Patna High Court
Gopal Nag And Anr. vs State Of Bihar on 11 July, 2000
Equivalent citations: 2000(3)BLJR2235
Author: M.Y. Eqbal
Bench: M.Y. Eqbal, G.S. Chaube, A.K. Prasad, D.N. Prasad, A.K. Sinha
JUDGMENT M.Y. Eqbal, J.
1. A division Bench of this Court, while hearing the instant appeal, doubted the correctness of the Full Bench judgment of this Court in the case of Krishna Bhagwan v. State of Bihar (1991) 1 BLJR 321, referred the matter to a larger Bench to consider the correctness of the judgment of the Full Bench in view of the law laid down by the Supreme Court in the case of Gopinath Ghosh v. State of West Bengal . The Division Bench of this Court is of the view that although in Krishna Bhagwan case (supra), the Full Bench relied upon the decision of the Supreme Court in Gopinath Ghosh case but it has omitted to consider paragraph 11 of the judgment of the Supreme Court. This is how the matter has been placed before us for answering the reference.
2. In the instant case, two appellants have been convicted under Sections 302/34, I.P.C. and sentenced to imprisonment for life. Appellant No. 1, Gopal Nag is the son of appellant No. 2, Lai Mohan Nag. It was argued before the Division Bench that there is clinching evidence of fact that appellant No. 1 was minor at the time of occurrence which took place on 26.12.1991. It was contended that according to assessment made by the trial Judge, the age of the appellant Gopal Nag was about 18 years on 14.12.1992 when his statement was recorded under Section 313, Cr.P.C. Accordingly, appellant No. 1 was below 16 years at the time of occurrence of the offence. It was, therefore, contended before the Division Bench that the entire trial leading to the conviction of appellant No. 1 is, therefore, without jurisdiction.
3. Admittedly, no plea was taken by the appellants during the trial that appellant No. 1 Gopal Nag was the child within the meanings of Bihar Children Act, 1982 and accordingly he should have been tried in accordance with the provisions of the aforesaid Act and also under the provisions of the aforesaid Act and also under the provisions of Juvenile Justice Act, 1986. For the first time, this plea has been taken before this Court at the appellate stage.
4. In the Krishna Bhagwan case (supra), fact of the case was that the appellant was convicted, under Sections 302, 307, 324, IPC, and was sentenced to undergo imprisonment for life under Section 302, IPC, 10 years under Section 307, IPC and 2 years under Section 324, I.P.C. No plea was taken in that case also during the trial that appellant was child within the meaning of Bihar Children Act, 1982 on the date of occurrence. The plea was taken for the first time before this Court during the hearing of the appeal. The Bench hearing the appeal had referred the case for consideration of the following questions by the Full Bench:
(i) Whether the provisions of the Bihar Children Act, 1982 shall be applicable even to a case where by the time the trial commences or concludes the accused ceases to be a child although when the offence was committed he was a child within the meaning of the Act?
(ii) Where the plea that the accused was a child within the meaning of the Act aforesaid and as such the trial could not have proceeded before the criminal Court, has not been taken at the trial stage but. is taken at the appellate stage, what procedure should be followed for the purpose of determination of the age of the accused at the time of the commission of the offence and if the accused is found to be child, then for extending the benefits of the Act?
5. The Full Bench after considering the various decisions of the apex Court and the High Courts including and specially following the law laid down by the Supreme Court in Gopinath Ghosh case came to the following conclusion:
Once the Legislature has enacted a law to extend special treatment in respect of trial and conviction to juveniles, the Courts should be jealous while administering such law so that the delinquent juveniles derive full benefit of the provisions of such Act but, at the same time, it is the duty of the Courts that the benefit of the provisions meant for juveniles are not derived by unscrupulous persons, who have been convicted and sentenced to imprisonment for having committed heinous and serious offences, by getting themselves declared as children or juveniles on the basis of procured certificates. According to me, if the plea that the accused was a child or juvenile on the date of the commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by Section 26 of the Juvenile Act and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, there is no question of holding any inquiry in respect of the accused being a child on the relevant date but, if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of materials on record is prima facie satisfied that the accused may be a child/juvenile within the meaning of the relevant Act on the date of the commission of the offence, it should call for a finding from the children's Court/Juvenile's Court in accordance with Section 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of Section 26 of the Juvenile Justice Act should pass an order directing the Juvenile Court to pass orders in accordance with Sections 21 and 22 of the Act.
6. The only question, therefore, fails for consideration before us as formulated by the Division Bench is that whether the decision of the Full Bench is in direct conflict with the decision of the Supreme Court in Gopinath Ghosh case (supra).
7. In Gopinath Ghosh case, the plea was raised for the first time in course of argument before the Supreme Court that on the date of offence the appellant was aged below 18 years and was, therefore, a child within the meaning of the expression "child" as defined in the West Bengal Children Act, 1959, and therefore, Court had no jurisdiction to sentence him to suffer imprisonment. It appears that in view of the contention made by the appellant's Counsel, the Supreme Court framed one issue as to what was the age of the accused on the date of offence for which he was tried and convicted, and remitted the issue to the learned Sessions Judge, Nadia to certify the finding after giving opportunity to both sides to lead oral and documentary evidence. In compliance of the order of Supreme Court, the Additional Sessions Judge, Nadia after hearing the parties gave his finding that appellant Gopinath Ghosh was aged between 16 and 17 years on the date of the offence. It is worth to mention here that the finding arrived at by the Additional Sessions Judge was not questioned before the Supreme Court by the prosecution. In the facts and circumstances of the case, their Lordships observed as under:
It clearly transpires from a combined reading of the Section hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be produced before a juvenile Court and if no juvenile Court is established for the area, amongst others, the Court of Sessions will have powers of Juvenile Court. Such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice. Section 25 forbids any trial of a juvenile delinquent and only an inquiry can be held in accordance with. the provisions of the Code of Criminal Procedure for the trial of a summons case and the bar of Section 24 which has been given an overriding effect as it opens with the non-obstante Clause takes away the power of the Court to impose a sentence of imprisonment unless the case falls under the proviso.
Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Sessions Court, which tried him for the offence of murder. Even the appellant had given his age as 20 years when questioned by the learned Additional Sessions Judge. Neither the appellant nor his learned Counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court even questioned the jurisdiction of the trial Court to hold the trial of the appellant, nor was it ever contended that he was a juvenile delinquent within the meaning of the Act and therefore, the Court had no jurisdiction to try him, as well as the Court had no jurisdiction to sentence him to suffer imprisonment for life. It was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the Act read with Clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it. proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.
The report of the learned Additional Sessions Judge is self-evident. It is unquestionably established on unassailable evidence that on August 19, 1974, the date of the offence, appellant was aged between 16 and 17 years. He was, therefore, a juvenile delinquent. Obviously, the learned Magistrate could not have been held against him as provided in Section 25 of the Act and unless the case of the appellant falls within the proviso to Section 24(2). He could not be sentenced to suffer imprisonment. Therefore, the entire trial of the appellant for having committed an offence under Section 302, IPC and sentence for imprisonment for life imposed by the learned Additional Sessions Judge and confirmed by the High Court are unsustainable and they must be set aside.
8. Mr. P.P.N. Roy, learned Counsel appearing for the appellant put heavy reliance on the decision of the Supreme Court in Gopinath Ghosh case, and submitted that in view of the materials available on record to the effect that appellant No. 1 was minor at the time of the occurrence the entire trial is vitiated in law and the conviction cannot be sustained. Earned Counsel further submitted that the ratio decided by the Full Bench in Krishna Bhagwan case, to the effect that before remitting the matter for an inquiry, as to whether accused is juvenile, the appellate Court is supposed to go into the merit of the finding of the trial Court with regard to conviction is not in consonance with the law laid down by the apex Court in Krishna Bhagwan case (supra).
