Patna High Court
Ranjeet Kumar Jha vs State Of Bihar on 19 August, 2011
Equivalent citations: 2012 CRI. L. J. 759, (2011) 108 ALLINDCAS 32 (PAT), 2011 (108) ALLINDCAS 32 SOC, (2011) 4 PAT LJR 265
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.771 of 2008
Ranjeet Kumar Jha, Son of Sushil Kumar Jha, resident of Village-
Parasi, P.S.-Bangon, District-Saharsa. -Appellant.
VERSUS
The State of Bihar -Respondent.
================================================
Appearance :
For the Appellant : Mr. G.P. Jaiswal, Sr. Adv.
For the Respondent : Mr. Ashwani Kumar Sinha, A.P.P.
================================================
CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
AND
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Having heard Shri G.P. Jaiswal, learned Senior Counsel, amicus
curiae, at our request in support of the appeal and Shri Ashwani Kumar
Sinha, learned Additional Public Prosecutor, we propose to dispose of this
appeal at this stage itself.
For the reasons in detail recorded in our order dated 04.08.2011
briefly stated when the appeal was listed before us for consideration of the
handwritten application sent by the appellant praying for bail stating that
though he was literate he was unable to engage any counsel being poor
and his earlier bail applications to this Court had already been rejected
several times, we found to our shock and dismay that the trial Court in its
judgment under appeal had found the appellant to be about 28 years of age
which would have made him about 16 years at the time when the alleged
occurrence took place for which he was sentenced to life imprisonment.
We became curious and anxious in this regard. What shocked us more was
Patna High Court CR. APP (DB) No.771 of 2008
2 dt.19-08-2011
that the appellant had raised the plea of juvenility in the trial Court itself
and even though the trial Court found the appellant to be 16 years 5
months and 27 days old on the date of occurrence, that is, 09.08.1996, it
rejected the claim and proceeded to deliver judgment ignoring the
evidence on record as if the plea was never raised. The result was that
though the appellant was undisputedly a juvenile in conflict with law by
the judgment under appeal dated 28.06.2008, he was sentenced to life
imprisonment for an offence under Sections 302 and 201 of the Indian
Penal Code. Noticing this and the fact that the appellant himself had
written to this Court that he is not in a position to engage a Lawyer to
defend him, on our request Shri G.P. Jaiswal, learned Senior Counsel
agreed to assist the Court and after hearing the learned Senior Counsel and
the Additional Public Prosecutor and examining the records we reserved
the case for order and are now disposing the appeal itself.
Saharsa P.S. Case No.360 of 1996 (G.R. Case No.953 of 1996)
was registered for offences under Sections-302 & 201 of the Indian Penal
Code as against the appellant charging the appellant of committing murder
and causing the disappearance of the dead body of the deceased on
09.08.1996. After submission of chargesheet and committal of the case to
the Court of Sessions, Sessions Trial No. 68 of 1997 was registered in the
Court of Additional District Judge, F.T.C.-II, Saharsa.
It appears from the records that the appellant was also facing
another prosecution arising out of Bangwan P.S. Case No.57 of 1996
(G.R. Case No.647 of 1996) for, allegedly, committing another murder on
05.06.1996, for which Sessions Trial No.210 of 2003 was pending before
the Sessions Judge, Saharsa.
Patna High Court CR. APP (DB) No.771 of 2008
3 dt.19-08-2011
It appears that in course of the proceedings of this second
Sessions Trial No.210 of 2003, as before the Sessions Judge, Saharsa, a
plea was raised on behalf of this appellant on the basis of his matriculation
certificate as granted by the Bihar School Examination Board noting his
date of birth to be 12.02.1980, that the appellant was juvenile.
Apparently, the learned Sessions Judge, being prima facie satisfied,
referred the matter to the Juvenile Justice Board, Saharsa to enquire into
the matter. It constituted a Medical Board and considered its report as
well as the matriculation certificate. It noted as a consequence of its
enquiry that the date of birth of the appellant was 12.02.1980 and, as such,
on the date of occurrence of this second case, that is, on 05.06.1996 he
was much less than 18 years of age and, thus, declared him juvenile under
the Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as Juvenile Justice Act of 2000). He, accordingly,
sent his report to the Sessions Judge. The order of Juvenile Justice Board,
Saharsa is dated 30.05.2006 and it was duly exhibited in the present case
before the trial Court and marked as Ext. C.
