Karan @ Faitya vs The State Of Madhya Pradesh

KARAN @ FATIYA …APPELLANT

VERSUS

THE STATE OF MADHYA PRADESH …RESPONDENT

JUDGMENT

VIKRAM NATH, J.

1. The present appeals assail the correctness of the

judgment and order dated 15.11.2018 whereby a Division

Bench of the High Court of Madhya Pradesh, Bench at

Indore, affirmed the death sentence awarded by the Trial

Court and at the same time dismissed the appeal preferred

by the appellant against his conviction and sentence

awarded by the Trial Court.

Signature Not Verified Digitally signed by Narendra Prasad Date: 2023.03.03 17:57:56 IST Reason: 1

2. The present appellant was charged for offences under

sections 363, 376(2)(i) of the Indian Penal Code1, sections

5(m)/6 of the POCSO Act and sections 302 and 201 IPC.

The Trial Court vide judgment dated 17.05.2018 convicted

the appellant for all the offences and awarded the following

sentences as against each of the offences:

Offence under Sentence Fine section 363 IPC 5 years RI Rs.1,000/-

376(2)(i) IPC Life imprisonment Rs.5,000/-

5(m)/6 of POCSO Life imprisonment Rs.5,000/- Act 302 IPC Death sentence Rs.5,000/-

201 IPC 5 years RI Rs.5,000/-

3. The appeal preferred by the appellant was dismissed

by the High Court and the death reference forwarded by

the Trial Court was affirmed, as already noted above.

1 In short, “IPC”

2

4. During the pendency of these appeals, the appellant

moved an application being I.A.No.43271 of 2019 claiming

juvenility and consequently the benefits available under

the provisions of the Juvenile Justice (Care and

Protection) Act, 20152. This application was apparently

filed under Section 9(2) of the 2015 Act. This Court, vide

order dated 28.09.2022 required the Trial Court to submit

its report after due inquiry as to whether the appellant was

a juvenile on the date when the offence in question was

committed. The order dated 28.09.2022 is reproduced

below:

“Pursuant to directions issued on the last occasion, certain Reports/Documents have been placed on record.

Without commenting on merits or demerits of the rival submissions, we direct as under:

a. The copies of the record be sent to the concerned Trial Court as early as possible in physical form as well as in digitized form.

b. The accused shall be produced before the concerned Trial Court within a week’s time.

2 The 2015 Act

3 c. The Trial Court shall endeavour to consider whether the appellant was juvenile as on the date when the offence in question was committed.

d. For arriving at this conclusion, the Trial Court shall be entitled to call for and consider all the relevant documents as well as have the facility of medical check-up of the appellant in a manner known to law. e. The Report in that behalf shall be submitted in the Registry of this Court within four weeks. List this matter for further consideration along with the Report in the week commencing 31st October 2022.”

5. Pursuant to the said order, a report has been received

from the Court of First Additional Sessions Judge,

Manawar, District Dhar, Madhya Pradesh dated

27.10.2022 running into 20 pages along with all the

material evidence both documentary and oral adduced

before it on the basis of which the report has been

submitted. As per the said report, the appellant’s date of

birth was found to be conclusively proved as 25.07.2002.

The date of the incident being 15.12.2017, the appellant

was 15 years 04 months and 20 days of age on the date of

4 the incident. The operative part of the report is

reproduced below:

“It is found conclusively proved that date of birth of the applicant/accused Karan is 25.07.2002. It is also proved taking into account 25.07.2002 as his date of birth, the applicant was 15 years 04 months 20 days of age as on 15.12.2017, and being below 16 years of age, he was Child as per section 2(12) of J.J. Act, 2015. Accordingly, the inquiry proceedings are concluded.”

6. At the outset learned senior counsel for the appellant

has clarified that for the present he is only pressing the

plea of juvenility and if he fails on that count would

address on the issue of conviction and sentence. Further

based on the said report, learned senior counsel for the

appellant submitted firstly that the sentence awarded

cannot be given effect to under Section 9(2) of the 2015

Act. Secondly, it is submitted that from the date of the

arrest in December, 2017, the appellant has already

undergone incarceration of more than 5 years whereas

under section 18 of the 2015 Act, a juvenile below 16

5 years, even if convicted for a heinous offence, the

maximum sentence that can be awarded is 3 years stay in

a special home. In view of the above, according to learned

senior counsel the appellant is liable to be released

forthwith.

