Patna High Court - Orders
Shamshad vs The State Of Bihar Through The Principal ... on 16 May, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL WRIT JURISDICTION CASE NO.302 OF 2014
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Shamshad, son of Abdul Waseer @ Waseruddin @ Abdul
Bashir, Resident of Mohalla - Maulana Chak, P.S. - Tatarpur,
District - Bhagalpur, at present under custody Central Jail,
District - Bhagalpur.
.... .... Petitioner
Versus
1. The State of Bihar through the Principal Secretary,
Department of Home, Govt. of Bihar, Patna
2. The Principal Secretary, Department of Home, Govt. of
Bihar, Patna.
.... .... Respondents
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Appearance :
For the Petitioner :
Mr. Fakhruddin Ali Ahmad, Advocate
Ms. Anjum Perween, Advocate
Mr. Gautam Kumar Yadav, Advocate
For the S t a t e : Mr. Prabhu Narayan Sharma, A.C. to A.G.
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
4 -05-2014 "You know, when I go to the juvenile
detention centers and prisons, I see people,
who can't read now. And I know that when
they leave those prisons and those detention
centers, they're not going to be able to make it
in our society."
Walter Dean Myers, Amercian Writer
on children issues
By judgment and order, dated 27.06.1986,
passed, in Sessions Trial No. 253 of 1981, by the learned
Additional Sessions Judge VI, Bhagalpur, the present
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 2
petitioner, namely, Shamshad, was convicted, along with
some others, under Section 302 read with Section 149 and
Section 148 of the Indian Penal Code. Following their
conviction under Section 302 read with Section 149 of the
Indian Penal Code, the present petitioner and other co-
convicts were sentenced to suffer imprisonment for life
and, consequent upon their conviction under Section 148 of
the Indian Penal Code, the present petitioner and the other
co-convicts were sentenced to undergo rigorous
imprisonment for two years each.
2. The prosecution's case, as unfolded at the
trial, was, in brief, thus :
(i) On 06.01.1981, at about 8.15 PM, when the
informant, Abdul Jalil (PW 6), was in his house, he heard
hulla "Bachao, Bachao" (save me, save me) and when he
came out of his house and proceeded forward, he saw the
present petitioner and other co-accused persons dragging
informant's cousin, Md. Atahar, and assaulting him by
means of daggers and when the informant raised alarm,
the accused ran towards him in order to assault him and
when Md. Mansoor (PW 3), Md. Shamim (PW 2) and others
reached there, the accused fled away leaving Md. Atahar in
injured condition, whereafter, the injured was taken to
hospital and while being carried to hospital, Md. Atahar
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 3
disclosed the names of the petitioner and others, as
persons who had given him blow by daggers, and, on
reaching hospital, Md. Atahar succumbed to his injuries.
(ii) Fardbayan of the informant (PW 6) was
recorded, on 06.01.1981, at 11.45 P.M. Treating the said
fardbayan as First Information Report, Mojahidpur Police
Station Case No. 5 of 1981, under Sections 302/149/148 of
the Indian Penal Code, was registered against the present
petitioner and his co-accused and, on completion of
investigation, a charge sheet was submitted against all of
them accordingly.
(iii) At the trial, the learned trial Court found,
the present petitioner and the other co-accused guilty of
the offences under Section 302 read with Section 149 of
the Indian Penal Code. The learned trial Court also found
the present petitioner and the other co-accused guilty of
the offence under Section 148 of the Indian Penal Code.
Following the findings, so arrived at, the learned trial Court
convicted the present petitioner and the other co-accused
accordingly and passed sentences against them as
mentioned above.
3. Aggrieved by the conviction and the
sentences, so passed, all the convicted persons preferred
appeal, which gave rise to Criminal Appeal Nos. 334 and
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 4
335 of 1986. By judgment and order, dated 15.09.1997,
both the appeals were dismissed by this Court.
4. Though the co-appellant, admittedly, went,
in appeal, to the Supreme Court, the present petitioner did
not prefer any appeal and continued to suffer
imprisonment pursuant to the sentences passed against
him. The appeal, which the co-convicts of the present
petitioner, has preferred in the Supreme Court, came to
be, eventually, dismissed. The conviction of the present
petitioner and his co-convicts as well as the sentences
passed against them, thus, attained finality.
5. While undergoing the sentence of
imprisonment as mentioned above, the petitioner made a
representation, on 10.05.2012, under Section 64 of the
Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as 'the Act of 2000'), addressed to
the Principal Secretary, Department of Home, Government
of Bihar, claiming that he was juvenile on the date of the
occurrence and he may, therefore, be released by the
Government in exercise of its power under Section 64 of
the Act of 2000.
6. The representation, so made by the
petitioner, did not receive any response. The petitioner,
then, came to this Court with an application, made under
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 5
Articles 226 and 227 of the Constitution of India, on the
ground that he was juvenile in conflict with law on the date
of the alleged occurrence and it was the obligation of the
State Government, under Section 64 of the Act of 2000, to
review his case, determine the issue of his juvenility in
terms of the provisions of Rule 98 read with Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules,
2007 (hereinafter referred to as 'the Rules of 2007'), and,
then, pass appropriate order directing his release inasmuch
as he was a juvenile in conflict with law, on the date of the
occurrence and his period of detention, while undergoing
sentences, has exceeded the maximum period of three
years prescribed as punishment by Section 15 of the Act of
2000. The writ petition gave rise to Criminal Writ No. 838
of 2012.
