Dharmbir vs State(Nct Of Delhi) Anr

Dharambir ... Appellant

VERSUS

State (NCT of Delhi) & Anr. ... Respondents

JUDGMENT

Leave granted.

2. This appeal is directed against the final judgment and order dated 6th

November, 2009, delivered by the High Court of Delhi at New Delhi, in

Criminal Appeal No.140 of 1994. By the impugned judgment, while

acquitting one of the co-convicts, the High Court has upheld the conviction

of the appellant for offences punishable under Sections 302 and 307 read

with Section 34 of the Indian Penal Code, 1860 (for short "the IPC"), for

committing murder of one of their close relative and for attempting to

murder his brother. The appellant has been sentenced to imprisonment for

life under Sections 302/34 IPC and to pay a fine of Rs.500/-. For offence

under Section 307/34 IPC, he has been sentenced to undergo rigorous 2 imprisonment for a term of seven years and to pay a fine of Rs.500/-, with

default stipulation.

3. When the matter came up for motion hearing, Mr. K. Parasaran,

learned senior counsel, appearing for the appellant, submitted at the very

outset that since at the time of commission of the said offences, the

appellant had not completed eighteen years of age, he was a juvenile within

the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of

Children) Act, 2000 (for short "the Act of 2000"), an inquiry in terms of

Section 7A of the Act of 2000 has to be made so as to determine the age of

the appellant. In support of the submission, learned counsel relied on the

appellant's school leaving certificate dated 2nd December, 2009.

4. In view of the said claim, while issuing notice to the State, a

Registrar of this Court was directed to make an inquiry and determine the

age of the appellant on the date of commission of the offences. Pursuant to

the said order, the Registrar (Judicial) of this Court has conducted a

detailed inquiry by recording the statements of the Principal and other

office bearers of three schools where the appellant had studied and has

reported that as on the date when the offences were committed, i.e., 25th

August, 1991, the appellant was of the age of 16 years, 9 months and 8

days. The matter has now been placed before us along with the report. 3

5. We have heard learned senior counsel appearing on behalf of the

appellant and Mr. H.P. Raval, learned Additional Solicitor General on

behalf of the State.

6. The question for determination is whether or not the appellant, who

was admittedly not a juvenile within the meaning of the Juvenile Justice

Act, 1986 (for short "the 1986 Act") when the offences were committed but

had not completed 18 years of age on that date, will be governed by the Act

of 2000 and be declared as a juvenile in relation to the offences alleged to

have been committed by him?

7. Before adverting to the question, we may note that the issue with

regard to the date, relevant for determining the applicability of either of the

two Acts, insofar as the age of the accused, who claims to be a

juvenile/child, is concerned, is no longer res integra. On account of

divergence of views on the point in Umesh Chandra Vs. State of

Rajasthan1 and Arnit Das Vs. State of Bihar2, the matter was referred to

the Constitution Bench in Pratap Singh Vs. State of Jharkhand & Anr.3

Affirming the view taken by a Bench of three Judges in Umesh Chandra's

case (supra), the Constitution Bench held that the relevant date for

determining the age of the accused, who claims to be a juvenile/child,

would be the date on which the offence has been committed and not the

date when he is produced before the authority or in the court. 1 (1982) 2 SCC 202 2 (2000) 5 SCC 488 3 (2005) 3 SCC 551 4

8. In the same judgment, the Bench also dealt with the question as to

whether the Act of 2000 will be applicable in a case where proceedings

were initiated under the 1986 Act and were pending when the Act of 2000

was enacted with effect from 1st April, 2001. Taking into consideration the

provisions of Sections 3 and 20 along with the definition of "juvenile" in

Section 2(k) of the Act of 2000, as contrasted with the definition of a male

juvenile in Section 2(h) of the 1986 Act, by majority, it was held that the

Act of 2000 would be applicable in a pending proceeding in any

Court/Authority initiated under the 1986 Act and is pending when the Act

of 2000 came into force and the person concerned had not completed 18

years of age as on 1st April, 2001. In other words, it was held that a male

offender, against whom proceedings had been initiated under the 1986 Act

in any Court/Authority and had not completed the age of 18 years as on 1st

April, 2001, would be governed by the provisions of the Act of 2000.

9. The decision in Pratap Singh's case (supra) led to substitution of

Section 2(l); the insertion of Section 7A and Proviso and Explanation to

Section 20 of the Act of 2000 by Act No.33 of 2006 as also introduction of

the Juvenile Justice (Care and Protection of Children) Rules, 2007

containing Rule12, which lays down the procedure to be followed in

determination of age of a child or a juvenile.