Upon receipt of the report of the Juvenile Justice Board,
Saharsa, the learned Sessions Judge, Saharsa in Sessions Trial No.210 of
2003, noting that the appellant was much less than 18 years of age on the
date of occurrence, by its order dated 04.08.2006 remitted the matter for
final disposal to the Juvenile Justice Board, Saharsa in terms of the
Juvenile Justice Act of 2000. This order of learned Sessions Judge in
Sessions Trial No.210 of 2003 dated 04.08.2006 was exhibited in the
present case before the trial Court and marked as Ext. D.
Patna High Court CR. APP (DB) No.771 of 2008
4 dt.19-08-2011
On 08.11.2007 the appellant filed a petition in the present case
being Sessions Trial No.68 of 1997 as pending before the learned
Additional District Judge, F.T.C.-II, Saharsa claiming that he was a
juvenile and had been so found by the Juvenile Justice Board, Saharsa and
the learned Sessions Judge, Saharsa by virtue of Exts.C & D. From the
records, which we have perused the appellant's petition, clearly referred to
the aforesaid orders as also the amendment to the Juvenile Justice Act of
2000 by the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006. On behalf of appellant, it was urged that by virtue
of Section-7A as newly inserted and Section-20 as amended by addition
thereto a proviso and an explanation, he was a juvenile and had to be
given the benefit under the Juvenile Justice Act of 2000. From the
records, we find that the learned A.P.P. filed a rejoinder to the appellant's
petition, inter alia, stating that the Juvenile Justice Act of 2000, which had
come into force with effect from 01.04.2001, was prospective in
application and as on the said date the appellant was above 18 years of
age, he could not get the benefit thereof, being above 16 years of age on
the date of occurrence, which was 09.08.1996 when the Juvenile Justice
(Care and Protection of Children) Act, 1986 was in force, he could not get
the benefit of the Act of 1986 as the juvenile defined therein by virtue of
Section-2(h) thereof meant a boy not above the 16 years of age. We may
note with regret that he mentioned nothing about the amendments to the
Juvenile Justice Act of 2000 by Amendment Act of 2006 which was in
detail referred to and appended to the appellant's petition. What we find
more distressing is that the learned Additional Sessions Judge by his order
dated 19.12.2007 rejected the plea of the appellant even though he
Patna High Court CR. APP (DB) No.771 of 2008
5 dt.19-08-2011
recorded the finding apparently basing on Exts. C&D, that on the date of
occurrence, that is, on 09.08.1986 the appellant was 16 years 5 months and
27 days old. He held that as he was above 21 years on 01.04.2001 when
the Juvenile Justice Act of 2000 came in force, he could not get the benefit
of the said Act. Learned Additional Sessions Judge before whom the
matter was pending like the A.P.P. ignored to consider the amendment to
the Juvenile Justice Act of 2000 by the Amendment Act of 2006. Learned
Additional District Judge then proceeded to hear the final arguments in the
Sessions Trial No.68 of 1997 and delivered the judgment on 28.06.2008,
holding the appellant guilty under both Section-302 and Section-201 of the
Indian Penal Code and sentenced him to life imprisonment. What is more
distressing is that in the final judgment he has chosen not to refer to the
question of juvenility of the appellant at all, rather he has noted Exts.
C&D on behalf of defence but shown it to be merely certified copies of
orders stating in paragraph-23 of his judgment that they have been filed to
show that Krishna Kumar Jha, the uncle of the appellant was in inimical
terms with the appellant which was obviously, to his knowledge, incorrect.
Upon the conviction and the sentence being awarded appellant was taken
into custody to serve out the sentence and, as such, has continued in
custody till date, which is now over 3 years. His bail applications before
this Court were rejected without the question of juvenility being raised or
considered. As in the case under appeal the trial Court by order dated
19.12.2007 found the appellant to be 21 years of age on the date of
judgment, that is, 28.06.2008 our curiosity led to the discovery of the
aforesaid facts from the available records itself. It is because of this that
we decided to finally hear the appeal in detail as in our opinion permitting
Patna High Court CR. APP (DB) No.771 of 2008
6 dt.19-08-2011
detention of the appellant in custody any further would be travesty of
justice. If the appellant was to succeed on merits in the appeal itself then
there was no question of giving him the benefit of his juvenility, but if we
found that on facts the conviction had to be sustained then the appellant
had to be given the benefit of juvenility in terms of Section 7A read with
Section 20 of the Juvenile Justice Act, 2000 as amended and as he had
spent more than 3 years in prison serving out the sentence, any further
detention was totally unwarranted, if not illegal.