7. Upon hearing learned Counsel for the present
petitioner and the learned Government Counsel, a Division
Bench of this Court passed an order, on 18.07.2013,
directing the respondents to hold inquiry and determine,
within six months from the date of receipt/production of a
copy of the aforesaid order, the question of juvenility of the
present petitioner on the date of the occurrence. While so
issuing the direction, by order, dated 18.07.2013, in
Criminal Writ No. 838 of 2012, the Division Bench also
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 6
made it clear that for the purpose of determination of the
juvenility of the present petitioner, respondent No. 2,
namely, Principal Secretary, Department of Home,
Government of Bihar, Patna, may take assistance of the
Medical Board and pass an order as to whether the
petitioner was or was not a juvenile on the date of the
occurrence (i.e., 06.01.1981).
8. Following the order, dated 18.07.2013,
passed in Criminal Writ No. 838 of 2012, the age of the
petitioner, as on the date of the occurrence (i.e.,
06.01.1981), was examined by a Medical Board, which opined that the present petitioner was, on 06.01.1981, between the age of 17 and 22 years.
9. Based on the medical opinion so given, respondent No. 2 passed an order, dated 24.02.2014, declaring that on the date of the occurrence (i.e., 06.01.1981), the present petitioner was a juvenile under the provisions of the Act of 2000.
10. Despite the fact that respondent No. 2 declared the present petitioner to be a juvenile, no consequential order was passed with regard to his release. The petitioner has, therefore, returned to this Court with the present application made under Articles 226 and 227 of the Constitution of India.
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 7
11. Though by order, dated 24.02.2014, aforementioned, respondent No. 2 has declared the petitioner a juvenile as on the date of the occurrence (i.e., 06.01.1981), the fact remains that the petitioner has already undergone almost seven years of imprisonment; whereas the maximum period of imprisonment prescribed by Section 15 of Act of 2000, is three years and any further detention would, according to the present petitioner, amount to his illegal detention inasmuch as he ought to be directed to be released by the Government by invoking its powers under Section 64 of the Act of 2000.
12. The petitioner, therefore, with the help of this writ petition, prays that the respondents be directed to pass appropriate order for the immediate release of the petitioner and/or pass such other order or orders as the petitioner may be entitled to.
13. Appearing on behalf of the petitioner, Mr. Fakhruddin Ali Ahmad, learned Counsel, has submitted that Section 64 of the Act of 2000, imposes obligation on the State Government to direct that a juvenile in conflict with law, who is undergoing any sentence of imprisonment at the commencement of the Act of 2000, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in a fit institution in such manner as the State Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 8 Government thinks fit for the remainder of the period of the sentence.
14. When, therefore, points out Mr. Verma, the petitioner had made a representation, addressed to respondent No. 2, seeking to invoke the Government's powers under Section 64 of the Act of 2000, respondent No.2 was obliged to determine the question of juvenility of the petitioner and, then, pass appropriate order as regards his release, but as respondent No. 2 has not responded to the petitioner's representation in the manner as he was warranted, by law, to do, the petitioner, having no option, filed earlier a writ petition, which gave rise to Criminal Writ No. 838 of 2012, and an order was passed therein, on 18.07.2013, directing respondent No.2 to determine the question of the petitioner's juvenility and taking, for this purpose, assistance of the Medical Board and, then, pass an order as to whether the petitioner was or was not a juvenile on the date of the occurrence (i.e., 06.01.1981) and, thereafter, though respondent No.2 passed an order, on 24.02.2014, holding the petitioner a juvenile in conflict with law on 06.01.1981 (i.e., the date of the occurrence), respondent No.2 stopped short of directing release of the petitioner, though the petitioner had been in custody for a period longer than three years, which is the maximum Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 9 period to which a juvenile in conflict with law can be sentenced to in the light of the provisions of Section 15 of Act of 2000.
15. Resisting the writ petition, Mr. Prabhu Narayan Sharma, learned Government Counsel, submits that under sub-Section (1) of Section 6 of the Act of 2000, the power to determine the age of a person, as a juvenile in conflict with law, has been exclusively vested in the Juvenile Justice Board and, by virtue of sub-Section (2) of Section 6 of the Act of 2000, even a High Court and/or the Court of Session may exercise the same power, which has been conferred on the Juvenile Justice Board by or under the Act of 2000, when there is an appeal, revision or otherwise.
16. In the case at hand, the determination of age of the petitioner by respondent No. 2, namely, Principal Secretary, Department of Home, Government of Bihar, Patna, is, according to the learned Counsel for respondents, beyond the competence of respondent No. 2 and, on the basis of such a determination of age, no further direction, under Section 64 of the Act of 2000, would have been valid and that even this Court, while making the order, dated 18.07.2013, merely directed respondent No. 2 to determine whether the present Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 10 petitioner was juvenile on the date of the occurrence (i.e., 06.01.1981) or not and had not directed that on the basis of his finding of age, the Government shall make necessary order under Section 64 of the Act of 2000, though such a prayer was made.
17. Repelling the submissions made on behalf of the respondents, Mr. Fakhruddin Ali Ahmad, learned Counsel, submits that under Section 64 of Act of 2000, the State Government has been given the power to review the case of a juvenile in conflict with law for the purpose of ensuring that if he is undergoing sentence of imprisonment, he be sent, in lieu of undergoing such sentence, to special home or be kept in an appropriate institution in the manner as the State Government thinks fit.
18. The power so given to the State Government by Section 64 of the Act of 2000, as indicated above, carries with it, according to Mr. Fakhruddin Ali Ahmad, the power to determine the age of a convicted person undergoing imprisonment as a result of the sentence of imprisonment passed against him and, for this purpose, Rule 98 read with Rule 12 of the Rules of 2007, empowers the State Government, too, to determine if a person was juvenile on the date, when he is alleged to Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 11 have committed an offence.