9. On the other hand, Mr. A. Sahay, Government Advocate argued that the ratio decided by the Full Bench in Krishna Bhagwan case is not in conflict with the decision of the Supreme Court in Gopinath Ghosh case. Earned Counsel further submitted that the procedure laid down by the Full Bench has been taken notice by the apex Court in the recent decision in Bhola Bhagat v. State of Bihar case AIR 1998 SC 237. Learned Counsel submitted that decision of the Full Bench has been approved by the Supreme Court in Bhola Bhagat case, and therefore, it cannot be said that there is any deviation of law in the decision of the Full Bench.
10. Before appreciating the rival contention of the learned Counsel it would be useful to look into the relevant provisions of Juvenile Justice Act, 1986 (hereinafter referred to as the said Act). The Juvenile Justice Act, 1986 came into force on 2.10.1987 in all the States including the State of Bihar. It is worth to quote herein below Section 26 of the said Act, which is relevant for the purpose of instant case.
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 cost 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 Juvenile Court which shall pass orders in respect of the juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence.
11. From perusal of the aforesaid provisions, it is manifest that where trial of the accused was pending in any Court when the Act came into force and accused was convicted for the offence committed and material was produced on the basis of which it could opines that accused was juvenile at the time of commission of the offence then Court should forward the accused to Juvenile Court, for proceeding in accordance with law.
12. Section 32 of the said Act is also worth to be quoted herein below:
Presumption and determination of age : (1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority, shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
13. This Section contemplates a full-fledged inquiry as to the age of the person when it appears to a Court that the accused is juvenile and for that purpose the Court shall record a finding whether the person is a juvenile or not?
14. The provisions of the said Act particularly Sections 26 and 32 came for consideration by the apex Court in various decisions. Reference may be made to the decision of the apex Court in the case of Bhoopram v. State of U.P. , Pradip Kumar v. State of Bihar MR 1994 SC 104, State of Haryana v. Balwant Singh (1993) Suppl. Vol. I, SCC 409.
14. Recently in case of Bhola Bhagat v. State of Bihar AIR 1998 SC 237, apex Court considered the similar questions and referred all the earlier decisions. In Bhola Bhagat case, the plea was taken by the accused that he was a juvenile at the time of commission of the offence both before the trial Court and the High Court and both fee Courts though considered the plea but denied the benefit to the appellant. Their Lordships approved the law laid down in the case of Gopinath Ghosh and Bhoopram case and held that the appellant cannot be denied benefit of the provisions of the Act on the basis of Balwant Singh's case.
15. In Bhola Bhagat case, their Lordships have taken notice of the Full Bench decision of this Court in Krishna. Bhagwan case, in paragraph 13 of the Judgment which reads as under:
A Full Bench of the Patna High Court in the case of Krishna Bhagwan v. State of Bihar , considered the question relating to the determination of the age of the accused and the belated raising of that plea and opined that though the normal rule is that a plea unless it goes to the very root of the jurisdiction should not be allowed to be taken at the appellate stage especially when it requires the investigation into a question of fact but a plea that accused in question was a "child" within the meaning of the Act can be entertained at the appellate stage also and should not be over looked on technical grounds. After noticing the provisions of the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986, the Full Bench of the Patna High Court opined, taking into consideration the aim and intention of the two Acts, that the application of the provisions of the Acts should not be denied to an offender where by the time the trial commenced or concluded the accused had ceased to be a juvenile, although when the offence was committed he was a juvenile within the meaning of the. Act, The Court then laid down, the procedure which should, be followed, when a plea is raised, to the effect that the accused on the date of the offence was a child, and held that inquiry into that aspect should be conducted and on the basis of the evidence led at the inquiry the Court should record a finding whether or not on the date of commission of the offence, the accused was a 'child' within the meaning of the Act.
16. In the concluding portion of the judgment their Lordships observed as under:
Before parting with this judgment, we would like to re-emphasise that when a plea is raised en 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 about, the age as claimed by the accused, to hold an inquiry-itself for determination of the question of age of the accused or cause an inquiry 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 inquiry and return a finding regarding the age, one way or the other. We expect the High Courts and subordinate Courts to deal with such cases with more sensitivity; as otherwise the object the object of the Acts would be frustrated and the effort of the Legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The High Courts may issue administrative directions to the subordinate Courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of the plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the concerned accused and then deal with the case in the manner provided by law.
(emphasis is mine)
17. The law has now been well settled by the Supreme Court that a plea that accused was a child within the meaning of the Act can be entertained even at the appellate stage and should not be over-looked on a technical ground. It is equally well settled now that whenever such plea is taken an inquiry into that aspect should be conducted and, on the basis of the evidence laid at the inquiry, the Court shall record a finding whether or not on the date of commission of the offence the accused was a child within the meaning of the Act. It is only thereafter the Appellate Court shall hear the appeal on merit and dispose of the appeal in accordance with law.
18. As noticed above, the Full Bench in Krishna Bhagwan case, took the view that once a plea is taken in appeal that the accused was a child or juvenile on the date of commission of the offence then the Court shall proceed with the hearing of the appeal and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, there is no question of holding any inquiry in respect of the accused being a child on the relevant date but if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of materials on record is satisfied that the accused is a child, it should call for a finding from the Juvenile's Court in accordance with Section 32 of the Act. This part of the procedure laid down by the Full Bench, in my considered opinion, is not in consonance with the law laid down by the apex Court in Gopinath Ghosh case (supra) and Bhoopram case (supra). The aforesaid view of the Full bench, therefore, needs modification in the light of the decision of the Supreme Court.
19. As noticed above, in Bhoopram case, the Apex Court has only taken notice of the ratio decided by the Full Bench in Krishna Bhagwan case, without recording its approval. It is well settled that a decision is only a authority for what it actually decides. The only essence of the decision and its ratio is binding and not every observation found therein. In the case of Union of India v. Dhanwanti Devi and Ors. , the apex Court held that:
A decision is only an authority for what it actually decides. What is of the essence is a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular,-facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.
Their Lordships further observed that:
Therefore, in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a Clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.
20. Be that as it may, after the decision in Gopinath Ghosh case the apex Court in subsequent decisions (Bhoopram case and Bhola Bhagat case) has given a clear pronouncement about the procedure to be followed if such plea of juvenile is taken at the appellate stage. In my opinion, judicial discipline requires that clear pronouncements by the Supreme Court must be treated as binding by all the Courts in India. In the case of C.N. Rudramurthy v. K. Barkathullah and Ors. their Lordships observed:
Indeed, it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimature to all Courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect, of the decisions to in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in DC. Bhatia case. The clear pronouncement made by this Court in Shobha Surrender case, was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao case. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tired to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that D.C. Bhatia case was applicable to the provisions of the Karnataka Rent Control Act. So, it was not open to the learned Judge to take any other view in the mater. Thus, we are of the view that the direction issued by the High Court to the parties to work out their remedies under the Rent Control Act is not at all correct.
21. Having regard to the facts of the case and the discussions of law made hereinabove, I have no hesitation in answering the reference by holding that the ration laid down by the Full Bench in Krishna Bhagwan case, to the extent referred to hereinabove is not in consonance with the law laid down by the Supreme Court in Gopinath Ghosh case and Bhola Bhagat case. Hence, the questions raised in the instant appeal should be decided in accordance with the law laid down by the Supreme Court. Let the records be sent to the appropriate Division Bench for hearing of the appeal.
G.S. Chaube, J.
1. I have the benefit of going through the well discussed judgment of my learned brother M.Y. Eqbal, J. and have the privilege to be advised by valuable opinion expressed by him in his judgment. However, I am unable to persuade myself to concur with the view expressed by him.