In view of the insensitivity to the legal issue as shown and
apparent from the judgment of the trial Court, which we say with regret is
not a stray case, we have thought it advisable to clear the misconception
prevailing in the Subordinate Courts of Bihar with regard to two issues of
law which arise in the present case as well.
The first issue is with regard to determination of age of a person
accused of an offence when it appears that a person charged with offence
is a juvenile or claims as such. The second issue is the consequences of a
finding that on the date of occurrence if a person is found to be juvenile
then what is to be done?
The first thing we would like to mention is that if the provisions
of the Juvenile Justice Act of 2000 and the Central Rules, that is, the
Juvenile Justice (Care and Protection of Children) Rules, 2007 and the
Bihar Rules, that is, Bihar Juvenile Justice (Care and Protection of
Children) Rules, 2003 are read then it would be found that Legislature has
left no discretion in respect of both the issues to the Court or the Juvenile
Justice Board. The procedure and the consequences are laid down without
exception leaving no scope for discretion. Here, I may remind of what the
Patna High Court CR. APP (DB) No.771 of 2008
7 dt.19-08-2011
Apex Court said in the case of Shri Mandir Sita Ramji Versus Governor
of Delhi & Ors. since reported in AIR 1974 Supreme Court 1868,
relevant part of which is quoted hereunder:-
"When a procedure is prescribed by the Legislature, it is not
open for the Court to substitute a different one according to its
notion of justice. When the Legislature has spoken, the Judges
cannot afford to be wiser."
Now, coming to the first issue as to what is to be done by a
Court when it finds that the accused appears to be a juvenile or claims to
be a juvenile in terms of the Juvenile Justice Act of 2000 and the Rules
framed thereunder. At this stage first we must notice that the first
comprehensive legislation dealing with juvenile and juvenile delinquency
as applicable in India was the Juvenile Justice (Care and Protection of
Children) Act, 1986, Section-2(h) thereof defined a juvenile to mean a boy
who had not attained the age of 16 years. This Act of Parliament was later
repealed and replaced by the Juvenile Justice (Care and Protection of
Children) Act, 2000 with effect from 01.04.2001. Under the Juvenile
Justice Act of 2000 this definition of juvenile has been changed. By virtue
of Section-2(k) of the Juvenile Justice Act of 2000 juvenile is defined as a
person who has not completed 18 years of age, thus, in respect of boys the
age of juvenility has since been increased from 16 years under the Act of
1986 to 18 years under the Act of 2000. As noticed above, the Juvenile
Justice Act of 2000 was enforced with effect from 01.04.2001 and
thereafter on 22.06.2001 the Central Government framed model rules
known as the Juvenile Justice (Care and Protection of Children) Rules,
2001. It may be noted here that these Model Rules as framed by the
Patna High Court CR. APP (DB) No.771 of 2008
8 dt.19-08-2011
Central Government was one of the subject matter of consideration by the
Constitution Bench in the case of Pratap Singh Versus The State of
Jharkhand since reported in (2005) 3 Supreme Court Cases 551 wherein
the Apex Court held that the Central Government did not have any
authority to make those rules and they could not resort to those rule
making power under the Clause dealing with power to remove difficulty.
The Apex Court in that case was dealing with questions of juvenility and
implications of the Juvenile Justice Act of 2000 and repeal of the Act of
1986. It must be noticed here that soon after the said Constitution Bench
judgment in 2005, the Juvenile Justice Act of 2000 was substantially
amended. Apart from inserting a new provisions, that is, Section-7A and
substantially amending Section 20 and Section 68 of the said Act, was also
amended by adding a proviso to sub-section(1) thereof, authorizing the
Central Government to frame model rules. Thus, the authority of the
Central Government, which was found missing, in the judgment of the
Constitution Bench in the case of Pratap Singh (supra), was cured. It is
under this amended provision, which authorized the Central Government
to frame model rules, the Central Government has now framed the
Juvenile Justice (Care and Protection of Children) Rules, 2007 enforced
with effect from 26.10.2007. Section-68 of the Juvenile Justice Act of
2000 had originally authorized only the State Government to frame Rules
to carry out the purposes of the Act, which has now been extended to the
Central Government as well, as noticed above. In so far as Bihar is
concerned, the State Government has framed the Bihar Juvenile Justice
(Care and Protection of Children) Rules, 2003.