19. The fact that the present petitioner, amongst others, intentionally put to death Md. Atahar by assaulting him with deadly weapons is not in dispute inasmuch as the conviction of the present petitioner has not been challenged after the petitioner's appeal stood dismissed by the High Court, on 15.09.1997.
20. It needs to be borne in mind that the facts, which, finally, emerge from the materials on record, are thus;
(i) The occurrence, which led to the conviction of the present petitioner, took place on 06.01.1981. He was convicted on 27.06.1986 under Sections 302 read with Section 149 of the Indian Penal Code and also under Section 148 of the Indian Penal Code and his appeal was dismissed by the High Court, on 15.09.1997, upholding his conviction and also the sentences passed against him.
21. Thus, the present petitioner's conviction attained finality, on 15.09.1997, and so were the sentences passed against him; whereas the Act of 2000, came into force on 01.04.2001.
22. Thus, before the Act of 2000, came into force, the conviction of the present petitioner and the sentences passed against him, including the sentence of Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 12 imprisonment for life, had attained finality.
23. The question, therefore, is: whether the petitioner, whose conviction and the sentences passed against him, had attained finality before the Act of 2000 came into force, can be still held to be covered by Section 64 of the Act of 2000?
24. In order to answer the question posed above, let us, first, come to the question as to who is a juvenile in conflict with law within the meaning of the Act of 2000.
25. In order to appreciate the expression juvenile in conflict with law, one has to clearly understand as to who is treated as a juvenile under the Act of 2000.
26. As defined by section 2(k) of the Act of 2000, a juvenile or child means a person, who has not completed eighteenth year of age.
27. Closely following Section 2(k) of the Act of 2000, Section 2(l) of the Act of 2000, defines juvenile in conflict with law to mean 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.
28. A combined reading of the definitions of the term 'juvenile' and the expression 'juvenile in conflict with law‟, as contained in Sections 2(k) and 2(l) of the Act of Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 13 2000 respectively, bear out clearly the fact that a person, who, while committing an offence, has not completed the age of 18 years, shall be regarded as a juvenile in conflict with law. In other words, a person, who is alleged to have committed an offence, but has not, on the date of alleged commission of offence, completed 18 years of age, would be regarded as a juvenile in conflict with law.
29. What is, now, of immense importance to note is that the Act of 2000, was preceded by Juvenile Justice Act, 1986 (hereinafter referred to as 'the Act of 1986'). In terms of the Section 2(h) of the Act of 1986, a juvenile in conflict with law meant a male person, alleged to have committed an offence, had not completed the age of 16 years on the date of commission of such offence. It may be pointed out here that so far female were concerned, the Act of 1986 provided that the maximum age limit for them, unlike male, would be 18 years.
30. It is, thus, clear that immediately preceding the enforcement of the Act of 2000, on 01.04.2001, if a male person, alleged to have committed an offence, was a person above the age of 16 years, he would not have been regarded and treated as a juvenile in conflict with law.
31. Consequently, a male person, who, while committing an offence, was above the age of 16 years, say Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 14 17 years, would not have been treated as a juvenile in conflict with law, and he could have been tried, and was usually tried, as an ordinary offender, by the ordinary law of the land and not under the Act of 1986 inasmuch as the Act of 1986 was not applicable to his case.
32. Logically extended, it means that before 01.04.2001 (i.e., the date, when the Act of 2000, came into force), a male person, being above the age of 16 years, might have been tried in the ordinary course and stood convicted accordingly without having the benefit of the provisions of the Act of 1986 and, consequent upon his conviction, he, as a convicted person, might have been undergoing sentence of imprisonment, when the Act of 2000 came into force.
33. In other words, a person, who was not a juvenile in conflict with law, when the Act of 1986 was in force, would have become, with effect from 01.04.2001 (that is, on coming into force of the Act of 2000) a juvenile in conflict with law, and was likely to be undergoing sentence of imprisonment, though he was a juvenile in conflict with law within the meaning of Section 2(l) of the Act of 2000.
34. Because a person, who had not completed the age of 18 years on the date of commission of an Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 15 offence, was a juvenile in conflict with law within the meaning of Section 2(l) of the Act of 2000, and yet he might have yet been undergoing punishment following his conviction as an ordinary offender, the Legislature thought it fit to take care of such a situation.
35. It was precisely to address such cases, as indicated above, that Section 64 of the Act of 2000 was introduced, which, when introduced, on 01.04.2011, read, initially, thus:
"64. Juvenile in conflict with law undergoing sentence at commencement of this Act.- In any area in which this Act is brought into force, the State Government or local authority shall direct that a juvenile in conflict with law, who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special care under sub-section (2) of Section 16 of this Act."
(Emphasis is added) Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 16
36. A bare reading of Section 64 of the Act of 2000, as the same stood on 01.04.2001 (when the Act of 2000, initially, came into force) shows that on coming into force of the Act of 2000, it was an obligation, on the part of the State Government or the local authority, as the case may be, to find out if there was any person, who had been undergoing sentence of imprisonment, though he was a juvenile in conflict with law within the purview of the definition thereof as given by Section 2(l) of the Act of 2000, meaning thereby that if a convicted male person, who was older than 16 years at the time of commission of offence, but had not completed 18 years of age, happened to be undergoing imprisonment on 01.04.2001 (i.e., the date on which the Act of 2000 came into force), he should be given the benefit of the provisions of the Act of 2000.
37. Hence, if any such case, as indicated above, surfaced on the exercise, which the State Government or the local authority was required to undertake under Section 64 of the Act of 2000, then, the State Government or the local authority, as the case may be, was obliged, under Section 64 of the Act of 2000, to send such a person to a special home or to be kept in an institution fit for this purpose, in such a manner as the State Government might have decided, for the remainder Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 17 of the period of the sentence.
