Research › Browse › Judgment

Supreme Court of India · body

2019 DIGILAW 553 (SC)

Kailash v. State Of Rajasthan

2019-02-08

D.Y.CHANDRACHUD, HEMANT GUPTA

body2019
ORDER 1. Leave granted. 2. The appeal arises from a judgment of a Division Bench of the High Court of Judicature for Rajasthan dated 18 January 2017. The High Court partly allowed D.B. Criminal Appeal No. 150 of 1985 filed by the appellant and, while setting aside his conviction for an offence under Section 302 of the Penal Code, ordered conviction under Section 304 Part II. The appellant was directed to undergo simple imprisonment for four years and to pay a fine of Rs. 2,000. 3. When the appeal came up before this Court on 10 September 2018, a claim of juvenility was raised. This Court, passed the following order: "There will be a direction to the Chief Judicial Magistrate, Tonk, Rajasthan to enquire into the claim made by the petitioner that he was juvenile at the time of commission of offence in 1984 and submit a report to this Court, within three months. The petitioner is directed to produce a copy of this order along with the available records before the Chief Judicial Magistrate, Tonk. List on 14.12.2018." 4. On 14 December 2018, upon receipt of the report of the Chief Judicial Magistrate, Tonk (Rajasthan) dated 5 December 2018, notice was issued to the State of Rajasthan. 5. We have accordingly heard the learned counsel appearing on behalf of the appellant and the learned Standing Counsel for the State of Rajasthan. 6. The report of the Chief Judicial Magistrate notes that F.I.R. 91/1984 relating to the incident was filed on 27 September 1984 against the appellant. Documentary evidence pertaining to the school where the appellant has studied was produced before the CJM. The CJM has also examined the Headmaster of the Government Primary School, Rampura, Dhadkan. The CJM has, on a review of the documentary evidence, come to the conclusion that the date of birth of the appellant is 4 July 1967 and that on the date of the incident, he was less than 18 years of age. 7. Section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines the expression "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 the commission of the offence. Sub-section (1) of Section 7A and Section 20 provide as follows:- "7A. Sub-section (1) of Section 7A and Section 20 provide 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 a 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 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. 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. 8. These provisions have been interpreted in a judgment of a two Judge Bench of this Court in Dharambir vs. State (NCT of Delhi) , (2010) 5 SCC 344 .This Court held thus; "14. 8. These provisions have been interpreted in a judgment of a two Judge Bench of this Court in Dharambir vs. State (NCT of Delhi) , (2010) 5 SCC 344 .This Court held thus; "14. Proviso to sub-section (1) of Section 7-A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines "juvenile" or "child" to mean a person who has not completed eighteen year of age, had always been in existence even during the operation of the 1986 Act. 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 reaised 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." 9. In view of the above position of law, there can be no manner of doubt that the appellant was a "juvenile in conflict with law" on the date of the incident. 10. The appellant has undergone imprisonment for almost three years. He is nearly 51 years of age. 11. In the circumstances, we dispose of the appeal by directing that the appellant be released from custody on the sentence undergone by him. 12. 10. The appellant has undergone imprisonment for almost three years. He is nearly 51 years of age. 11. In the circumstances, we dispose of the appeal by directing that the appellant be released from custody on the sentence undergone by him. 12. The appeal is, accordingly, disposed of. 13. Pending application(s), if any, shall stand disposed of.