Daya Nand vs State Of Haryana

DAYA NAND ... APPELLANT

VERSUS

STATE OF HARYANA ... RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. Leave granted.

2. The appellant stands convicted under section 376 read

with section 511 of the Penal Code and sentenced to

rigorous imprisonment for five years and a fine of

Rs.2000/- with the direction that in default of payment of

fine he would undergo rigorous imprisonment for a further

period of two months.

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3. According to the prosecution case, on February 2,

1998, at about 10.00 A.M., the prosecutrix had gone out to

the fields for relieving herself. There she was accosted by

the appellant. Seeing him take off his pants, the

prosecutrix tried to run away but the appellant caught hold

of her and pulled her down to the ground. The prosecutrix

freed herself by biting on the appellant's hand and ran

towards her house. The appellant chased her and again

caught hold of her. He pulled her down and grabbed her

breasts and attempted to commit rape on her. She resisted

him and in their struggle some mustard crops grown in the

field were also damaged. On alarm raised by the

prosecutrix, her mother and uncle came to the spot and on

seeing them, the appellant ran away threatening the

prosecutrix that he would kill her in case she went to the

police.

4. In support of its case, the prosecution examined the

mother of the prosecutrix as PW.1, the prosecutrix herself

as PW.2 and two policemen connected with the investigation

and a photographer who had taken pictures of the place of

occurrence.

5. The Additional Sessions Judge, Narnaul, trying the

offence, on a consideration of the evidence adduced before

him, found and held that the charge against the appellant 3

was fully proved and by judgment and order dated February

13/15, 1999, passed in Sessions Case No.39 of 6.10.1998,

Sessions Trial No.1 of 1.2.1999 convicted and sentenced

him, as noted above. Against the judgment and order passed

by the trial court, the appellant preferred an appeal

(Criminal Appeal No.174-SB of 1999) before the High Court

of Punjab and Haryana at Chandigarh. The High Court

dismissed the appeal by judgment and order dated October

15, 2009, maintaining the conviction and sentence awarded

to the appellant.

6. So far as the question of the appellant's guilt is

concerned, that seems to be amply established by the

evidence adduced by the prosecution and there is no need to

go into any further detail in that regard. What needs to be

considered in this appeal is the appellant's plea based on

juvenility.

7. From the judgment of the High Court coming under

appeal, it appears that the plea of the appellant's

juvenility was raised at an early stage of the proceedings

and the Principal Magistrate, Juvenile Justice Court,

Narnaul, by his order dated March 20, 1998 had found that

the appellant was a juvenile. Against the order of the

Principal Magistrate, the State went in appeal and the

learned Sessions Judge, Narnaul, reversed the findings of 4

the Principal Magistrate, Juvenile Justice Court, observing

that the date of birth of the appellant as recorded in the

Deaths and Births Register maintained by the Registrar was

August 14, 1981 and reckoned on that basis, he was not a

juvenile on February 2, 1998, the date of the occurrence.

As a consequence, the appellant was tried not before a

Juvenile Court, but before the Additional Sessions Judge,

Narnaul.

8. The plea of juvenility was again raised in appeal, but

the High Court rejected it referring to the finding of the

Sessions Judge on the matter and observing as follows:-

"Learned counsel for the appellant argued that the appellant was a juvenile at the time of occurrence and should have been tried by the Principal Magistrate, Juvenile Justice Court, Narnaul. However, after going through the records of the case, I do not find any merit in this argument. In his order dated 20.3.1998, the Principal Magistrate, Juvenile Justice Court, Narnaul, had held that the appellant was a juvenile. Against the order dated 20.3.1998, the State had gone in appeal and the learned Sessions Judge Narnaul, reversed the findings of the Principal Magistrate, Juvenile Justice Court, Narnaul by observing that the date of birth of the appellant was 14.8.1981 as mentioned in the Deaths and Births Register so maintained by the Registrar. Thus, on 2.2.1998, i.e. the date of occurrence, the appellant was not a juvenile."

5 9. From the above it is evident that on the date of

occurrence the age of the appellant was 16 years 5 months

and 19 days.