38. As the days rolled on, experience revealed that there were cases, where a juvenile in conflict with law had been undergoing sentence of imprisonment, and since he had already crossed the age of being juvenile or had ceased to be a juvenile, he could not have been sent to a Special Home or he could not have been kept in any institution, which the State Government might have established because the convict, in the mean-while, ceased to be a juvenile, though he was a juvenile at the time of commission of offence. Such a case also included a person, who might have been undergoing sentence of life imprisonment, though the maximum period of sentence to be passed against a juvenile in conflict with law, on his being found guilty of an offence, was, in the light of Section 15 (1) (g) of the Act of 1986, three years and the same period of maximum imprisonment has remained even under the Act of 2000.
39. In order to address the situation pointed out above, following 'Proviso' with Explanation was introduced to the body of Section 64 of the Act of 2000 by way of amendment, which came into force on 22.06.2000. With the Proviso and Explanation appended thereto. Section 64 of the Act of 2000, reads, with effect from Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 18 22.06.2000, thus :
Section 64 - Juvenile in conflict with law undergoing sentence at commencement of this Act.-
In any area in which this Act is brought into force, the State Government or the local authority shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section ( 2) of section 16 of this Act.
Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 19
Explanation.--In all cases, where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act.
40. A bare perusal of the provisions empodied in Section 64 of the Act of 2000 shows that the power of the local authority to review the case of a juvenile in conflict with law has been withdrawn with effect from 22.06.2000 and it is the State Government and the Board, which have been given the power to review the case of a juvenile in conflict with law, who may be undergoing sentence of imprisonment on the date of coming into force of the Act of 2000, but has ceased to be a juvenile since after commission of the offence, which he stands convicted of.
Obviously, such a juvenile, though in conflict with law, could not have been sent to special home or to any institution, Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 20 established by the Government, for the remainder of the period of the sentence.
41. The next question, therefore, is: who, or which, is the competent authority under Section 64 of the Act of 2000, to determine as to whether a person, who claims to be a juvenile in conflict with law, was or was not a juvenile on the date of occurrence.
42. The question, posed above, has arisen, we must bear in mind, because of the fact that it has been submitted, on behalf of the State, that under Section 6 of the Act of 2000, it is the Juvenile Justice Board, constituted under Section 4 of the Act of 2000, which has the exclusive authority to determine the question of juvenility of a person, who claims to be a juvenile on the date of commission of an offence, though apart from the Juvenile Justice Board, it is the High Court and the Court of Session, which may also exercise, according to learned Counsel for the State, the power, which can be, otherwise, exercised by the Juvenile Justice Board (hereinafter referred to as 'the Board').
43. In order to understand the scope and ambit of Section 6 of the Act of 2000, it is necessary that Section 6 be taken note of. Section 6 of the Act of 2000 is, therefore, reproduced below:-
"6. Powers of Juvenile Justice Board.-Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 21
(1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise."
44. A combined and careful reading of sub- Sections (1) and (2) of Section 6 of the Act of 2000 makes it clear that sub-Section (1) of Section 6 of the Act of 2000 deals with, inter alia, the power of the Board to determine whether a person was or was not a juvenile at the time of alleged commission of offence. In other words, under the Act of 2000, it is the Board, which would be competent to determine whether a person, who is alleged to have committed an offence, was or was not a juvenile on the date of commission of the offence.
45. Having given the power so exclusively to the Board, the Legislature thought it fit to empower, and has accordingly empowered, the High Court as well as the Court of Session to exercise the powers, conferred on the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 22 Board, when a proceeding comes before these Courts in 'appeal‟, „revision‟ or „otherwise‟.
46. Situated thus, it becomes abundantly clear that while dealing with an appeal or revision, when a question arises as to whether a person, found guilty of an offence, was a juvenile on the date of commission of the offence or not, the answer to this question can be determined by the High Court or the Court of Session, as the case may be, and, then, appropriate order(s) can be passed thereon.
47. The expression 'otherwise‟, which appears in sub-section (2) of Section 6 of the Act of 2000, now, needs some elucidation.
48. We have no hesitation in holding that a proceeding, under Article 226 as well as Article 227 of the Constitution of India, is a proceeding, which falls within the expression 'otherwise‟ appearing in Section 6 of the Act of 2000, meaning thereby that if a High Court, while dealing with an application under Articles 227 or under Article 226 of the Constitution of India, is confronted with the situation, where it is called upon to decide whether a person, accused of having committed an offence or proved to have committed an offence, was or was not a juvenile on the date of the offence, the High Court would have the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 23 power to determine the answer to such a question and if the answer is in the affirmative, that is to say, if the High Court holds that the person, sought to be prosecuted or proved guilty, was a juvenile, on the date of the offence, then, the High Court would be competent to decide subsequent course of action.
49. In short, in a case of the nature, as depicted above, the High Court, while dealing with a proceeding under Article 226 or Article 227 of the Constitution of India, would be competent to determine whether the accused or the convict was or was not a juvenile on the date of the offence alleged to have been committed or proved to have been committed by him.
50. The question, now, is: While exercising, under Section 64 of the Act of 2000, the power to review the case of a juvenile in conflict with law, whether the State Government can itself determine if the convict was or was not a juvenile on the date of the offence, which he has been proved to be guilty of and, in consequence whereof, he has been undergoing sentence of imprisonment?
51. In order to appreciate the scope of Section 64 of the Act of 2000, let us assume that 'X' was alleged to have committed offence of murder on 01.01.1987 and at the time of alleged commission of the said offence, the age Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 24 of the accused was 17 years. Under the Act of 1986, since he was not a juvenile, he was tried by a Court of Session under the general law, convicted accordingly and, consequent upon his conviction, he was to sentenced to suffer imprisonment for life and pay fine and, on being so convicted and sentenced, he starts serving the sentence passed against him, without preferring any appeal.