2. The present reference which has its chequered history, is the outcome of a Division Bench of this Court doubting the correctness of the Full Bench decision of this Court rendered in the case of Krishna Bhagwan v. State of Bihar . The Division Bench comprising Hon'ble R.N. Sahay and Surendra Swaroop, JJ. was hearing the present appeal (Criminal Appeal No. 23/93(R) against conviction of the appellants herein under Sections 302 and 302 read with Section 34 of the Indian Penal Code. Appellant No. 1 Gopal Nag was convicted under Section 302, whereas appellant No. 2 Lai Mohan Nag was convicted under Section 304 read with Section 34 of the Indian Penal Code and both of them were sentenced to undergo imprisonment for life in respect of an occurrence of murder which had taken place on the 26th of December, 1991. At the time of hearing of the appeal, it was noticed and pointed out by the Counsel appearing for the appellants that at the time of the occurrence, appellant No. 1 Gopal Nag was a minor aged below 16 years. Therefore, a juvenile delinquent arid is entitled to be dealt with in accordance with the provisions of Juvenile Justice Act, 1986 in view of the fact that while examining the said appellant (accused) under Section 313 of the Code of Criminal Procedure, the trial Judge had assessed his age to be about 18 years as on 14.12.1992 and the appellant had himself stated that at that particular time, he was aged about 16 years. Learned Counsel for the appellants also drew their I attention to a decision rendered by the apex Court in the case of Gopinath Ghosh v. State of West Bengal AIR 1984 SC 217, wherein it had been held that the trial of a child within the meaning of Bengal Children Act, 1959 by a regular Court instead of children's Court was without jurisdiction and therefore, the same was vitiated. It was also held by the apex Court that the benefit of West Bengal Children Act was available to an accused even if he had failed to take the plea of minority in course of trial as also in appeal before the High Court and had taken the plea of minority for the first time in appeal before the apex Court. Consequently, the apex Court had set aside the conviction and sentence of the appellant therein and remitted the case to a competent Court for fresh trial/inquiry in accordance with the provisions of the West Bengal Children Act, 1959.
3. The decision of the apex Court in the case of Gopinath Ghosh's case (supra) was relied upon by the Pull Bench of this Court in the case of Krishna Bhagwan v. State of Bihar (supra). The appellant before the Full Bench had been convicted by the Sessions Court for offences under Sections 302, 307 and 324 of the Indian Penal Code and sentenced to undergo imprisonment for life, rigorous imprisonment for ten years and two years respectively in respect of an occurrence which had taken place on 8.3.1982. At the relevant time, Bihar Children Ordinance was in force in consequence of which charges against a child, that is, a boy below 16 years and a girl below 18 years were to be inquired into/tried by Children's Court established under the said Act and in absence thereof by the District Magistrate, or Sub-Divisional Magistrate or a Judicial Magistrate of first class. Under the Bihar Children Act, 1982 which had come into force on 18.12.1983, replacing the Ordinance a delinquent child so tried if found guilty was not to be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security. He was liable to be death with by the Children Court or Magistrates referred to above in accordance with the provisions of Section 21 and Sub-section (2) of Section 22 of the said Act.
4. The appellant Krishna Bhagwan did not take a plea either in the committing Court or in the trial Court that he was a child below 16 years of age so as to be dealt with in accordance with the provisions of the Bihar Children Act, 1982. When he preferred appeal to this Court on being convicted and sentenced in the manner stated above, he took a plea for the first time in this Court in course of hearing of the appeal that he was a child below 16 years of age at the relevant time, that is, at the time of the occurrence of murder, that is, on 8.3.1982 and, therefore, entitled to the benefit of the Bihar Children Act, 1982. Faced with such a situation, a Division Bench of this Court hearing the appeal of appellant Krishna Bhagwan referred the matter to a Full Bench for consideration of the following questions:
(1) Whether the provisions of the Bihar Children Act, 1982 shall be applicable even to a case where by the time the trial commences or concludes the accused ceases to be a child, although when the offence was committed he was a child within the meaning of the Act?
(2) Where the plea that the accused was a child within the meaning of the Act aforesaid and as such the trial could not have proceeded before the Criminal Court, has not been taken at the trial stage but is taken at the appellate stage, whether the procedure should be followed for the purpose of determination of the age of the accused at the time of the commission of the offence and if the accused is found to be a child, then for extending the benefits of the Act?
5. By the time, the appeal which was presented in 1984 came for hearing by the Full Bench in 1989, two developments had taken place; first the apex Court had rendered its decision on similar matter in the case of Gopinath Ghosh (supra) and a new Act, namely, Juvenile Justices Act, 1986 had been enacted and had come into force on 2.10.1987. In Gopinath Ghosh's case also appellant Gopinath had taken a plea for the first time in the apex Court that he was a child within the meaning of Section 2(d) of the West Bengal Children Act, 1959 as at the time of the occurrence, which had taken place on 17.8.1974 he had not attained the age of 18 years. He had been convicted and sentenced by a Sessions Court of Nadia under Section 302 read with Section 34, IPC, for life. The apex Court got the plea of minority taken by the appellant inquired by the trial Court and on such inquiry it was satisfied that at the time of the occurrence he was aged between 16 and 17 years. Therefore, a child and entitled to the benefit of the provisions of West Bengal Children Act, 1959. Referring to different provisions of the West Bengal Children Act including the one that allegation against a delinquent child was to be inquired into by a Children's Court and as such a delinquent child could not be sentenced to death or imprisonment of any description notwithstanding anything to the contrary contained in any law for the time being in force, the apex Court observed that "in view of the underlying intendment and beneficial provisions of the Act, read with Clause (f) of Article 39 of the Constitution which provides that State shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time, to thwart the benefit of the provisions being extended to the appellant if he was otherwise entitled to if. Taking into consideration, the age of the appellant, the apex Court further observed in paragraph 11 at page 240 of the report that "the Magistrate could not have committed his case to the Court of Sessions. Only an inquiry could have been duly made as provided in Section 25 of the Act and unless the case of the appellant falls within the proviso to Section 24(2) he could not be sentenced to suffer imprisonment. Therefore, the entire trial of the appellant is without jurisdiction and is vitiated. Therefore, the conviction of the appellant for having committed an offence under Section 302, IPC and sentence for imprisonment for life imposed by the learned Addl. Sessions Judge and confirmed by the High Court are unsustainable and they must be set aside.
6. Consequently, relying on the decision of the apex Court in Gopinath Ghosh's case (supra) and different provisions of Bihar Children Act and Juvenile Justice Act which had come into force in the meantime, N.P. Singh, J. (as his lordship then was) delivering the leading judgment to which other two Hon'ble Judges concurred held that "a plea that the accused in question was a child within the meaning of the Act can be entertained-at the appellate stage". He further held that "if the plea that accused was a child or juvenile on the date of the commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by Section 26 of the Juvenile Justice Act and should record a finding in respect of the charge which had been levelled against such an accused. If such an accused is acquitted, there is no question of holding any inquiry in respect of the accused being a child on the relevant date, but if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of materials on record is prima facie satisfied that the accused may be a child/juvenile, within the meaning of the relevant Act on the date of the commission of the offence, if can call for a finding from the Children's Court or Juvenile Court in accordance with Section 32 of the Act (Juvenile Justice Act). If the finding so received is accepted by this Court then this Court in terms of Section 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass orders in accordance with Sections 21 and 22 of the Act (Juvenile Justice Act).
