant any such leave. The reason being that the offence was committed on 31.3.1988 i.e. after the Act of 1986 came into force, therefore, neither Section 26 of the Act of 1986 would apply nor Section 20 of the Act of 2000 would apply, as the trial itself would stand vitiated in terms of the provisions of Act of 1986 itself. Act of 1986, like it successor the Act of 2000, prohibits trial of juvenile in conflict with law. It was not a proceeding pending prior to 1986. Offence was committed and trial initiated both in the year 1988. Thus, if upon finding, this Court comes to the conclusion that the appellant was juvenile in terms of the Act of 1986 on the day i.e. 31.3.1988, all proceeding of the trial court stood vitiated. The matter had to be referred to the Juvenile Justice Board, which was alone competent to deal with the matter. Consequently, the conviction and the sentence would stand vitiated. 5. The matter had to be referred to the Juvenile Justice Board, which was alone competent to deal with the matter. Consequently, the conviction and the sentence would stand vitiated. 5. From the records, it appears that on behalf of the appellant an affidavit was filed enclosing therewith his matriculation certificate issued by the Bihar School Examination Board. This was granted on 21.7.1987 i.e. long before the occurrence and this shows that his date of birth is 25th May, 1973 that would make him about 14 years, 10 months on the date of occurrence i.e. on 31.3.1988 and he clearly was a juvenile in terms of the Act of 1986 itself. This Court, on the basis of this plea, referred the matter to the Juvenile Justice Board, Muzaffarpur and after making inquiry and verifying the genuineness of the certificate, the Juvenile Justice Board recorded a finding that on the date of occurrence i.e. 31.3.1988, the appellant was 14 years 10 months and 6 days old only as per the matriculation certificate. That, in our view, concludes the matter. Once, it is held that the appellant was juvenile on 31.3.1988 and the Act of 1986 having come into force with effect from 2nd October, 1987, criminal courts were incompetent to try the appellant. The matter ought to have been referred to the Juvenile Court in terms of Section 8 of the Act of 1986 and thereafter, the matter would have been dealt exclusively by the Juvenile Justice Board/Court and in no case, the matter could have been taken up by the ordinary criminal courts and as such, we have no option but to hold that the entire trial, conviction and sentencing of the appellant stood vitiated and is void ab initio in terms of Act of 1986 itself. If that be so, then, Act of 2000 has no application at all. 6. We, accordingly, have no option but to allow this appeal and hold that not only the sentence, but the conviction and the trial of the appellant was vitiated in law. It would be of no effect. They are all nullity. They are accordingly, all set aside. The appellant is relieved from the bail bonds. 7. 6. We, accordingly, have no option but to allow this appeal and hold that not only the sentence, but the conviction and the trial of the appellant was vitiated in law. It would be of no effect. They are all nullity. They are accordingly, all set aside. The appellant is relieved from the bail bonds. 7. We may also note that in terms of Section 36 of the Act of 1986 as also Sections 19 and 20 of the Act of 2000, no part of the proceeding, as against the appellant, would be made public. In case, any accredited law reporter is anxious to report this judgment, they would do so, by substituting the name, parentage and address of the appellant so as not to disclose his identity.