52. The question, which naturally arises, would be: whether such a person can be treated as a juvenile under the Act of 2000?
53. The answer to the question, posed above, has to be in the affirmative inasmuch as the person concerned was a juvenile, within the meaning of the Act of 2000, on the date of the commission of the offence, when he had not completed the age of 18 years. He would, therefore, be treated as a juvenile in conflict with law within the meaning of Section 2(l) of the Act of 2000. This issue has also been set at rest by the Supreme Court in Hari Ram vs. State of Rajasthan & Another, [(2009) 13 SCC 211], wherein, while examining the scope of Section 7A of the Act of 2000, the Supreme Court held that the claim of juvenility can be raised before any court at any stage and such a claim is required to be determined in terms of the provisions contained in the Act of 2000 and Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 25 the Rules framed thereunder even if the juvenile ceases to be so on or before the date of commencement of the Act of 2000.
54. It was made explicit, in Hari Ram (supra), that a juvenile, who had not completed 18 years of age on the date of commission of an offence, was also entitled to the benefits of the Act of 2000, as if the provisions of section 2(k) of the Act of 2000 had always been in existence even during the operation of the Act of 1986.
55. It was further pointed out, in Hari Ram (supra), that on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 of the Act of 2000 read with Rules 12 and 98 of the Rules of 2007, it becomes crystal clear that all persons, who were below the age of 18 years on the date of the offence committed on or before 01.04.2001 (i.e., the date of coming into force of the Act of 2000), would be treated as a juvenile even if the claim of juvenility is raised after they have attained the age of 18 years and after the Act of 2000 has come into force and are undergoing sentence upon being convicted.
56. Again, in Dharambir v. State(NCT of Delhi) and Another [(2010) 5 SCC 344], which was a case, where the appellant was convicted of the offences under Section 302 and 307 read with Section 34 of the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 26 Indian Penal Code, for committing murder of one of his close relatives and for attempting to murder his brother. On the date of commission of the offence, the appellant was not a juvenile within the provisions of the Act of 1986, but he had not completed 18 years of age on that date, i.e., he was of the age of 16 years, but had not completed the age of 18 years.
57. The Supreme Court held, in Dharambir (supra), that from the language of the Explanation to Section 20 of the Act of 2000 that in all pending cases, which would include not only trial but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility has to be in terms of clause (l) of Section 2 of the Act of 2000 even if the juvenile ceases to be a juvenile on or before 1st April, 2001,when the Act of 2000 came into force and, therefore, the provisions of the Act of 2000 would have full force for all purposes.
58. The Supreme Court also held, in Dharambir (supra), that Section 20 of the Act of 2000 also enables the Court to consider and determine the juvenility of a person even after conviction by regular court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Board concerned for passing sentence in Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 27 accordance with the provisions of the Act of 2000.
59. What, thus, clearly emerges is that even a convict, undergoing sentence, on the date of coming into force of Act of 2000, would be entitled to the benefit of Act of 2000 if he can establish that he had not completed the age of 18 years on the date of commission of the offence. It is in this context that Section 64 of the Act of 2000 needs to be viewed.
60. Section 64 of the Act of 2000, therefore, seeks to take care of those situations, where a person, though not a juvenile under the Act of 1986, becomes a juvenile under the Act of 2000, so that he can be given, to the extent possible, the benefits of the Act of 2000.
61. Section 64 of the Act of 2000, on 01.04.2001 (i.e., on the date of coming into force of the Act of 2000) empowered the State Government or the local authority, as the case may be, to direct that a juvenile in conflict with law, who has been undergoing any sentence of imprisonment on the commencement of the Act of 2000, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in an institution, in such a manner as the State Government or the local authority, as the case may be, thinks fit for the remainder of the period of the sentence and that the provisions of the Act of Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 28 2000 shall apply to the juvenile as if he had been ordered by the Board to be sent to such a special home or institution, as the case may be.
62. A proviso to Section 64 of the Act of 2000 was added, with effect from 22.08.2006, by the Amendment Act of 2006, whereby, while withdrawing the power of the local authority, it has been laid down that the State Government or, as the case may be, the Board may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing sentence of imprisonment, who has ceased to be so on or before the commencement of the Act of 2000, and pass appropriate order in the interest of such juvenile.
63. An Explanation has been added to Section 64 of the Act of 2000, with effect from 22.08.2006, by the Amendment Act of 2006. This Explanation provides that in all cases, where a juvenile in conflict with law is found to have been undergoing a sentence of imprisonment on the date of commencement of the Act of 2000, his case, including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of Section 2 and other provisions contained in the Act of 2000 read with the rules made thereunder irrespective of the fact that whether he has ceased to be a juvenile or not on or before such date Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 29 and, accordingly, he shall be sent to the special home or an institution, as the case may be, for the remainder of the period of the sentence, but such sentence shall not, in any case, exceed the maximum period provided in Section 15 of the Act of 2000.
64. Thus, in unequivocal terms, the State Government and the Board have been empowered to take care of the situations indicated above. However, Section 64 of the Act of 2000 cannot be read in isolation and it has to be necessarily read in the light of Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
65. Rule 98 of the Rules of 2007 deals with disposed off cases of juveniles in conflict with law and provides that the State Government or, as the case may be, the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, determine his juvenility in terms of the provisions contained in the Act of 2000 and Rule 12 of the Rules of 2007 and, then, pass an appropriate order in the interest of the juvenile in conflict with law. The power, so given to the State Government and the Board, under section 64 of the Act of 2000, would include the power to direct immediate release of the juvenile in conflict with law, whose period of detention or Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 30 imprisonment has exceeded the maximum period of sentence prescribed by Section 15 of the Act of 2000.