7. The correctness of this procedure laid down by the Full Bench in Krishna Bhagwan's case has been doubted by the Division Bench on two grounds : first, that it is in direct conflict with the decision of the Supreme Court in Gopinath Ghosh's case (supra), according to which, if the trial of the appellant was illegal and without "jurisdiction there is no question of deciding the appeal on merits. Only the procedure laid down by the Full Bench can be taken recourse to. Secondly; it would be hazardous", according to the division Bench "to give a finding on merit and hold that the minor accused had committed offence and then to remit the case to juvenile Court for trial. The fate of such an accused would be sealed since it would be difficult for the lower Court to differ with the finding of the trial Court." Doubting the correctness of the ratio in Krishna Bhagwan's case (supra) respecting the procedure to be followed by the Appellate Court, for the reasons stated above, the Division Bench by its order dated 21.9.1994, desired that the matter requires consideration by a larger Bench, and therefore, requested the Chief Justice of this Court for Constitution of such a Bench. However, the then Chief Justice of this Court again referred the matter to another Full Bench comprising three Judges of this Court. By order dated 14.2.1995, the Full Bench so constituted instead of deciding the reference requested the Chief Justice to constitute a Bench of five Judges for considering the correctness or otherwise of the Full Bench decision of this Court in Krishna Bhagwan's case (supra). Nearly, five years thereafter, this Special Bench has been assigned the job of considering whether or not the decision rendered by the earlier Full Bench in the case of Krishna Bhagwan (supra) has laid down the correct procedure to be followed by the appellate Court in case during the pendency of the appeal, a plea is taken by the accused that at the time of the occurrence he was a delinquent child/juvenile.
8. Indeed, in the context of the provisions of the West Bengal Children Act, 1959, the apex Court has held in the case of Gopinath Ghosh case (supra) that even if an accused does not take the plea of minority/childhood at the initial stages of trial if he takes such a plea at the stage. of appeal and if the appellate Court is satisfied on inquiry being made in this regard or otherwise that he was a delinquent child at the time offence was committed, such accused is entitled to the benefit of the provisions of the Children Act. The apex Court has further held that trial of such an accused by a Court other than Children's Court or designated Court, as the case may be, is without jurisdiction and conviction and sentence founded on the basis of such trial being without jurisdiction, is liable to be set aside. On facts of the case, the apex Court set aside the conviction and sentence of the appellant before it, and remitted the matter to the Magistrate for proceeding further in accordance with law keeping in view the provisions of the West Bengal Children Act, 1959. However, in Krishna Bhagwan's case (supra) even though the Full Bench followed the ratio of Gopinath'ts case (supra) that even if an accused does not take the plea of minority in course of his trial and takes such a plea for the first time at the appellate stage, he is entitled to the benefit of the children/juvenile law if he is found to be a child or juvenile, the Bench prescribed altogether a new procedure to be followed, instead of setting aside both conviction and sentence of the accused-appellant and directing fresh inquiry/trial by children or Juvenile Court. It is not that the learned Judges comprising the Full Bench were not aware of the procedure that was adopted by the apex Court in Gopinath Ghosh's case (supra). After referring to the observations made by the apex Court in Gopinath Ghosh's case at page 240 of the report, the Bench adverted to the procedure followed by the apex Court in the case in the following terms:
thereafter the conviction under Section 302 of the Penal Code and sentence of imprisonment for life of the accused in question was set aside and case was remitted to the learned Magistrate for disposal in accordance with law, that is, in accordance with the West Bengal Children Act.
The Full Bench departed from the procedure adopted by the apex Court in the case of Gopinath Ghosh's (supra) deliberately and for genuine reasons.
9. I have already stated that with effect from 2.10.1987, the Juvenile Justice Act, 1986 applicable in all the States of the Union of India had come into force. The provisions of the said Act in respect of how a Juvenile delinquent has to be dealt with and what nature of order can be passed by Juvenile Court against a delinquent juvenile and what orders cannot be passed, etc. are almost similar to the provisions of the West Bengal Children Act, 1959 and Bihar Children Act, 1982 with certain special provisions in respect of pending cases. Section 26 of the Juvenile Justice Act provides that '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 Juvenile Court 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 the juvenile has committed the offence." Therefore, it is manifest that if any proceeding in respect of a juvenile was pending in any Court in any area on the date on which the Juvenile Justice Act came into force in that area (irrespective of the fact whether in that particular area just prior thereto any law relating to trial or inquiry of a child like Children Act was in force or not), such proceeding was to be continued to that particular Court as if the Juvenile Justice Act has not been passed. And if the Court in which the proceeding was pending finds (on evidence) that the juvenile had committed an offence, it has to record such a finding and instead of passing any sentence in respect of the juvenile concerned, forward him to the juvenile Court for passing orders in accordance with the provisions of the said Act as if it had been satisfied on inquiry under the said Act that, the juvenile has committed the offence. In other words, in cases of juvenile being tried by a regular Court when the Juvenile Justice Act came into force, the legislature in its wisdom did not consider it necessary to direct trial of such juvenile by a Juvenile Court. Instead the Legislature required by enacting Section 26 that such inquiry or trial shall be concluded by the regular Court as if the said Act had not come into force and arrive at a finding of guilt as if it had been satisfied of such guilty on inquiry in accordance with the provisions of the said Act.
10. It is worth mentioning that while laying down the procedure to be followed by the appellate Court. The full Bench had specifically referred to the provisions of Section 26 of the Juvenile Justice Act, which have to be followed by the Court in proceedings commenced before coming into force of the Juvenile Justice Act and pending when the Act came into force. In Krishna Bhagwan's case (supra), the occurrence had taken place and trial culmination in conviction and sentence of the appellant leading to appeal there against before Juvenile Justice Act came into force. However, the reference came to be decided by the Full Bench on 27.3.1989, that is, after coming into force of the Juvenile Justice Act. In other words, when the said Act came into force, the Criminal proceeding by way of appeal by the accused was pending in this Court. Therefore, by dint of the dictate of Section 26 of the Juvenile Justice Act, the Full Bench had to lay down the procedure that if on hearing the appeal, the Court (the appellate Court) finds that conviction of the appellate is not sustainable and is fit to be set aside, the matter shall end then and there by allowing the appeal and acquitting the appellant without any inquiry respecting his plea of minority. However, if on evidence the (appellate) Court finds that the appeal has no merit and likely to be dismissed and at the same time it is also prima facie satisfied of the plea of minority taken by the appellant for the first time before it, it shall require the trial Court to make an inquiry respecting such plea and if on such inquiry the appellate Court is satisfied that the appellant was a juvenile on the date of the occurrence, instead of dismissing the appeal sent the matter to a Juvenile Court having jurisdiction to pass orders in accordance with the provisions of Sections 21 and 22 of the Juvenile Justice Act. The law itself mandates that the Court before which the proceeding against a Juvenile is pending is competent to record such a finding of guilt on evidence as if such finding has been recorded on Inquiry having been made by it in accordance with the provisions of Section 20 read with Section 39 of the Juvenile Justice Act. There is no question of the appellate Court pre-empting the Juvenile Court from recording any other finding as apprehended by the learned Judges of the Division Bench. The Juvenile Court has only to pass order in. terms of Sections 21 and 22 of the Juvenile Justice Act on the finding of guilt recorded by the appellate Court. As has been observed in para 25 of the judgment in Krishna Bhagwan's case (supra) Section 26 of the Juvenile Justice Act will apply to trials appeals of revisions which were pending when the said Act came into force. Juvenile, if found guilty, shall be forwarded to the Juvenile Court which shall pass orders in accordance with the provisions of the said Act.
