JUDGMENT
F.I. Rebello, J.
Page 1648
1. The Appellant herein has been convicted for the offence punishable under Sections 364, 302 read with Section 34 of the I.P.C. and consequently sentenced to life imprisonment as also to pay fine as set out in the order of the learned Additional Sessions Judge, Greater Mumbai in its order dated 17th June, 2003. At the outset the learned Counsel submits that he is not challenging the conviction of the Appellant under Section 302 and Section 364 read with Section 34 of the Indian Penal Code.
2. The Appellant who has preferred this Appeal has moved this Application being Criminal Application No. 420 of 2008, contending that he is “Juvenile in conflict with law” and consequently the sentence imposed on him will have to be considered in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 with the Juvenile Justice (Care & Protection of Children) Amendment Act, 2006, which hereinafter referred to as the Juvenile Justice Act, 2000 and Juvenile Justice Amendment Act, 2006 respectively. The learned Counsel has placed reliance on the Pass-port issued by the Government of India wherein the date of birth is shown as 16th August, 1978, similarly birth certificate issued by the Municipal Corporation of Greater Mumbai, wherein also the date of birth is shown as 16th August, 1978 as also the School Leaving Certificate wherein again the date of birth is shown as 16th August, 1978. The incident is alleged to have taken place on 5th July, 1995 at about 3.30 p.m. The judgment was pronounced on 17th June, 2003. The applicant on the date of the offence has completed 16 years 10 months and 20 days.The identity of the Appellant is not disputed.
The questions that we are called upon to answer are two fold namely:
(1) whether the present application is maintainable as at that time the Appellant committed the offence admittedly he was less than 18 years and consequently whether the provisions of Juvenile Justice Act, 2000 and Juvenile Justice Amendment Act 2006 will apply to him;
(2) If the Juvenile Justice Amendment Act, 2006 is applicable considering that the Appellant has already undergone more than 3 years of sentence of imprisonment whether this Court should refer the matter to the Board or set the Appellant at liberty.
3. For the purpose of consideration of the contentions raised, we may note that at the time the Appellant was convicted what was in force was Juvenile Justice Act, 2000 and when the alleged offence occurred the Appellant was covered by the provisions of the Juvenile Justice Act, 1986.
Page 1649
4. To understand the issues firstly we may briefly refer to the law as it stood before the Juvenile Justice Act, 2000. We may gainfully refer to the judgment of the Supreme Court in Bhola Bhagat v. State of Bihar . That was a judgment dealing with the issue as to at what stage the plea of a person convicted for an offence and raising a plea that he was a juvenile could be considered. The Supreme Court considering its earlier judgment was pleased to hold as under:
We would like to re-emphasis that when a plea is raised on behalf of an accused that he was a “child” within the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt bout the age as claimed by the accused, to hold an inquiry itself, for determination of the q;question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially-oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other.
The next judgment which we shall advert to is the judgment in the case of Upendra Kumar v. State of Bihar (2005) 3 S.C.C. 592. The issue involved in that case was what would be the consequences if the Court comes to the conclusion that the person was a Juvenile at the time he committed the offence. The issue was raised under the Juvenile Justice Act, 2000. The learned Supreme Court considering the provisions of the Act in paragraph 5 held that if a Court arrives at the conclusion that the Juvenile has committed an offence and recorded such a finding has to pass orders in conformity with the provisions of the Act of 2000. The Act had come into force on 1st April, 2001. The Appellant there was convicted for an offence under Section 302 on 3rd October, 1996. The contention was that the Appellant was a juvenile both on the date of the offence and the date of production in the Court which was the same namely 10th March, 1995.
5. Parliament thereafter enacted, The Juvenile Justice (Care and Protection of Children) Act, 2000. The Statement of Objects and Reasons indicates that it was enacted to give effect the Convention on the Rights of a Child which was adopted by the General Assembly of the United Nations and the constitutional mandate visualised under Articles 15, 39, 45 and 47. In the statement of objects and reasons it was set out that the Act proposes amongst others to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults; to minimise the stigma and in keeping with the developmental needs of the juvenile or the child. To minimise the stigma and in keeping with the developmental needs of the juvenile or the child and to separate the Bill into two parts- one for juveniles in conflict Page 1650 with law and the other for the juvenile or the child in need of care and protection; to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.
The Act, therefore, seeks to treat juvenile delinquents differently from adults based on the recognition by the comity of nations that ‘juvenile in conflict with law’ are a class by themselves.