66. It can be clearly gathered from a bare reading of Rule 98 of the Rules of 2007 that the power of review has been vested in the State Government as well as the Board. This power of review extends to the issue of determination of juvenility in order to review a case or while reviewing a case; more so, when the State Government has been empowered, under Section 64 of the Act of 2000, to pass appropriate order in the interest of the juvenile in conflict with law.
67. Coupled with the above, Rule 98 of the Rules of 2007 makes a reference to Rule 12 of the Rules of 2007. Rule 12 of the Rules of 2007, it may be pointed out, sets out the norms of determination of age of a person in order to ascertain whether he is a juvenile or not. It may be carefully noted that Rule 12 of the Rules of 2007 prioritize the materials to be considered for the purpose of determining the age of a juvenile inasmuch as it lays down the evidence to be considered in order of priority for the purpose of determination of the age of a child or a juvenile.
68. What needs to be borne in mind is that the determination of age under Rule 12, can be of a child or of a juvenile in conflict with law. While the Board or the Court Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 31 can determine the age of a person, who claims to be a juvenile on the date of commission of an offence, the Child Welfare Committee, constituted under Section 29 of the Act of 1986 and referred to, in the Act of 2000 Act and the Rules of 2007, as the 'Committee‟, can determine the age of child alone and not the age of a juvenile in conflict with law; whereas the Court or the Board can determine the age of both, a child as well as a juvenile in conflict with law, because the power of determination of age by the Court flows from Section 6 of the Act of 2000.
69. Thus, when the issue of determination of age may arise even after the disposal of a case, Rule 98 of the Rules of 2007 read with Section 64 of the Act of 2000 must be held to empower not only the Board, but also the State Government to adopt the procedure provided in Rule 12 of the Rules of 2007 in order to determine the age of a person incarcerated by virtue of a sentence awarded under the general law.
70. While deciding the question as to whether State Government can be held to have the power, under Section 64 of the Act of 2000, to determine the age of a convict so as to decide whether the person was a juvenile or not on the date of the commission of the offence so that such a person, if a juvenile in conflict with law, does not Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 32 have to suffer sentence of imprisonment exceeding maximum period of imprisonment of three years as prescribed by Section 15 of the Act of 2000, one may take note of the doctrine of implied powers.
71. In Sakiri Vasu v. State of U.P, (2008) 2 SCC 409, the Supreme Court held that when a power is given to an authority to do something, it includes such incidental or implied powers, which would ensure the proper doing of that thing. In other words, when any power is expressly granted by a statute, there is impliedly included in the grant, even without special mention, every power and every control, the denial of which would render the grant itself ineffective.
72. Thus, where a statute confers jurisdiction, it impliedly also grants the power of doing all such acts or employ all such means as are essential or necessary for its execution.
73. The reason for resorting to the above principle, which is popularly known as the doctrine of implied power, is that many of the minor details are, at times, omitted from legislation and such omissions may be required to be fulfilled by an authority or a court, while enforcing or exercising its powers under such legislation so that the jurisdiction, exercisable by it, under the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 33 legislation, is not rendered redundant, ineffectual, infructuous or otiose.
74. It is precisely to ensure that when a person approaches a court for remedy of his grievances and such grievances, though remediable, cannot be remedied by the court merely because some other acts are to be done by the court in order to enable it to exercise the jurisdiction conferred on it, such legislation is presumed to carry such powers for the court, which are necessary to ensure that a grievance, brought before it in accordance with law, does not get frustrated merely because legislation is silent on the minor details as regards exercise of jurisdiction.
75. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as is specifically written in the statute.
76. As observed by Crawford, in his Statutory Construction (3rd edn., P. 267):
."..If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission.‟
77. In the case of Savitri vs Govind Singh Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 34 Rawat, reported in 1986 CriLJ 41 (SC), the question, confronting the Supreme Court, was whether a Magistrate, before whom an application is made under Section 125 of the Code of Criminal Procedure, can make an interim order directing the person, against whom the application is made, to pay reasonable maintenance to the applicant concerned pending disposal of the application.
78. While answering the query, so posed, the Supreme Court held, in Savitri (supra), that in the absence of any express prohibition, it is appropriate to construe the provisions, in Chapter IX, as conferring an implied power, on the Magistrate, to direct the person, against whom an application is made under Section 125 of the Code of Criminal Procedure, to pay some reasonable sum, by way of interim maintenance, to the applicant pending final disposal of the application.
79. The Supreme Court pointed out, in Savitri (supra), that it is quite common that applications, made under Section 125 of the Code of Criminal Procedure, take several months for disposal. In order, therefore, to enjoy the fruits of the proceedings under Section 125 of the Code of Criminal Procedure, the applicant should remain alive till the date of the final order and this can be achieved only when an order for payment of interim maintenance is Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 35 passed by court.
80. The Supreme Court observed, in Savitri (supra), that it is the duty of the court to interpret the provisions of Chapter IX of the Code in such a way that the construction, placed on them, would not defeat the very objective of the legislation. In the absence of any expressed prohibition, it is appropriate to consider, holds the Supreme Court, that the provisions, in Chapter IX conferred an implied power on the magistrate to direct the person, against whom an application is made under Section 125 of the Code of Criminal Procedure, to pay some reasonable sum; by way of maintenance, to the applicant, seeking maintenance, pending final disposal of the application.
81. Every court must be deemed, points out the Supreme Court, in Savitri (supra), to possess, by necessary intendment, to hold such power, as are necessary to make its order effective. This principle is embodied in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non-potest" (where any thing is conceded, there is conceded also anything without which the thing itself cannot exist). Whenever anything is required to be done by law and it is found impossible to do that thing unless something, not authorised in express Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 36 terms, be also done, then, that something else will be supplied by necessary intendment.