11. The law is well settled that a decision is an authority only for what it actually decides on the particular facts and circumstances of its own. As has been held by the Apex Court in the case of Union of India v. Dhanwanti Devi and Ors. . In order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts of a case in which the decision was given and what was the point which had to be decided. Two decision of the Full Bench of this Court in the case of Krishna Bhagwan (supra) was rendered on facts of the case before the Bench and specific provisions of law in this regard contained in Section 26 of the Juvenile Justice Act. If that provision was applicable, in respect of a proceeding against a known/declared delinquent child or delinquent juvenile, there is no reason why the same provision would not be applicable to a proceeding in which the accused takes the plea of his minority or childhood for the first time in course of an appeal or revision against his conviction, as the case may be. Therefore, to discover a conflict between the decisions of the apex Court in Gopinath Ghosh's case (supra) and of the Full Bench of this Court in Krishna Bhagwan's case (supra) shall be tantamount to doing injustice to both the decisions laying down procedures to be followed when a delinquent child/juvenile takes the plea of minority for the first time in appeal. Gopinath Ghosh's case was decided by the apex Court in the context of the provisions of the West Bengal Children Act; whereas Krishna Bhagwan's case was decided by the Full Bench of this Court in the context of the provisions of the Juvenile Justice Act, particularly of Section 26 thereof mandating the Court, in such a circumstance to record a finding of own regarding the guilt of the delinquent child/juvenile on the date of the evidence brought on record in course of trial before the plea of minority was taken and then to send the delinquent child/juvenile the Juvenile Court for passing appropriate order. in accordance with Section 22 of the said Act. In other words, in between Gopinath Ghosh's case (supra) decided by the apex Court and Krishna Bhagwan's case (supra) decided by the Full Bench of this Court, the Juvenile Justice Act containing specific provisions in Section 26 thereof prescribing procedure to be adopted had come into existence and supervened. No such provision was available when the Apex Court had decided the case of Gopinath Ghosh (supra).
12. It will appear that the procedure adopted by the Apex Court in the case of Gopinath Ghosh, (supra) was not consistently followed by the same Court in a number of subsequent decisions. In the case of Bhoop Ram v. State of U.P. , appellant Bhoop Ram claiming to be aged less than 16 years on the date of occurrence which had taken place on 3.10.1975, was tried by a Sessions Court on charges under Sections 302, 323 and 324 read with Section 149, IPC and sentenced to imprisonment for life. According to the appellant, he being a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 was not liable to be so sentenced, but was entitled to be sent to an approved school for detention till he attained the age of 18 years. However, the plea of minority having been established an evidence, the apex Court held that accused was wrongly sentenced to imprisonment instead of being treated as a child under Section 2(4) of the U.P. Children Act and sent to an approved school for contention. Consequently, the apex Court maintained the conviction of the appellant Bhoop Singh but quashed the sentences imposed on him in view of the fact that by the time the appeal was decided he has already crossed the age of 18 years and, therefore, incapable of being detained in an approved school.
13. In the case of Pradeep Kumar and Ors. v. State of U.P. , decided by a three-Judge Bench of the apex Court also the appellants Pradeep Kumar, Krishan Kant and Jagdish were convicted and sentenced to imprisonment for life for offence under Section 302 read with Section 34, IPC. In appeal, they took a plea that at the time of the occurrence, they were aged about 15, 15 and 14 years respectively and, therefore, a child within the meaning of Section 2(4) of the U.P. Children Act, 1951. Consequently, instead of being sentenced to imprisonment they should have been sent to an approved school for detention till they attained the age of 18 years. On being satisfied of the plea of the appellants, the apex Court maintainer their conviction, but quashed the sentences awarded to them on the ground that by the time the appeal was decided, the appellants had become more than 30 years old.
14. In the case of Abdul Mannan and Ors. v. State of West Bengal , the appellants who were 'children' within the meaning of the West Bengal Children Act at the time of the occurrence were being tried by a Sessions Court instead of a Children Court. Even after repeal of the West Bengal Children Act, 1959 by Juvenile Justice Act, 1986, they were required to be tried by a Juvenile Court, but they were being tried by Court of Addl. Sessions Judge in absence of Constitution of a Juvenile Court. The appellants took the plea that in such a situation, their trial should have been conducted by the Sessions Judge and not Addl. Sessions Judge. The apex Court held that the term 'Sessions Judge' includes Addl. Sessions Judge. Therefore, the appellants could be lawfully tried by Addl. Sessions Judge. In para 5 of the Judgment their Lordships observed:
The object of the Juvenile Justice Act is to reform and rehabilitate the Juvenile offenders as useful citizens in the society. In the facts and circumstances of the case, the benefit of the Central Act was denied to them due to their own act of keeping the trial pending by protracting litigation kept the case pending trial and in the meanwhile the appellants had crossed the age of the juvenile offenders and became adults. We do not think it is a proper case for our interference as no useful purpose under Central Act would serve.
With such observations, the apex Court dismissed the appeal.
15. In the case of Bhola Bhagat v. State of Bihar AIR 1998 SC 236, appellants Bhola Bhagat, Chandan Sen Prasad and Mansen Prasad, were jointly tried along with some other accused-persons for offences under Sections 302, 149, 148, IPC and were sentenced to undergo imprisonment for life. In the trial Court as well as in the High Court in appeal, they had taken the plea that they were juvenile/child at the time of the occurrence which had taken place in September, 1978 and therefore, entitled to the benefit of the Bihar Children Act. However, their plea was turned down. On appeal to the apex Court, a two-Judge Bench held that in view of the ratio of Copinath Ghosh's case (supra) and Bhoop Ram's case (supra) approved by a three-Judge Bench of the apex Court in the case of Pradeep Kumar (supra), the appellants named above could not be denied the benefit of the provisions of the Act on the basis of Balwant Singh's case relied upon by this Court. In the case of State of Haryana v. Balwant Singh 1983 Supp. (1) SCC 409, the apex Court had declined to the appellant thereof the privilege and benefit of Haryana Children Act on the sole ground that he had not taken the plea of minority either in the committing Court or in the Court of Sessions in course of trial, after referring to the decisions rendered by the apex Court in the case of Gopinath Ghosh (supra), Bhoop Ram's (supra) and Pradeep Kumar (supra) and the decision of the full Bench of this Court in the case of Krishna Bhagwan, (supra) the apex Court has held in the case of Bhola Bhagat v. State of Bihar (supra) that an accused cannot be deprived of the benefit of Children Act/Juvenile Justice Act only on the ground that he had failed to take any such plea at an earlier stage. However, the apex Court affirmed the conviction of the appellants on the charges framed against them, but quashed the sentence awarded to them.
16. In other words, in the case of Bhola Bhagat v. State of Bihar (supra) the apex Court did not follow the procedure adopted either by the same Court in the case of Gopinath Ghosh v. West Bengal (supra), or by the Full Bench of this Court in the case of Krishna Bhagwan v. State of Bihar (supra), even though the apex Court had referred to both the decisions in its judgment. Thus, it is manifest that the apex Court in its subsequent decisions including one rendered by a three-Judge Bench in the case of Pradeep Kumar v. State of U.P. (supra) did not approve of the ratio of Gopinath Ghosh v. State of West. Bengal (supra) that even if at the stage of appeal plea of minority is taken and accepted by the appellate Court, both his conviction and sentence shall be vitiated on the ground of lack of jurisdiction in consequence of trial being held by a Court other than a Juvenile Court, instead only the sentence was found to have vitiated and consequently at aside by sustaining his conviction.
17. Incidentally, in the case of Bhola Bhagat v. State of Bihar (supra), the three appellants had bee tried, convicted and sentenced to imprisonment in the teeth of protest by them on the plea that they were children within the meaning of Bihar Children Act and could not be tried by a regular Court. Still, the apex Court refrained from holding that in consequence of their trial being conducted by an incompetent Court, the same had vitiated and become unsustainable. On the other hand, their conviction was maintained but sentences were set aside in all probability because by the time their appeals were decided on 24.10.1997, the three appellants had crossed the age of 30 years and all of them had suffered some amount of incarceration. Therefore, from the above decisions, it emerges that simply because an accused was tried by a regular Court instead of a children of Juvenile Court, more particularly, in consequence of his not taking plea of minority before the committal Court if the case was required to be committed, or in the trial Court, and takes such plea for the first time in the appellate Court, his trial and finding of his guilt on such trial cannot be taken as vitiated so as to be set aside requiring fresh trial as was held in the case of Gopinath Ghosh v. State of West Bengal (supra).