6. Before we go into the provisions of the Act, we may refer to the judgment of the Constitution Bench of the Supreme Court in Pratap Singh v. State of Jharkhand and Anr. . There were two questions before the Supreme Court for consideration, which were (a) Whether the date of occurrence will be the reckoning date of determining the age of the alleged offender as Juvenile offender or the date when he is produced in the Court/competent authority; (b) Whether the Act of 2000 will be applicable in the case a proceeding initiated under 1986 Act and pending when the Act of 2000 was enforced with effect from 1-4-2001. The questions were answered as under:
(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.
The Judgment in Pratap Singh (supra) was delivered by the Supreme Court on 2nd February, 2005.
The Delhi High Court in the matter of Juvenile Justice Act, 2000 had issued several directions. Pursuant to these directions as also various representations, Parliament was pleased to amend the Juvenile Justice Act, 2000 by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. We shall have to consider and determine the effect of the Amendment Act 33 of 2006, on the judgment of the Supreme Court in the case of Pratap Singh (supra). In that context we shall now examine the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, with the Juvenile Justice Amendment Act, 2006. We may gainfully refer to some clauses in the Statement of Objects and Reasons, which are now herein below reproduced:
(ii) to clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law.
(iii) to remove doubts regarding the relevant date in determining the juvenility of a person and applicability of the Juvenile Justice Act.
(iv) to have a procedure laid down where claim of juvenility is raised before any Court.
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It is not necessary to refer to the other clauses of the Statement of Objects and Reasons. The amendment to the Juvenile Justice Act 2006 received the assent of the President on 22nd August, 2006.
8. Section 1(4) which was inserted by the Juvenile Justice Amendment Act, 2006 reads as under:
(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 such other law.
Juvenile is defined under Section 2(k) as under:
“Juvenile” or “child” means a person who has not completed eighteenth year of age.
Next relevant definition is Section 2 (l) which defines “Juvenile in conflict with law”. “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.” This definition was substituted by Juvenile Justice Amendment Act, 2006 for the previous definition.
For the purpose of answering the controversy and also discussing the issue, gainful reference may also be made to Section 7-A which was again introduced by the Juvenile Justice Amendment Act, 2006 and which reads as under:
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 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.
(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.
A perusal of the proviso (1) to Section 7-A,therefore, makes it clear that the claim of juvenile can be raised before a Court at any stage even after final disposal of the case and even and even if the juvenile had ceased to be so on or before the date of commencement of the Act under Section 7-A the relevant date is the date of commission of the offence. This would make it clear that the Court deciding a claim of a ‘juvenile’ is duty bound when such an Page 1652 application is made and if there be prima facie material, to examine the claim and decide the same. The other relevant provision is Sub-section (2) by which the Court is mandated if it comes to the conclusion that the person was a juvenile on the date of commission of the offence to 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. In other words this provision makes it clear that even if a juvenile has been sentenced and if the Court comes to the conclusion that the person falls within the definition of juvenile in conflict with law on the date of commission of the offence the sentence imposed is deemed to have no effect and the juvenile has to be referred to the Board for appropriate orders. Section 15 is the provision empowering the board to pass orders regarding a juvenile in conflict with law. We need not refer to the various other provisions. Suffice it to say that any steps taken under Section 15 can be for a maximum period of 3 years. These are the beneficial provisions made applicable to juvenile in conflict with law as a part of the reformatory process of sentencing. Rehabilitation rather than incarceration is the Parliamentary mandate.
9. Section 20 and the explanation thereto has an important bearing on the case. The Section reads as under:
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 (l) 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.
Under Section 20, therefore, a provision is made in respect of proceedings which were pending when the Act came into force, which includes trials, appeals and revisions to continue the proceedings before the Court as if the Act had not come into force. Further, though the proceedings will continue however, on the Court coming to the conclusion in the pending proceedings including an Appeal that a juvenile has committed an offence if the juvenile ceases to be a juvenile on or before the date of commencement of this Act, the provisions of the Act shall apply as if the said provisions had Page 1653 been in force, for all purposes and at all material times when the alleged offence was committed. The Court if it comes to the conclusion that the offence is committed by a juvenile must forward the juvenile to the Board for passing orders. The Board has power to review a case and pass appropriate orders. If this Section is read with Section 7-A then any sentence if it had been imposed by a Court shall be of no effect and it is in that context the power to review and pass appropriate orders.