82. In other words, whenever anything is required to be done by law and it is found impossible to do that thing unless something, not authorised in express terms, be also done, then, that something else will be supplied by necessary intendment. Such a construction of power would, in the light of the decision in Savitri's case (supra), advance the object of Section 125 of the Code of Criminal Procedure inasmuch as a contrary view is likely to result in grave hardship.
83. In Income Tax Officer, Cannanore Vs. M.K. Mohammed Kunhi, (AIR 1969 SC 430), the question, raised in the Supreme Court, was whether the Appellate Income Tax Tribunal has the power, under the relevant provisions of the Income Tax Act, 1961, to stay, during pendency of appeal, the recovery of the realization of the penalty imposed by the departmental authorities on an assessee.
84. While answering the question, posed above, the Supreme Court, in M.K. Md. Kunhi (supra), invoked the principle of implied power and held that it is a firmly established rule that an express grant of statutory power carries with it, by necessary implication, the authority to Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 37 use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402).
85. The Supreme Court, in M.K. Mohammad Kunhi (supra), quoted, with approval, the observations made in Domat's Civil Law Cushing's Edition, Vol. I at page 88, which read as under:
"It is the duty of the Judges to apply the laws, not only to that appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. It is, therefore, seen that in order to meet certain rare circumstances, Court have adopted the doctrine of implied power, of course, with abundant caution bearing in mind that no prejudice or hardship is caused to adverse party."
86. In short, an express grant of statutory powers carries with it, by necessary implication, the authority to use all reasonable means to make such grant effective. Thus, in M.K. Mohammad Kunhi (supra), the Supreme Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 38 Tax Act. (See also Union of India v. Paras Laminates (P.) Ltd. (1990)4 SCC 453, RBI v. Peerless General Finance and Investment Co. Ltd.(1996) 1 SCC 642, CEO & Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu (1996) 11 SCC 23, J.K. Synthetics Ltd. v. CCE (1996) 6 SCC 92, State of Karnataka v. Vishwabharathi House Building Coop. Society (2003) 2 SCC 412, etc).
87. Thus, when Section 64 of the Act of 2000, accompanied by Rule 98 of the Rules of 2007, provide that State Government has the power to review the case of a juvenile and also decide the question of his juvenility, such a power inheres within itself the power to conduct necessary inquiry into the age of the person concerned.
88. Now, the next question is: what are the courses open, when a plea of juvenility has been raised and answered in the affirmative; but, in the meanwhile, the juvenile, upon his conviction, has already spent considerable time in imprisonment.
89. The first issue is what would be the fate of the conviction recorded? This issue is not very difficult to decide. If a male person, above the age of 16 years, was tried and convicted, when the Act of 1986 was in force, his conviction cannot be said to be bad in law and would not, Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 39 therefore, be interfered with. However, after the Act of 2000 had come into force, if a person was above the age of 18 years on the date of commission of an offence, then, the conviction of such a person would be without jurisdiction by a court of ordinary criminal jurisdiction and such conviction would not, therefore, be sustained. (see, Jitendra singh @ Babboo Singh v. State of U.P., (2013 (9) SCALE 18)
90. It is also a well settled rule of construction that if two constructions are possible, then, the court must adopt that construction, which will ensure smooth and harmonious working of the statute and eschew the other, which will lead to absurdity or will make established provisions of existing law nugatory or which would lead to strange, inconsistent results or otherwise introduce an element of uncertainty and practical inconvenience in the working of the statute.
91. Considered thus, it becomes clear that the State Government must be held to have, under Section 64 of the Act of 2000 read with Rule 98 of the Rules of 2007, the power to determine whether a person was or was not a juvenile on the date of the commission of the offence within the meaning of the term 'juvenile‟ under the Act of 2000.
Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 40
92. In the case of Jitendra Singh @ Babboo Singh Vs State of U.P., (2013 (9) SCALE 18), the Supreme Court analysed the cases on the sentence to be awarded to a convict, who was a juvenile, when he committed the offence, and found that there was a dichotomy in the views of even the Supreme Court.
93. In the first category of cases, the conviction of the juvenile was upheld, but the sentence quashed. In Jayendra v. State of Uttar Pradesh, (1981) 4 SCC 149, the conviction of the appellant was confirmed, though he was held to be a child as defined in Section 2(4) of the Uttar Pradesh Children Act, 1951. However, he was not sent to an 'approved school' since he was 23 years old by the time he was found to be juvenile. His sentence was, therefore, quashed and he was directed to be released forthwith.
94. In Bhoop Ram v. State of U.P., (1989) 3 SCC 1, the Supreme Court followed its decision in Jayendra (supra) and, while upholding the conviction of the appellant, who was 28 years old, quashed the sentence awarded to him.
95. In Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419, yet another case under the Uttar Pradesh Children Act, 1951, the conviction of the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 41 appellant was upheld, but since he was 30 years old by the time, he was found to be a juvenile on the date of commission of offence, his sentence was set aside.
96. In Bhola Bhagat and other v. State of Bihar, (1997) 8 SCC 720, the conviction of the appellant was upheld by the Supreme Court, but the sentence was quashed keeping in mind the provisions of Bihar Children Act, 1970, read with Bihar Children Act, 1982 and also the Act of 1986.
97. In Upendra Kumar v. State of Bihar, (2005) 3 SCC 592, the Supreme Court followed its decision, in Bhola Bhagat's (supra) and, while upholding the conviction of the appellant, quashed the sentence awarded to him.