18. Since in terms of Sub-section (1) of Section 22 of Juvenile Justice Act and similar provisions contained in Children Act, only prohibition was in respect of sentencing a delinquent child or juvenile on being found guilty to death or imprisonment, only sentence imposed against such relinquent child/juvenile was quashed, even without requiring such delinquent child or juvenile of being sent to a Juvenile Court for passing orders in accordance with the provisions of Sections 21 and 22 of the Juvenile Justice Act. Therefore, it cannot be said that the procedure laid down by the Full Bench in the case of Krishna Bhagwan v. State of Bihar (supra) to be followed in such a situation in incorrect and contrary to law. Accordingly, the Full Bench has laid down correct procedure in the context of Section 26 of the Juvenile Justice Act.
19. However, as noticed earlier, in a number of its subsequent decisions, the apex Court while affirming the finding of guilt of such a delinquent child or juvenile recorded by a Court other than children/juvenile Court, maintained the conviction, but set aside the sentence passed against such delinquent child/juvenile instead of requiring him to be sent to the Juvenile Court for being dealt with in accordance with the provisions of Sections 21 and 22 of the Juvenile Justice Act. As said down in the case of Krishna Bhagwan v. State of Bihar (supra). The question then arises what procedure should be followed; whether the procedure which was laid down by the Full Bench of this Court in the case of Krishna Bhagwan v. State of Bihar (supra) or that adopted by the apex Court in Bhoop Ram v. State of Bihar (supra); Pradeep Kumar v. State of U.P. (supra); Abdul Mannan v. State of West Bengal (supra) and Bhola Bhagat v. State of Bihar (supra). In the abovementioned cases, the accused-persons who were children or juvenile at the time of commission of the offences had ceased to be same, as a matter of fact, had crossed the age of 30 years. Moreover, they had undergone imprisonment as well by the time they (sic). Therefore, it was this backdrop that while maintaining their conviction, the apex Court thought it just and proper only to set aside their sentences instead of requiring them to be forwarded to a Juvenile Court for being dealt with in accordance with the provisions of Section 21 and 22 of the Juvenile Justice Act. But, a situation may arise in which a delinquent juvenile or child is tried by an ordinary Court of Magistrate or Sessions Court on plea of minority not having been taken, convicted and sentenced to imprisonment, etc. while still a child or juvenile, that is, below 16 years in case of a boy and below 18 years in case of a girl, and when he takes the plea of minority in the Court of appeal and on inquiry, it is found that he or she is still a juvenile or child capable of being reformed or rehabilitated by being dealt in accordance with the provision of Section 21 of the Juvenile Justice Act, in my opinion, in such a situation, the procedure laid down by the Full Bench in the case of Krishna Bhagwan (supra) should be followed as the same shall be not only in the interest of the juvenile but also in the interest of the society as well. However, by the time the accused takes the plea of his minority, he not only ceases to be a juvenile but has also crossed the age of adolescence and at the same time has suffered incarceration in course of trial and or pending appeal, no useful purpose shall be served by dealing him in accordance with the provision of Sections 21 and 22 of the Juvenile Justice Act. It may be mentioned that according to proviso to Sub-section (1) of Section 22 of the Juvenile Justice Act in circumstance stated therein, a delinquent juvenile can be ordered by the Juvenile Court to be kept in safe custody, subject to approval by the State Government and according to the proviso to Sub-section (2). Therefore, such period of detention cannot exceed the maximum period of imprisonment to which a juvenile would have been sentenced for the offence committed. It has been held by the Full Bench in Krishna Bhagwan's case (supra) that such a prior can be only three years in view of the fact that Juvenile Court being comprised of a Judicial. Magistrate of 1st class can pass sentence up to three years only. Therefore, if a juvenile is tried, convicted and sentenced to imprisonment by an ordinary Court instead of a Juvenile Court, in the circumstances referred to above, and by the time his plea of minority is taken, accepted and appeal decided by the appellate Court, he is found to have suffered incarceration for more than the period permissible under Sub-section (2) of Section 22 of Juvenile Justice Act, when at the same time has crossed the age of adolescence, it shall not be just and proper to forward him to a juvenile Court for order in accordance with the provisions of Sections 21 and 22 of the Juvenile Justice Act. In such a situation, if on evidence recorded by the trial Court, the appellate Court affirms the finding of guilt, the conviction shall be maintained, but sentence set aside.
20. In the instant case, the appellants are stated to have committed murder on 26.12.1991, according to the prosecution story, in course of a brawl that had taken place over the question of playing cards, appellant No. 1 Gopal Nag stabbed the deceased to death when appellant No. 2 Balmohan Nag had overpowered him. Consequently, appellant No. 1 had been convicted under Section 302, whereas appellant No. 2 under Section 302 read with Section 34, IPC. But both the appellants have been sentenced to undergo imprisonment for life. The plea that had been taken on behalf of appellant. No. 1 is that at the time of commission of the offence, he was a boy below 16 years and, therefore, a juvenile within the meaning of Section 2(h) of Juvenile Justice Act and entitled to be dealt with in accordance with the provisions of the said Act. The grounds on which such a plea has been taken is that when the said appellant was being examined under Section 313 of the Code of Criminal Procedure by the trial Court on 14.12.1992, nearly one year after the occurrence, he had stated his age to be 16 years and even the trial Court has assessed him to be aged about 18 years. The Division Bench, before which such a plea was canvassed, in course of hearing, did not express any opinion regarding the question whether it was prima facie satisfied of the plea taken. If what appellant No. 1 had stated in the trial Court in course of his examination under Section 313, Cr PC were taken to be correct, definitely at the time the occurrence had taken place, he was below 16 years of age. However, if the age of the said appellant as assessed by the trial Court on 14.12.1992, is to be accepted, the appellant No. 1 would have been more than 16 years old when the occurrence had taken place. Therefore, in my opinion, the correct procedure to be followed will be to hear the appeal on merit and if on hearing the Counsel of the appellants as well as the respondent and perusal of evidence accused in course of trial, the Division Bench finds that finding of guilt of the appellant cannot be sustained and appeal is fit to be allowed, such an order may be passed and appellant acquitted without the necessity of inquiring into the question whether or not appellant No. 1 was a juvenile delinquent as on 26.12.1991. If, however, the Division Bench finds that appeal has no merit and finding of guilt and conviction on the basis thereof is to be maintained and at the same time it is prima facie satisfied of the plea that appellant No. 1 was a juvenile delinquent, that is, below 16 years of age, it shall causes an inquiry in this regard to be made either by the Sessions Judge of Jamshedpur or by the juvenile Court, if one exists there, in accordance with the provision of Section 32 of the Juvenile Justice act and call for a report. If on such inquiry report, the Division Bench is satisfied that appellant No. 1 was not a delinquent juvenile at the time of the occurrence, it shall proceed to dispose of the appeal on merit. However, if the Division Bench is satisfied that at the time of the occurrence, appellant No. 1 was a juvenile delinquent being below 16 years of age, it shall pass appropriate order in the light of procedure prescribed above keeping in view the present age of the appellant and the period of incarceration suffered by him.
21. Needless to say that when such an inquiry is ordered and made, the guidelines prescribed by the Pull Bench in the case of Krishna Bhagwan v. State of Bihar (supra) and by the apex Court in the case of Bhola Bhagat (supra) are religiously followed by the Court making inquiry lest an accused found guilty of committing serious offence gets the benefit of Juvenile Justice Act on false plea of minority by producing fake and fabricated document of age. As observed by the Full Bench in Krishna Bhagwan's case (supra) such determination of age 'should not be based merely on Written opinion of the doctors produced before this Court. Prosecution has right to cross-examine such medical or forensic experts who have give their opinions about the age of the accused in order to demonstrate that the accused was not a juvenile on the date of the commission of the offence". As has been observed by the apex Court in the case of Bhola Bhagat (supra) if necessary, both the parties may also be asked to lead evidence in support and/or rebuttal of the age of the accused.
22. Let the appeal be listed before a Division Bench for hearing and disposal on merit in the light of the observations made above.
A.K. Prasad, J.