Patna High Court CR. APP (DB) No.771 of 2008
9 dt.19-08-2011
So far as the first issue is concerned, we need not discuss the
same in detail because the provisions of the Juvenile Justice Act of 2000,
the model rules as framed by the Central Government in 2007 and the
Bihar Rules of 2003 in relation to this issue had already been discussed by
this Court in the case of Sachin Kumar Gupta @ Sachin Kumar Versus
The State of Bihar & Anr. since reported in 2008(2) PLJR 800, which
we approve. What has been held in substance is that considering the
provisions of the aforesaid legislations and the delegated legislation and in
particular Rule-12 of the Central Rules 2007 and Rule-22 of the Bihar
Rules-2003 that the age would be assessed first on basis of the birth
certificate given by the Corporation or the Municipality, the matriculation
or equivalent certificate or the birth certificate from the school first
attended and only in absence thereof the age would be assessed on the
medical opinion of a duly constituted Medical Board subject to margin of
1 year and the documents above mentioned would be conclusive proof of
the age. Thus seen, resort to Medical Board in each and every case is not
the mandate of law, rather it comes into play only when the documents as
mentioned in the Rules aforesaid are not available. It may further be noted
that once a finding of juvenility is given in terms of Sections-7A, 14 and
49 of the Juvenile Justice Act of 2000, by virtue of Section-49 and in
particular sub-section(2) thereof, no subsequent proof is at all admissible
to deny the benefit of juvenility and the declaration once made is final.
Thus seen, there is no discretion on the Court but in the said
circumstances as mentioned above to hold an enquiry and give a finding in
the manner prescribed.
Patna High Court CR. APP (DB) No.771 of 2008
10 dt.19-08-2011
I may note that the Apex Court in the case of Ram Suresh
Singh Versus Prabhat Singh @ Chhotu Singh & Anr. since reported in
(2009) 6 Supreme Court Cases 681, a case going from this Court, in
principle also held the same view, though it noticed the Central Rules of
2001 as the judgment of this Court was delivered prior to the Central
Rules of 2007. Even then it held that resort to Medical Board or other
evidence is permissible only when the documents as mentioned in the
rules aforesaid are not available and the documents if produced and
proved would be conclusive proof of the age leaving no discretion on the
Court.
Thus, to conclude this first issue we must point out that if the
claim about juvenility is made before any Court or any Court feels that the
accused before it was a juvenile when the offence was committed then
first, that Court, in terms of Sections-7 & 7A of the Juvenile Justice Act of
2000 would be obliged to refer the matter immediately to the Juvenile
Justice Board. The Juvenile Justice Board then would conduct an enquiry,
as contemplated under Section-14 of the said Act. While conducting the
said enquiry, as noticed above in the case of Sachin Kumar Gupta
(supra), the Board would consider the evidence in accordance with Rule-
12 of the Central Rules, 2007 and Rule-22 of the Bihar Rules, 2003 and
pass appropriate orders. Once a person is declared to be juvenile, then in
terms of Section-49 of the Act that order would be final and in terms of
sub-section (2) thereof subsequently no proof can be taken as against it. If
the order of the Juvenile Justice Board is against the person claiming to be
juvenile or in favour of the juvenile then Section-52 provides for an appeal
Patna High Court CR. APP (DB) No.771 of 2008
11 dt.19-08-2011
to the Court of Sessions and Section-53 provides for a revision to the High
Court.
It is in view of these provisions and the scheme, as noticed
above, that we have indicated that there is no discretion left to any Court
or the Board in the matter and they have to proceed according to the
schemes once it finds someone to be a juvenile or a claim of juvenility is
made. This issue is answered accordingly.
Now, we come to the second and more important issue as to the
applicability of the Juvenile Justice Act of 2000 to proceedings pending
when the said Act came into force and the consequence of a person being
found to be a juvenile in terms of the said Act on the date of occurrence.