10. On a conspectus and consideration of all these provisions it becomes clear that what is relevant is the date of offence and if that person falls within the definition of ‘juvenile in conflict with law’ then irrespective of whether proceedings are pending or the proceedings are in appeal or revision or even if proceedings had been closed and if an application is made by the juvenile who is undergoing a sentence, then on a proper reading of Section 7-A, together with Section 20, the provisions of the Act are applicable to such ‘juvenile in conflict with law.’ To that extant the judgment in Pratap Singh (Supra) considering the Amendment of 2006 will not apply to proceedings in respect of a ‘juvenile in conflict with law’ after the Juvenile Justice Amendment Act, 2006. The opening words of Section 20, therefore, clearly indicate that the definition of ‘juvenile’ is retrospective and the definition of juvenile under the Juvenile Justice Act of 2000 will be the applicable law. In other words, if the child or juvenile was less than 18 years on the date of the commission of the offence, the juvenile will be covered by the provisions of the Act of 2000 together with the 2006 amendment.
11. In the instant case we are dealing with an application where there is a proceeding pending by way of appeal, in respect of the ‘juvenile in conflict with the law’. It is, therefore, open to this Court to consider the application as these are pending proceedings bearing in mind the beneficial provisions of Section 7A and Section 20 of the Act of 2006. Having so considered we are of the opinion that the claim of such an applicant will have to be considered.
12. The State of Maharashtra has framed what are known as Maharashtra Juvenile Justice (Care & Protection of Children) Rules 2002 by Notification dated 30th July, 2002. Rule 6 is the relevant provisions in so far as the issue before us is concerned. Rule 6(5) reads as under:
6.(5) In every case concerning a juvenile, the Board shall either obtain —
(i) a birth certificate given by a corporation or a municipal authority; or
(ii) a date of birth certificate from the school first amended; or
(iii) matriculation or equivalent certificates, if available; and
(iv) in the absence of (i) to (ii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board.
Considering Section 7A of the Act and Rule 6(5) of the Rules in determining whether a person is a juvenile the Board has to consider the said Page 1654 documents. In our opinion we will have no difficulty in applying the same principle in considering whether a person is a juvenile while considering an application under Section 7A, in a pending appeal considering the provisions of Section 6 (2) of the Act which reads as under:
6(2). The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceedings comes before them in appeal, revision or otherwise.
Bearing in mind this provision we therefore, would have no difficulty in applying the provisions of Rule 6 (5) for determining as to whether a person is a juvenile.
13. We may also point out that another Bench of this Court was considering an application by a juvenile in conflict with law in Saheb Sopan Kale Saheb v. The State of Maharashtra, Criminal Application No. 3297 of 2005 dated January 10, 2008 (unreported judgment) where the plea raised was that as on the date of the offence as the applicant was a juvenile he could not have been sentenced but should have been ordered to be produced before the Board. The learned Bench accepted the contention urged on behalf of the Applicant before this Court.
14. Considering the provisions of the Juvenile Justice Act, the law will have to be now considered not in the context of what was said either in the majority or concurring judgment in Pratap Singh (supra), but on the touchstone of Juvenile Justice Act, 2000 as amended by the amendment Act of 2006.
The Court now has to consider (i) the age of the juvenile/child on the date of commission of the offence; (ii) if such an application is made, it has to be considered in a case where a proceeding is pending and even in a case where no proceeding is pending, but where where the applicant is undergoing imprisonment having being convicted by a Court.
15. The questions framed are answered as under:
(a) The Application is maintainable if the juvenile or child was below 18 years on the date of commencement of the offence.
(b) As the appeal is pending considering Section 6 (b) the Court itself can exercise the powers of the Board, where such powers can still be exercised.
16. On the facts of the present case we have to consider the documents placed before us which are the birth certificate, School Leaving Certificate and the Passport. The Passport is an official document issued by the Government of India. The birth certificate is a document which can be considered in terms of Rule 6(5) of the Rules.
17. The offence in the instant case was committed on 5th July, 1995. The applicant is in custody/jail from 5th July, 1995 and considering that this Court can exercise the powers under Section 6(2) of the Act in our opinion, this would be a fit case where we direct the Applicant who has already completed more than 3 years in jail to be set forth at liberty.
Page 1655
18. Hence the following directions:
(a) The conviction of the Appellant/Applicant under Section 302 of I.P.C. is confirmed.
(b) In so far as sentence is concerned, as the Appellant/Applicant has already undergone imprisonment of more than 3 years, the maximum period for which an order could be made as provided under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 the Appellant/Applicant is directed to be released forthwith if not required in any other matter.
(c) Appeal disposed of accordingly. Application is allowed.