10. In the Juvenile Justice Act, 1986, a `juvenile' was

defined under section 2(h) to mean a boy who has not

attained the age of 16 years or a girl who has not attained

the age of 18 years. On the basis of the finding of the

Sessions Judge that on the date of occurrence, the

appellant was over 16 years of age, he did not come within

the definition of `juvenile' under the 1986 Act.

11. The Juvenile Justice Act, 1986 was replaced by the

Juvenile Justice (Care and Protection of Children) Act,

2000 that came into force on April 1, 2001. The 2000 Act

defined `juvenile or child' in section 2(k) to mean a

person who has not completed eighteenth years of age.

Section 69 of the 2000 Act, repealed the Juvenile Justice

Act, 1986. The 2000 Act, in section 20 also contained a

provision in regard to cases that were pending when it came

into force and in which the accused at the time of

commission of offence was below 18 years of age but above

sixteen years of age (and hence, not a juvenile under the

1986 Act) and consequently who was being tried not before a

juvenile court but a regular court. Section 20 (prior to

its amendment in 2006) provided as follows: 6

"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."

12. The above quoted provision came up for consideration

before a Constitution Bench of this Court in Pratap Singh

vs. State of Jharkhand and Anr., (2005) 3 SCC 551. In

Pratap Singh, this Court held that section 20 of the 2000

Act would apply only to cases in which the accused was

below 18 years of age on April 1, 2001, the date on which

the 2000 Act came into force but it would have no

application in case the accused had crossed the age of 18

years on the date of coming into force of the 2000 Act.

13. Applying the ratio of the Constitution Bench decision,

the appellant would not be entitled to the protections and

benefits of the provisions of the 2000 Act, since he was

over 18 years of age on April 1, 2001, when the 2000 Act

came into force. But the matter did not stop at that stage. 7

After this Court's decision in Pratap Singh (and presumably

as a result of that decision) a number of amendments of a

very basic nature were introduced in the 2000 Act w.e.f.

August 22, 2006 by Act 33 of 2006. Some of the provisions

incorporated in the 2000 Act by the 2006 amendment insofar

as relevant for the present are reproduced below:

"1(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law.

2(1) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;

7(A) Procedure to be followed when claim of juvenility is raised before any court - (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

8 (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect.

20. Special provision in respect of pending cases. - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation. - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) 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.]

64. Juvenile in conflict with law undergoing sentence at commencement of this Act.

- In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement 9

of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2)of section 16 of this Act:

Provided that the State Government or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.

Explanation. - In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (1) of Section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act."

14. The effect of the amendments in the 2000 Act were

considered by this Court in Hari Ram v. State of Rajasthan

and Another reported in (2009) 13 SCC 211. In Hari Ram this

Court held that the Constitution Bench decision in Pratap

Singh's case was no longer relevant since it was rendered 1

under the unamended Act. In Hari Ram this Court held and

observed as follows:

"59. The law as now crystallised on a conjoint reading of Sections 2(k), 2(1), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.

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67. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act.

68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.

69. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of Clause (l) of 1 Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.

70. In the instant case, there is no controversy that the appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age. In view of Sections 2(k), 2(l) and 7A read with Section 20 of the said Act, the provisions thereof would apply to the appellant's case and on the date of the alleged incident it has to be held that he was a juvenile."

15. Later on, the decision in Hari Ram (supra) was

followed by this Court in Dharambir v. State (NCT of Delhi)

and Another, (2010) 5 SCC 344 and also in Mohan Mali &

Another v. State of M.P., AIR 2010 SC 1790.

16. In view of the Juvenile Justice Act as it stands after

the amendments introduced into it and following the

decision in Hari Ram and the later decisions the appellant

can not be kept in prison to undergo the sentence imposed

by the Additional Sessions Judge and affirmed by the High

Court. The sentence imposed against the appellant is set

aside and he is directed to be released from prison. He is

further directed to be produced before the Juvenile Justice

Board, Narnaul, for passing appropriate orders in

accordance with the provisions of the Juvenile Justice Act. 1

17. The appeal is, thus, disposed of with the aforesaid

observations and directions.

..................................J. (Aftab Alam)

..................................J. (R.M. Lodha)

New Delhi;

January 7,2011.