In this regard, we may point out that if the date of occurrence is
after the enforcement of the Juvenile Justice Act of 2000, that is, after
01.04.2001 the provisions are clear. In this situation, if it is found that the
person is a juvenile and, hence, a juvenile in conflict with law, then the
first thing is that by virtue of Section-12 of the Act his bail plea has to be
disposed of. In other words, as provided under the said Act, he may or
may not be released on bail, but in either of the case he cannot be
remanded to the judicial custody. His case has to be placed before the
Juvenile Justice Board which can, instead of releasing him make an order
sending him to observation home or a place of safety by virtue of Section-
12(3) of the Act. Then orders that may be passed in terms of Section-17
may be passed keeping in mind orders by virtue of Section-16 of the Act
which may not be passed. However, by virtue of Section-18 of the Act it
is prohibited to try a juvenile together with a person who is not juvenile
Patna High Court CR. APP (DB) No.771 of 2008
12 dt.19-08-2011
but that trial would also be by and before the Juvenile Justice Board and
not in any Court of the juvenile in conflict with law.
Now, we come to the specific problem of applicability of the
Juvenile Justice Act of 2000 to pending proceedings in cases, that is,
offences committed prior to 01.04.2001 in respect of which either enquiry
or trial is pending before a competent Criminal Court or appellate or
revisional proceedings are pending from order of conviction. It would be
our duty to point out that there has been substantial change in the statute
law in regard to the provisions of the Juvenile Justice Act of 2000 in this
regard since its enactment and enforcement on 01.04.2001. It would be
seen that as originally enacted Section-2(l) of the Act defines juvenile in
conflict with law to mean a juvenile who is alleged to have committed an
offence. Then, we had Section-7 and Section-20 to which the proviso and
the explanation, as we now find, were not there. It is in this perspective
when such a question arose before the Constitution Bench in the case of
Pratap Singh (supra) that the Constitution Bench of the Apex Court held
thus in paragraphs-36 & 37, which is quoted hereunder:-
"36. We, therefore, hold that the provisions of the 2000 Act
would be applicable to those cases initiated and pending
trial/inquiry for the offences committed under the 1986 Act
provided that the persons had not completed 18 years of age
as on 1-4-2001.
37. The net result is:
(a) The reckoning date for the determination of the age of the
juvenile is the date of the offence and not the date when he
is produced before the authority or in the court.
Patna High Court CR. APP (DB) No.771 of 2008
13 dt.19-08-2011
(b) The 2000 Act would be applicable in a pending proceeding
in any court/authority initiated under the 1986 Act and is
pending when the 2000 Act came into force and the person
had not completed 18 years of age as on 1-4-2001."
The effect of this judgment was that if the person who was
charged with committing an offence prior to 01.04.2001 and was found to
be a juvenile, that is, under 18 years of age and he had not attained
majority as on the date of enforcement of the Juvenile Justice Act of 2000,
Section-20 would apply and he would get the benefit of juvenility but
notwithstanding the fact that he was a juvenile within the meaning of
Juvenile Justice Act of 2000 on the date when the offence was committed
prior to that Act but had attained majority by the time the Act came into
being and the proceedings were pending he would not get the benefit of
the said Act and would not be treated as a juvenile under the said Act.
It appears to us that this is the position that was taken by the
learned Additional District Judge in the present case because it found that
when the offence was committed, though petitioner was not a juvenile, in
terms of the Juvenile Justice Act of 1986, he was a juvenile in terms of the
Juvenile Justice Act of 2000, but as he had attained majority prior to
01.04.2001, in fact, being almost 21 years of age on that date, he could not
be given the benefit of the Juvenile Justice Act of 2000. This order
unfortunately, as noted above, was passed on 19.12.2007 by when the Act
had been substantially amended altering the very basis of the judgment
rendered by the Constitution Bench of the Apex Court in the case of
Pratap Singh (supra) by the Juvenile Justice (Care and Protection of
Children) Amendment Act, 2006 with effect from 22.08.2006.