1. I have the privilege to go through the separate judgments prepared by learned Brothren M.Y. Eqbal, J., G.S. Chaube, J., D.N Prasad, J., and Anil Kumar Sinha, J., on the subject which has come up before this Special Bench. I am in Full agreement with the view expressed by ray learned Brother G.S. Chaube, J., as to the answers proposed and the reasons therefor given by him. I, however, wish to add a few words of my own.
2. The decision in the case of Gopinath Ghosh v. State of West Bengal was rendered in a case arising out of Bengal Children Act, 1959 and before the enactment of Juvenile Justice Act, 1986. By the time the case of Krishna Bhagwan v. The State of Bihar 1991(1) BLJR 321 (FB) came up earlier before this Court for consideration Juvenile Justice Act, 1986, had been enacted, which came into force on 2.10.1987. In consonance with the decision of the apex Court in Gopinaih's case (supra), the Full Bench in the case of Krishna Bhagwan's case (supra), after noticing the different provisions of the Bihar Children Act, 1982, arid the Juvenile Justice Act, 1986, held that the plea that the accused in question was a child within the meaning of the Act can be entertained at the appellate stage. The full Bench further held that "if the plea that the accused in question was a child or juvenile on the date of the Commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by Section 26 of the Juvenile Act and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, there is no question of holding any inquiry in respect of the accused being a child on the relevant date but, if the finding of the guilt is recorded by the Court below is affirmed and this Court on the basis of the materials on record is prima facie satisfied that the accused may be a child/juvenile within the meaning of the relevant Act on the date of the Commission of the offence, it should call for a finding from the Children's Court/Juvenile's Court in accordance with Section 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of Section 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass orders in accordance with Sections 21 and 22 of the Act (Juvenile Justice Act). In this respect, the Full Bench departed from the procedure adopted by the apex Court in the case of Gopinath (supra), although it was noticed by the full Bench that in Gopinath's case, the conviction of the appellant (Gopinath Ghosh) under Section 302 of the Indian Penal Code and sentence of imprisonment for life imposed on him was set aside and the case was remitted to the learned Magistrate for disposal in accordance with law; i.e. in accordance with the West Bengal Children Act. It may be mentioned that in Gopinath's case (supra), who was juvenile delinquent, it was held that the entire trial of the appellant by the regular Court was without jurisdiction and stood vitiated.
By the time Krishna Bhagwan's case came up before the Full Bench for consideration, Juvenile Justice Act, 1986 had come into force and Section 26 of the Act therein envisaged as hereunder:
26. Special provision in response 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 Juvenile Court which shall pass orders in respect of the juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence.
So under the mandate of law as laid down under Section 26 of the Act, the procedure was adopted by the Full Bench in the Krishna Bhagwan's case (supra). No such provision was available when the Apex Court had decided the case of Gopinath (supra) while the Juvenile Justice Act containing the specific provision in Section 26 of the Act therein had supervened by the time Krishna Bhagwan's case (supra), came to be decided by the Full Bench of this Court. It is well-settled that a decision is an authority only for what it actually decided on particular facts and circumstances of the case. Thus, in my considered view, there is no conflict in the decisions rendered by the Apex Court in the cases of Gopinath (supra) and by this Court in Krishna Bhagwan (supra).
In the case of Bhola Bhagat v. The State of Bihar AIR 1998 SC 236, the appellants Bhola Bhagat, Mansen Prasad and Chandrasen Prasad, were jointly tried along with some other accused-persons for the offences under Sections 302, 149, and 148 of the Indian Penal Code and were sentenced to undergo imprisonment for life. The case arose out of the occurrence which had taken place on 29th September, 1978. The trial Court did not give benefit to the three appellants under the Bihar Children Act, 1970. In the High Court, in appeal, they had taken the plea that they were juvenile/children at the time of the occurrence and their trial along with the adult accused by the criminal Court was not in accordance with law. However, their plea was turned down by the appellate Court with the following observations:
Since, the alleged occurrence had taken place in September 1978 and the statements of the appellants had been recorded in February and March 1983, it was contended that even by the estimate of the age of the appellant made by the Court, all the three appellant were below 18 years of the age on the date of occurrence. It appears that except for the age given by the appellants and the estimate of the Court at the time of their examination under Section 313 of the Code of Criminal Procedure, there was no other material in support of the appellants claim that they were below 18 years of age.
On appeal, the apex Court (a two-Judge Bench) held that in view of the ratio in Gopinath's case (supra) and Bhoopram v. State of U.P. , which was approved by the three-Judge Bench of the apex Court in the case of Pradeep Kumarv. State of U.P. , an accused cannot be deprived of the benefit of the Children Act/Juvenile Justice Act only on the ground that he had failed to take any such plea at an early stage. However, the apex Court affirmed the conviction of the appellants on the charges framed against them, but set aside the sentences awarded to them.
In the case of Bhola Bhagat (supra), the apex Court did not follow the procedure adopted by the apex Court in Gopinath's case (supra) or by the Full Bench of this Court in Krishna Bhagwan's case (supra), even though the apex Court has referred to both the decisions in its judgment. The ratio of Gopinath's case, (supra) that even if at the stage of appeal, the plea of minority is taken and accepted by the appellate Court, both his conviction and sentence shall be vitiated on the ground of lack of jurisdiction in consequence. of the trial being held by the Court other than Juvenile Court, was not followed therein. Instead, only the sentence was found to have been vitiated and consequently set aside by staining his conviction. Thus, it emerges from the decision that simply because an accused is tried by regular Court, instead by Children Court/Juvenile Court and the plea of minority had been taken at the appellate stage in appeal, the finding of his guilt on such trial cannot be vitiated so as to set aside his conviction, and sentence, requiring a fresh trial as was held in the case of Gopinath (supra).
However, in Santenu Mitra v. State of West Bengal , a three-Judge decision, the apex Court has laid down that when in the trial stage, itself, the plea is taken that the accused was child on the date of Commission of the offence (which was 19.2.1988), he was entitled to the protection of the Juvenile Justice Act, 1986, and if on inquiry, he is found to be below 16 years on the date of the incident, the trial is to be regulated under the Juvenile Justice Act, 1986.
D.N. PRASAD, J.
1. I have had the advantage of going through the judgment prepared by my learned brethren Hon'ble Mr. Justice M.Y. Eqbal and Hon'ble Mr. Justice G.S. Chaube. Both of them have taken notice of the provisions of the Juvenile Justice Act and made a candid approach to the problems and contentions raised before us. I agree with the view/decision taken by Hon'ble Mr. Justice M.Y. Eqbal, but I regret my inability to agree with the opinion of views expressed by learned brother G.S. Chaube, J. Thus, I wish to add a few words of my own.
2. The present reference was made by a division Bench of this Court doubting the correctness of the Full Bench judgment of this Court in the case of Krishna Bhagwan v. State of Bihar 1989 PLJR 507 (FB) in view of the decision of the Supreme Court in the case of Gopinath Ghosh v. State of West Bengal AIR 1984 SC 137.
3. In the present appeal (Cr. appeal No. 23/ 93 (R)), two appellants, namely, appellant No. 1 Gopal Nag and appellant No. 2, Lal Mohan Nag were convicted for the offences under Sections 302 and 302/34, IPC respectively and both of them were sentenced to undergo rigorous imprisonment for life. It was pointed out in course of argument that appellant No. 1 Gopal Nag was a minor and aged about 16 at the time of occurrence which took place on 26.12.1991. Thereafter-, appellant No. 1, being a juvenile at the time of occurrence, is entitled to be dealt with in accordance with the provisions of the Juvenile Justice, Act, 1986 and his age was assessed to be about 18 years as on 14.12.1992 at the time of his examination under Section 313 of the Code of Criminal Procedure. It was pointed before the Division Bench that the entire trial leading to the conviction or appellant No. 1 who was minor at the time of occurrence is without jurisdiction and the whole proceeding was vitiated in view of the law laid down by the apex Court in the case of Gopinath Ghosh v. State of West Bengal .