5

10. Section 20 of the Act of 2000, the pivotal provision, as amended,

reads as follows:

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

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

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."

11. It is plain from the language of the Explanation to Section 20 that in

all pending cases, which would include not only trials but even subsequent

proceedings by way of revision or appeal, etc., the determination of

juvenility of a juvenile has to be in terms of Clause (l) of Section 2, even if

the juvenile ceases to be a juvenile on or before 1st April, 2001, when the

Act of 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 6 times when the alleged offence was committed. Clause (l) of Section 2 of

the Act of 2000 provides that "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. Section 20 also enables the Court to consider and determine 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

Act of 2000.

12. At this juncture, it will be profitable to take note of Section 7A,

inserted in the Act of 2000 with effect from 22nd August, 2006. It reads as

follows:

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

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act 7 (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."

Proviso to sub-section (1) of Section 7A contemplates that a claim of

juvenility can be raised before any court and has to be recognised at any

stage even after disposal of the case and such claim is required to be

determined in terms of the provisions contained in the Act of 2000 and the

rules framed thereunder, even if the juvenile has ceased to be so on or

before the date of the commencement of the Act of 2000. The effect of the

proviso is that a juvenile who had not completed eighteen years of age on

the date of commission of the offence would also be entitled to the benefit

of the Act of 2000 as if the provisions of Section 2(k) of the said Act,

which defines "juvenile" or "child" to mean a person who has not

completed eighteenth year of age, had always been in existence even

during the operation of the 1986 Act. It is, thus, manifest from a conjoint

reading of Sections 2(k), 2(l),7A, 20 and 49 of the Act of 2000, read with

Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children)

Rules, 2007 that all persons who were below the age of eighteen years on

the date of commission of the offence even prior to 1st April, 2001 would

be treated as juveniles even if the claim of juvenility is raised after they

have attained the age of eighteen years on or before the date of the 8 commencement of the Act of 2000 and were undergoing sentences upon

being convicted.

13. In the view we have taken, we are fortified by the dictum of this

Court in a recent decision in Hari Ram Vs. State of Rajasthan &

Another4.

14. In the present case, as per the report of the Registrar submitted in

terms of Section 7A of the Act of 2000, the age of appellant as on the date

of commission of offences, i.e., 25th August, 1991, was 16 years, 9 months

and 8 days. The correctness of the estimate of age by the Registrar is not

questioned by the State. The parties have, therefore, accepted the

correctness of the age determined by the learned Registrar. In our

considered opinion, in the light of the afore-stated legal position, the

appellant has to be held to be a juvenile as on the date of the Commission

of the offences for which he has been convicted and is to be governed by

the provisions of the Act of 2000.

15. Having held so, the next question for consideration is as to what

order on sentence is to be passed against the appellant for the offences

committed by him under Sections 302 and 307 read with Section 34 IPC,

correctness whereof has not been put in issue before us. Section 15 of the

Act of 2000 provides for various orders which the Juvenile Justice Board

(for short "the Board") may pass against a juvenile when it is satisfied that

4 (2009) 13 SCC 211 9 the juvenile has committed an offence, which includes an order directing

the juvenile to be sent to a special home for a period of three years. Section

16 of the Act of 2000 stipulates that where a juvenile who has attained the

age of sixteen years has committed an offence and the Board is satisfied

that the offence committed is so serious in nature that it would not be in his

interest or in the interest of other juvenile in a special home to send him to

such special home and that none of the other measures provided under the

Act is suitable or sufficient, the Board may order the juvenile in conflict

with law to be kept in such place of safety and in such manner as it thinks

fit and shall report the case for the order of the State Government. Proviso

to sub-section (2) of Section 16 of the Act of 2000 provides that the period

of detention so ordered shall not exceed in any case the maximum period

provided under Section 15 of the said Act, i.e., for three years. In the

instant case, as per the information furnished to us, the appellant has

undergone an actual period of sentence of 2 years, 4 months and 4 days and

is now aged about thirty five years. We feel that, keeping in view the age

of the appellant, it may not be conducive to the environment in the special

home and to the interest of other juveniles housed in the special home, to

refer him to the Board for passing orders for sending the appellant to

special home or for keeping him at some other place of safety for the

remaining period of less than eight months, the maximum period for which

he can now be kept in either of the two places.

1

16. Accordingly, while sustaining the conviction of the appellant for the

afore-stated offences, we quash the sentences awarded to him and direct his

release forthwith, if not required in any other case. The appeal succeeds

partly to the extent indicated above.

........................................J. [ D.K. JAIN ]

........................................J. [ J.M. PANCHAL ] NEW DELHI, APRIL 23, 2010.