Patna High Court CR. APP (DB) No.771 of 2008
14 dt.19-08-2011
What was done by the Amendment Act of 2006 was that
Section-2(l) of the Act was amended and now it was provided that the
juvenile in conflict with law would mean a juvenile alleged to have
committed an offence and had not completed 18 years of age on the date
of commission of such offence. New Section 7A was introduced which
clearly provided that the claim of juvenility on the date of commission of
offence could be raised before any Court, at any stage, even after the
disposal of the case. Further Section-20 which is a special provision in
respect of pending cases was substantially amended adding a proviso and
an explanation thereto. The explanation added to Section-20 made it clear
that it applied to all pending cases including trial, revision or appeal or
other criminal proceedings in respect of juvenile in conflict with law in
any Court and it further provided that this Section would apply as if the
said provisions were in force for all purposes and at all material times
when the alleged offence was committed. Thus, there was a clear
departure from the law as laid down by the Constitution Bench of the
Apex Court in the case of Pratap Singh (supra) which was rendered on
2nd February, 2005.
We do not have to go far to see the effect as it was exhaustively
considered by the Apex Court in the case of Hari Ram Versus State of
Rajasthan and another since reported in (2009) 13 Supreme Court Cases
211. In paragraph-37 of the reports, their Lordships have held thus:-
"37. The said decision in Pratap Singh Case6 led to the
substitution of Section 2(l) and the introduction of Section 7-
A of the Act and the subsequent introduction of Rule 12 in
the Juvenile Justice Rules, 2007, and the amendment of
Patna High Court CR. APP (DB) No.771 of 2008
15 dt.19-08-2011
Section 20 of the Act. Read with Sections 2(k), 2(l), 7-A
and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as
amended in 2006, is probably the section most relevant in
setting at rest the question raised in this appeal, as it deals
with cases which were pending on 1-4-2001, when the
Juvenile Justice Act, 2000, came into force."
[6 Pratap Singh Vs. State of Jharkhand (2005) 3 SCC 551]
Then, I may refer to what is noticed by the Court in Paragraphs-
38,39&40 of the reports, the relevant parts are quoted hereunder:-
38. The same is, accordingly, reproduced hereinbelow:
"20. Special provision in respect of pending cases.-
Notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any court in
any area on the date on which this Act comes into force in
that area, shall be continued in that court as if this Act had
not been passed and if the court finds that the juvenile has
committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass orders in
respect of that juvenile in accordance with the provisions of
this Act as if it had been satisfied on inquiry under this Act
that a juvenile has committed the offence:
Provided that the Board may, for any adequate and
special reason to be mentioned in the order, review the case and
pass appropriate order in the interest of such juvenile.
Patna High Court CR. APP (DB) No.771 of 2008
16 dt.19-08-2011
Explanation.-In all pending cases including trial, revision,
appeal or any other criminal proceedings in respect of a juvenile
in conflict with law, in any court, the determination of juvenility
of such a juvenile shall be in terms of clause (l) of Section 2,
even if the juvenile ceases to be so on or before the date of
commencement of this Act and the provisions of this Act shall
apply as if the said provisions had been in force, for all purposes
and at all material times when the alleged offence was
committed."
The proviso and the Explanation to Section 20 were added by
Amendment Act 33 of 2006, to set at rest any doubts that may
have arisen with regard to the applicability of the Juvenile
Justice Act, 2000, to cases pending on 1-4.2001, where a
juvenile, who was below 18 years at the time of commission of
the offence, was involved.
39. The Explanation which was added in 2006, makes it very
clear that in all pending cases, which would include not
only trials but even subsequent proceedings by way of
revision or appeal, the determination of juvenility of a
juvenile would be in terms of clause (l) of Section 2, even if
the juvenile ceased to be a juvenile on or before 1-4-2001,
when the Juvenile Justice Act, 2000, came into force, and
the provisions of the Act would apply as if the said
provision had been in force for all purposes and for all
material times when the alleged offence was committed. In
fact, Section 20 enables the court to consider and determine
Patna High Court CR. APP (DB) No.771 of 2008
17 dt.19-08-2011
the juvenility of a person even after conviction by the
regular court and also empowers the court, while
maintaining the conviction, to set aside the sentence
imposed and forward the case to the Juvenile Justice Board
concerned for passing sentence in accordance with the
provisions of the Juvenile Justice Act, 2000.
40. At this point it may be noted that the decision of the
Constitution Bench in Pratap Singh case 6 was rendered at a
point of time when the amendments to Sections 2(l) and 20
and the introduction of Section 7-A had not yet been
effected, nor was Rule 12 of the 2007 Rules available.