98. In Gurpreet Singh v. State of Punjab MANU/SC/2515/2005 : (2005) 12 SCC 615, one of the appellants was found to be a juvenile within the meaning of that expression occurring in Section 2(h) of the Act of 1986. The Supreme Court held that if the accused was a juvenile on the date of occurrence and continues to be so, then, in that event, he would have to be sent to a juvenile home. However, if on the date of the sentence, the accused is no longer a juvenile, the sentence, imposed on him, would be liable to be set aside. In this context, Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 42 reference was made to Bhoop Ram's (supra).
99. Finally, in Vijay Singh v. State of Delhi, (2012) 8 SCC 763, the conviction of the appellant was upheld, but the sentence was quashed since he was about 30 years old by that time.
100. The second category of cases includes Satish @ Dhanna v. State of Madhya Pradesh, (2009) 14 SCC 187, wherein the conviction of the appellant was upheld, but the sentence awarded was modified to the period of detention already undergone. Similarly, in Dharambir (supra), the conviction of the appellant was sustained, but since the convict had undergone two years and four months of incarceration, the sentence awarded to him was quashed.
101. The third category of cases includes Hari Ram (supra), wherein the appellant was held to be a juvenile on the date of commission of the offence, his appeal against conviction was allowed and the entire case remitted to the Board for disposal in accordance with law.
102. In Daya Nand v. State of Haryana, (MANU/SC/0021/2011 : (2011) 2 SCC 224), the Supreme Court followed Hari Ram (supra) and directed the appellant to be produced before the Board for passing appropriate orders in accordance with the provisions of the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 43 Act of 2000.
103. The fourth category of cases includes Ashwani Kumar Saxena v. State of Madhya Pradesh, (2012) 9 SCC 750, wherein the conviction of the appellant was upheld and the records were directed to be placed before the jurisdictional Board for awarding suitable punishment to the appellant.
104. What surfaces from the above discussion is that in one set of cases, the Supreme Court has found the juvenile guilty of the offence alleged to have been committed by him, but he has virtually gone unpunished, because the Supreme Court quashed the sentence awarded to him. In another set of cases, the Supreme Court has taken the view, on the facts of the case, that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, the Supreme Court has remitted the entire case for consideration by the Board, both on the guilt or otherwise of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, the Supreme Court has examined the cases on merits and, upon having found the juvenile guilty of the offence, remitted the matter to the Board for awarding sentence.
105. What crystallizes from the above Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 44 discussion is that Section 64, as the same was introduced on 01.04.2001, took care only of the case of such a person, who was a juvenile, but having been convicted by a Court of ordinary criminal jurisdiction, had been serving his sentence in jail. In the case of such persons, Section 64 of the Act of 2000, as originally introduced, provided that he be sent to a special home or he be sent to such an institution, which may be fit for spending the remaining period of imprisonment to which the person has been sentenced to.
106. However, with the help of the proviso to Section 64 of the Act of 2000 and the Explanation appended thereto, the Legislature has, now, taken care to empower the State and also the Board to review a case, wherein a juvenile, having been convicted by a Court of ordinary criminal jurisdiction, has been serving sentence, but cannot be sent to special home or any institution of the kind, as envisaged by Section 64 of the Act of 2000, because the juvenile in conflict with law has ceased to be a juvenile. In this class of cases, the State or, as the case may be, the Board has been empowered to pass appropriate order in the interest of such juvenile.
107. In short, Section 64 of the Act of 2000, as it stands today, empowers the State or, as the case may Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 45 be, the Board to review the case of a person undergoing sentence and determine if he was a juvenile in conflict with law on the date of commission of the offence and, if so, the State or, as the case may be, the Board is empowered to pass appropriate order in the interest of such juvenile.
108. In the backdrop of the position of law, as discussed above, when we revert to the case at hand, we notice that the State Government has determined that the petitioner herein was a juvenile on the date of the commission of the offence which he stands convicted of. We do not find any infirmity, legal or factual, in the determination of the age of the petitioner by the State Government.
109. What logically follows from the above discussion is that when the State Government has found that the present petitioner was a juvenile in conflict with law, within the meaning of the Act of 2000, on the date of commission of the offence, the State Government has the necessary power, for adequate and special reasons, to pass appropriate order in the interest of such juvenile.
110. In view of the fact that the State Government has already determined that the petitioner was a juvenile in conflict with law, within the meaning of Section 2(l) of the Act of 2000, who shall pass the Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 46 consequential order?
111. With regard to the above, it is of immense importance to note that the present petitioner has already served far more than maximum period of imprisonment, which Section 15 of the Act of 2000 has prescribed, inasmuch as Section 15 of the Act of 2000 prescribes three years of imprisonment as the maximum period to which a juvenile in conflict with law can be sentenced to.
112. In view of the above, it becomes crystal clear that since the petitioner is a juvenile in conflict with law within the meaning of Section 2(l) of the Act of 2000, no fruitful purpose will be served if his case is remanded to the State Government for passing appropriate order under Section 64 of the Act of 2000, when he has already served more than three years of imprisonment.
113. What logically follows from the above discussion is that the petitioner cannot be kept in prison any longer and must be set at liberty forthwith and the process of setting him at liberty cannot be delayed.
114. In the result and for the foregoing reasons, this writ petition succeeds. While maintaining the conviction of the petitioner, we set aside the sentence of life imprisonment passed against him and direct that the petitioner, having served more than three years of Patna High Court Cr. WJC No.302 of 2014 (4) dt.16-05-2014 47 imprisonment, be set at liberty forthwith.
115. With the above observations and directions, this writ petition shall stand disposed of.
(I. A. Ansari, J.) S. P. Singh, J. :
(Samarendra Pratap Singh, J.) Prabhakar Anand/-
NAFR