7. Learned counsel for the State of Madhya Pradesh has

strenuously urged that the appellant be subjected to an

ossification test to determine the correct age, as according

to her, the documents filed during the inquiry before the

Trial Court are not covered under Section 94 of the 2015

Act, and therefore, the only option left was that an

ossification test be conducted by a medical board. No

other submission has been advanced on behalf of the

State.

8. Before considering the submissions advanced by

learned counsel for the parties, it would be necessary to

first consider the inquiry report submitted by the Trial

Court dated 27.10.2022. If the said report is accepted and

6 approved, then the appellant would be declared to be a

child which may then entail necessary consequences as

per the 2015 Act. It would be relevant to note here that

no objection has been filed by the respondent-State to the

report submitted by the Trial Court. The only submission

advanced on behalf of the respondent-State is for getting

the ossification test conducted.

9. We have perused the report and also the material

evidence led before the Trial Court on the basis of which

the conclusion has been drawn by the Trial Court. The

report is based upon documentary evidence as also oral

evidence of the present head-mistress (IW-01), the retired

headmaster (IW-08), five teachers of the primary

institution (IW-02, IW-04, IW-07, IW-09 and IW-10) and

also the guardian of the appellant (IW-06). It would also

be pertinent to notice that the institution is not a private

institution but is a government primary school and this

Court does not find any reason to dis-believe or even doubt

the testimony of government servants both working and 7 retired. In addition to the mark sheets by the institution,

there is also the date of birth certificate issued by the

institution (I-3). Further, the original Scholar register and

other documents were also produced before the Trial

Court in the inquiry. This Court, therefore, has no reason

to doubt the correctness of the conclusion arrived at by

the Trial Court regarding the date of birth of the appellant.

We, therefore, accept the report of the Trial Court and hold

that the appellant was aged 15 years, 4 months and 20

days on the date of the incident.

10. In order to test the submission of learned counsel for

the respondent-State, Section 94 of the 2015 Act which is

relevant is reproduced hereunder:

“94 Presumption and determination of age:

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section

8 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining –

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

9

11. On a careful perusal of the above noted provision and

the facts of the present case, the above argument of the

learned counsel for the State is liable to be rejected for the

following reasons:

a) firstly, that during the inquiry before the Trial Court,

the State did not take any objection whatsoever with

regard to the documents filed on behalf of the

appellant and the evidence led on behalf of the

appellant so much so that the State did not even cross-

examine the witnesses who were examined in the

inquiry. Permitting the State to raise such an

objection now once the conclusive finding has been

recorded by the Trial Court after an elaborate inquiry

would be unjust and not warranted. The State had full

opportunity to raise such a plea before the Trial Court

in the inquiry and then it was for the Trial Court to

take a call as to whether any ossification test was

necessary or not;

10

b) Secondly, ossification test will only give a broad

assessment of the age. It cannot give an exact age.

There is also an element of margin of plus or minus 1

to 2 years. Even if we permit the said test, it does not

lead us anywhere. It will have no bearing on the

assessment made by the Trial Court after the inquiry;

c) Thirdly, the first preference for determination of

age is the birth certificate issued by the school or a

matriculation certificate. Although it has been

submitted that no birth certificate of the school was

submitted, learned counsel for the appellant has

pointed out from the documents attached to the report

that in addition to the mark sheets and the school

leaving certificate, the birth certificate was also filed

which is Annexure I-3 to the report. It is in the

absence of the first category of documents being not

available that the birth certificate from the municipal

corporation is to be considered; and

11

d) Lastly, if under the first and second columns,

documents are not available, then reference to medical

board and holding of an ossification test comes into

play.

12. In the present case, there being birth certificate from

the school available and that too a government primary

school, we do not find any reason to doubt its correctness

and all the more when it has been duly proved in the

inquiry before the Trial Court. Thus, the objections raised

by the learned counsel for the State are liable to be

rejected.