It may be noted that even though drastic amendments were
made by the Amendment Act of 2006 new rules were framed being the
Central Rules, 2007 still there were several decisions rendered by the
Apex Court which would prima facie show the continuance of applying
the law as laid down by the Constitution Bench in the case of Pratap
Singh (supra). These have been discussed in paragraphs-44 to 49 of the
said judgment in Hari Ram's case (supra), which are quoted hereunder:-
44. Of the decision rendered after the amendments effected in
2006 to the Juvenile Justice Act, 2000, the first decision of
11
note is that of Jameel case rendered on 16-1-2007
wherein the amendments to the Act effected by Amendment
Act 33 of 2006, which came into effect on 22-8-2006, were
not even noticed. [11 (2007) 11 SCC 420]
45. The next decision rendered on 27-5-2008 is in Vimal
12
Chadha case wherein, although the amendment of the Act
Patna High Court CR. APP (DB) No.771 of 2008
18 dt.19-08-2011
and the introduction of the Juvenile Justice Rules, 2007, were
brought to the notice of the Court, the same were not
considered and the decision was rendered in the light of the
6
decision rendered in Pratap Singh case and other cases
decided prior to 1-4-2001. [12 (2008) 15 SCC 216]
46. The next decision rendered on the same point on 11-9-2008
14
was the decision in Ranjit Singh case case wherein also the
amendments to Section 2(l) and 20 and the introduction of
Section 7-A in the Juvenile Justice Act, 2000, and the
introduction of the 2007 Rules had not been considered and
the decision passed sub silentio. [14 (2008) 9 SCC 453]
13
47. Similar was the situation in Babloo Pasi case decided on
3-10-2008which basically dealt with Section 49 of the Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is pari materia with Rule 12 of the 2007 Rules. While deciding the said case, the Hon'ble Judges did not also have occasion to consider the amendments effected to the Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into force on 22-8-2006.
[13 (2008) 13 SCC 133]
48. None of the aforesaid decisions are of much assistance in deciding the question with regard to the applicability of the definition of "juvenile" in Sections 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby the provisions of the said Act were extended to cover juveniles Patna High Court CR. APP (DB) No.771 of 2008 19 dt.19-08-2011 who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1-4- 2001. (emphasis supplied)
49. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of "juvenile" in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. (emphasis supplied) The net result is noted in paragraph-50 thereof, which is quoted hereunder:-
50. The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so "on or before the date of commencement of this Act" and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. (emphasis supplied) Patna High Court CR. APP (DB) No.771 of 2008 20 dt.19-08-2011 Thus, what we find from the judgment referred in the case of Hari Ram (supra) is that after the amendment to the Juvenile Justice Act of 2000 by the Amendment Act of 2006 the situation as emanating in the case of Pratap Singh (supra) underwent a complete change. The effect is that once a person is found to be a juvenile in conflict with law as defined by Section-12(l) of the Juvenile Justice Act of 2000, then irrespective of his age at the time when this matter is considered in any pending proceeding when the Act came into force, he would continue to be treated as juvenile in conflict with law and be entitled to the benefits in relation thereto.
We regret that even though by a specific petition before the learned Additional District Judge these amendments were brought to his notice he chose to completely ignore them and deny the benefit to the appellant which the law had given to him.
We may notice that now the Apex Court has consistently taken note of the amendment and the judgment as rendered in the case of Hari Ram (supra) and extended the benefit to persons who are found to be juvenile in conflict with law for an offence committed prior to the enforcement of the Juvenile Justice Act of 2000 irrespective of their age when such determination is made after coming into force of the Juvenile Justice Act of 2000. We may only refer to some of the cases being Dharambir Versus State (NCT of Delhi) & Anr. since reported in (2010) 5 SCC 344, Daya Nand Versus State of Haryana since reported in (2011) 2 SCC 224 and Lakhan Lal Versus State of Bihar with analogous cases since reported in (2011)2 SCC 251.
Patna High Court CR. APP (DB) No.771 of 2008 21 dt.19-08-2011 Thus, the answer to the second issue is that if in any proceeding pending when the Juvenile Justice Act of 2000 came to be enforced if it is found that on the day when the offence was said to have been committed by a person who was a juvenile in conflict with law as defined by Section- 2(l) of the Act, he would be so treated irrespective of his present age or age as on 01.04.2001 and he cannot be denied the benefits accruing to a juvenile in conflict with law. It is in this perspective that we have earlier said that there is no discretion left to any Court in the matter in pending proceedings. He the juvenile in conflict with law cannot be sentenced to imprisonment at all and cannot be allowed to continue to be in jail.