4. At this stage, it may be pointed out here that no plea was taken by the appellants in course of trial that appellant No. 1 Gopal Nag was the child within the meaning of Bihar Children's Act, 1982, rather for the first time this plea has been taken before this Court at the appellate stage. Likewise, the appellant Krishna Bhagwan did not take plea either in the committing Court or in the trial Court that he was a child below 16 years of age, but he took a plea for the first time in this Court at the time of hearing of the appeal. It is also clear that the Juvenile Justice Act, 1986 had also come into force on 2.10.1987. In Gopi Nath Ghosh's case the plea was raised for the first time in course of argument before the apex Court that on the date of occurrence the appellant was aged below 18 years and was, therefore, child within the meaning of expression 'child' as juvenile in the West Bengal Children's Act, 1959. The plea of minority taken by the appellant Gopi Nath Ghosh was considered by the apex Court and the matter was remitted to the Court below for inquiry for ascertainment of the age and on such inquiry, it was satisfied that at the time of occurrence the appellant was aged between 16 and 17. It was held that a child is entitled to the benefit of the provision of the West Bengal Children's Act, 1959. It was observed in the following manner:
The report of the learned Addl. Sessions Judge is self-evident. It is unquestionably established on unassailable evidence that on August 1974 the date of the occurrence, appellant was aged between 16 and 17. He was, therefore, a juvenile deliquent. Obviously, the learned Magistrate could not have committed the case to the Court or Sessions Judge. Only an inquiry should have been held against him, as provided in Section 25 of the Act and unless the case or the appellant falls within the proviso to Section 24(2) of the Act, he could not be sentenced to suffer imprisonment. Therefore, the entire trial of the appellant is without jurisdiction and vitiated. Therefore, the conviction of the appellant for having committed the offence under Section 302, IPC and sentence for imprisonment for life imposed by the learned Addl. Sessions Judge and confirmed by the High Court are unsustainable and they must be set aside.
5. It is true that there is specific provision laid down under Section 32 of the Juvenile Justice Act for holding due inquiry for determination of the age. Section 32 of the Juvenile Justice Act enunciates as follows:
(1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding where the person is a juvenile or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it, shall for the purpose of this Act be deemed to be the true age of the person.
6. Apparently, Section 32 of the Juvenile Justice Act provides power to the Juvenile Court to make due inquiry in respect of the age of the accused on the date of Commission of the offence and for that purpose such Court has to take evidence as may be necessary and to record a finding whether the accused in question was juvenile at the time of occurrence.
7. Recently, the apex Court considered the similar question in the case of Bhola Bhagat v. State of Bihar AIR 1998 SC 236. The same question in respect of the minority was raided before the trial Court and the High Court and both the Courts even considered the plea but denied the benefits of the Act. The apex Court held in the case of Bhola Bhagat (supra) as under:
The plea had been raised both in the trial Court as well as in the High Court and both the Courts even considered the plea, but denied the benefits to the appellants for different reasons. The appellants cannot be denied the benefits of the provision of the Act on the basis of Balwant Singh's case, 1993 Supp (1) SCC 409.
8. The Apex Court had also taken notice of the Full Bench decision of this Court Krishna Bhagwan v. State of Bihar 1989 PLJR 507 and observed as follows:
The Full Bench of the Patna High Court considered the question relating to the determination of the age of the accused and the belated raising of that plea and opined that though the normal rule is that a plea unless it causes to the very root of the jurisdiction should not be allowed to be taken at the appellate stage, specially when it required the investigation into the question of fact, but a plea that the accused in question was a child within the meaning of the Act can be entertained at the appellate stage also and should not be over looked on technical grounds. After noticing the provisions of the Bihar Children's Act 1982, and the Juvenile Justice Act, 1986 the Full Bench of the Patna High Court opined taking into consideration the aim and intention of the two Acts that the application of the provisions of the Act should not be denied to any offender where by the time the trial commences or consider the accused has ceased to be juvenile although when the offence was committed he was a juvenile within the meaning of the Act. The Court then laid down the procedure which should be followed when a plea is raised to the effect that the accused on the date of the offence was a child, and held that inquiry into that aspect should be conducted and on the basis of the evidence led at the inquiry the Court should record a finding whether or not on the date of the Commission of the offence, the accused was a child within the meaning of the Act.
9. The apex Court allowed the appeal of Bhola Bhagat in part with a finding as under:
The correctness of the estimate of age as given by the trial Court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted and correctness of the estimate of age of the three appellants as given by the trial Court. Therefore, these three appellants should not be denied the benefits of the provisions of a socially progressive statute. In our considered opinion, since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the appellants squarely fell within the definition of the expression "child". We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the appellants as given by the trial Court, though the correctness of that estimate has not been put in issue before any forum. Following the course adopted in Gopinath Ghosh AIR 1984SC 237, Bhoop Ram AIR 1989 SC 1329 and Pradeep Kumar's case AIR 1994 SC 104 (supra), while sustaining the conviction of the appellants under all the charges quash the sentences awarded to them.
10. It is true that the delinquent juvenile should not be deprived the benefits of a socially-oriented Act, like Juvenile Justice Act, 1986. If there is a doubt about correctness of the age of the delinquent juvenile, a due inquiry be conducted as laid down under Section 32 of the Juvenile Justice Act, 1986, at the very initial stage to determine the age of the juvenile and such plea, if arose at any stage, should not be brushed aside without due inquiry.
11. In the case of Krishna Bhagwan, the Full Bench had observed that "if the plea that the accused was a child of juvenile on the date of Commission of offence, has taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by Section 26 of the Juvenile Justice Act and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, there is no question of holding any inquiry in respect of the accused being a child on the relevant date but if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of the material on record is prima facie satisfied that the accused may be a child/juvenile within the meaning of the relevant Act on the date of the Commission of the offence, it should call for a finding from the Children's Court/Juvenile Court in accordance with Section 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of the Section 26 of the Juvenile Justice Act should pass an order directing the juvenile Court to pass orders in accordance with the Sections 21 and 22 of the Act.
12. As noticed above, it appears to me that if the plea that the accused was a child or juvenile at the time of occurrence is taken and if this Court on the basis of the materials on record found the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of the materials on record is prima facie satisfied that the accused is a child within the meaning of the relevant Act on the date of the Commission of the offence, then in my view, there appears no need for sending back the record to the Juvenile Court and call for a finding from the Juvenile Court when the order of sentence of the accused can be set aside/quashed after sustaining the conviction, as laid down in the case of Bhola Bhagat (supra). If there is no dispute in holding that the accused was a minor/juvenile at the time of Commission of crime, in such circumstance, remitting the case to the trial Court for recording finding on the point of age, in my view, would further delay the disposal of the appeal and would not serve any useful purpose, specially when this Court is satisfied that the accused is minor within the meaning of the Juvenile Justice Act and the appellant who was minor at the time of Commission of crime can be released after setting aside the order of sentence. The same view has again been reiterated by this Court in the case of Bibhuti Mandal v. State of Bihar 2000(2) PLJR 315, after relying the case of Bhola Bhagat (supra).
13. Having regard to the facts of the case coupled with the discussions made above, I am entirely in agreement with the views taken by learned brother, M.Y. Eqbsd, J.
A.K. Sinha, J.
I have the privilege of going through the judgments of my learned brothers Hon'ble Mr. Justice M.Y. Eqbal and Hon'ble Mr. Justice G.S. Chaube.
Having gone through their Lordships judgments which are no doubt well discussed, I find myself unable to concur with the views expressed by Hon'ble Mr. Justice G.S. Chaube and I fully agree with the views/decisions expressed by Hon'ble Mr. Justice M.Y. Eqbal, which in my humble view, is in consonance with the law laid down by the Supreme Court in Gopinath Ghosh case and Bhola Bhagat case.