If we apply the law, as noticed above to the present case, it would be found in its inevitable conclusion that the order of the learned Additional District Judge dated 19.12.2007 was clearly erroneous and the appellant was entitled to the benefits as a juvenile in conflict with law, in view of the 2006 amendments to the Act and, was wrongly deprived thereof, he was convicted but wrongly sentenced.
Now, coming to the merits of the appeal. It may be noted that it is on basis of evidence proving the circumstances that the appellant has been convicted for the offence under Sections-302 & 201 of the Indian Penal Code. We have perused the evidence. The circumstances that have been proved clearly and consistently point to the inevitable conclusion of the appellant's guilt and inconsistent with his plea of innocence. We are in agreement with the learned trial Judge of the circumstances as noted by him, which are noted hereunder and, which in our opinion, conclusively proves the guilt of the appellant.
Patna High Court CR. APP (DB) No.771 of 2008 22 dt.19-08-2011
(i) At 3 pm on the fateful day i.e. on 09.08.1996 the appellant visited the house of the informant, Sanjeet Kumar (P.W.8) and took his younger brother the deceased Manjeet with him.
(ii) Several prosecution witnesses, namely, P.Ws.-2,3 & 5 have established that at 7 pm of the said day the deceased Manjeet Kumar was last seen with the appellant, Ranjeet Kumar Jha.
(iii) Sunil Kumar Raut (P.W.6) establishes that on the same day at about 8 pm appellant came to his house completely nervous, borrowed clothes from him discarding his smelly clothes. The appellant then tried to burn his discarded clothings.
(iv) The half burnt discarded clothing of the appellant were recovered by the police which were concealed under heap of garbage.
(v) In extra judicial confession the appellant confessed to the facts.
(vi) Bottle of ether and syringe which were recovered by the police from the site of the dead body as found was indicated and accepted by the accused in his extra judicial confession.
(vii) The dead body of Manjeet was recovered from a drain wrapped in cloth.
(viii) The defence of the appellant was the plea of alibi that on the fateful day i.e. on 09.08.1996 at the relevant time he Patna High Court CR. APP (DB) No.771 of 2008 23 dt.19-08-2011 was at Kolkata stood falsified by the written information given by the appellant's father (Exts.1/2 & 5/1), which clearly show that the appellant was at Saharsa itself at that time alibi could neither be established rather it was falsified.
In view of the aforesaid, we are unable to interfere with the conviction of the appellant, but at the same time in view of the prohibitions as contained in Section 20 of the Juvenile Justice Act of 2000 as amended by the Amendment Act of 2006, we are unable to sustain the sentence of life imprisonment on his juvenility, having been established by Exts.C & D. His case should have been referred to the Juvenile Justice Board for sentencing and he could not under any circumstances be remanded to judicial custody for serving out his sentence. We would have in normal course remanded the matter to the Juvenile Justice Board for sentencing but as we have already noted above that the appellant has remained in judicial custody for more than 3 years serving out his life sentence, we have no option but to allow the appeal, while upholding the conviction, but setting aside the sentence, with a direction that the appellant be released from custody forthwith if not required to be detained in any other case. In terms of Section-19 of the Juvenile Justice Act of 2000 he shall not suffer disqualification, if any, attached to the conviction.
Let a copy of this order be sent to the Bihar Judicial Academy for being brought to the notice of Judicial Officers so that in future injustice to juvenile in conflict with law may be avoided in this State and the legislative mandate is carried out in true letters and spirit.
This appeal is, accordingly, allowed.
Patna High Court CR. APP (DB) No.771 of 2008 24 dt.19-08-2011 Before closing we would like to appreciate the fair and valuable assistance rendered in the case by Shri G.P. Jaiswal, learned Senior Counsel, amicus curiae, and the learned Additional Public Prosecutor, Shri Ashwani Kumar Sinha. Shri G.P. Jaiswal would be entitled to one hearing fee as a Senior Advocate from the Patna High Court Legal Services Committee. We order accordingly.
(Navaniti Prasad Singh, J.) Ashwani Kumar Singh, J. I agree.
(Ashwani Kumar Singh, J.) The Patna High Court The 19th August, 2011 Trivedi/AFR