13. The next question is as to what relief the appellant

can be granted in view of the fact that he has been held to

be a child and that too below 16 years of age under the

2015 Act. In this context Section 9 of the 2015 Act would

be relevant. The same is reproduced hereunder:

“9. Procedure to be followed by a Magistrate who has not been empowered under this Act.— (1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that

12 the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

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

(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.

13 (4) In case a person under this section is required to be kept in protective custody, while the person’s claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.”

14. A perusal of the aforesaid section firstly gives a right

to a person alleged to have committed an offence to claim

that he is a child on the date of commission of offence and

if such a claim is raised, the Court concerned shall make

an inquiry, take such evidence as may be necessary other

than the affidavit to determine the age of such person. The

proviso to sub-section (2) further makes it clear that such

a claim can be raised before any Court and the same could

be recognised at any stage even after the case has been

finally decided. The claim so made would be determined

in accordance with the provisions of the 2015 Act and the

rules made thereunder even if such person has seized to

be a child whether on or before the commencement of

2015 Act. The law provides full coverage to a person who

is established to be a child on the date of the offence to

14 avail the benefits admissible to a child under the 2015 Act

even if the case has been finally decided and also such

person has attained majority. Further, sub-section (3)

provides that if it is found in the inquiry that such person

was a child on the date of commission of such offence then

the Court is required to forward the child to the Juvenile

Justice Board3 for passing appropriate orders and further

if any sentence has been imposed by the Court, the same

shall be deemed to have no effect. In view of the above

statutory provisions and in view of the findings recorded,

the appellant having been held to be a child on the date of

commission of the offence, the sentence imposed has to be

made ineffective.

15. The relief to be extended to the appellant may be

examined through a different perspective also, that is,

whether he has already undergone maximum sentence

which can be awarded against a child in conflict with law

3 In short, “JJB”

15 for committing a heinous offence and who is below age of

16 years. Section 18 of the 2015 Act would be relevant in

this respect and the same is reproduced hereunder:

“18. Orders regarding child found to be in conflict with law.— (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,—

(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to pay fine:

16 Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child’s well-being for any period not exceeding three years;

(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child’s well-being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:

Provided that if the conduct and behaviour of the child has been such that, it would not be in the child’s interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

(2) If an order is passed under clauses (a) to (g) of sub-

section (1), the Board may, in addition pass orders to—

17

(i) attend school; or

(ii) attend a vocational training centre; or

(iii) attend a therapeutic centre; or

(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or

(v) undergo a de-addiction programme.

(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.”

16. On a perusal of the aforesaid Section 18 of the 2015

Act, it is to be noticed that the JJB having found a child

to be in conflict with law who may have committed a petty

or serious offence and where heinous offence is

committed, the child should be below 16 years, can pass

various orders under clauses (a) to (g) of sub-section (1)

and also sub-section (2). However, the net result is that

whatever punishment is to be provided, the same cannot

exceed a period of three years and the JJB has to take full

care of ensuring the best facilities that could be provided

to the child for providing reformative services including

18 education, skill development, counselling and psychiatric

support.

17. In the present case, the appellant is held to be less

than 16 years, and therefore, the maximum punishment

that could be awarded is upto 3 years. The appellant has

already undergone more than 5 years. His incarceration

beyond 3 years would be illegal, and therefore, he would

be liable to be released forthwith on this count also.

18. Having considered the facts of the case and the

findings recorded above, it would also be appropriate to

briefly deal with the case law on the point as to whether

once an accused after conviction at the stage of appeal is

held to be a juvenile/child under the provisions of the

2015 Act, what would be the status of the trial, the

conviction and sentence recorded by the Trial Court and

the appellate Courts. Whether the trial itself would stand

vitiated for lack of jurisdiction by the regular Sessions

Court and it would be the JJB alone which could make an

19 inquiry into the offence committed based upon the

evidence led by the prosecution. If the inquiry has not

been conducted by the JJB, then whether the entire

proceedings need to be quashed or only the sentencing

aspect would require consideration in accordance with the

2015 Act.

19. We may note here at the outset that the appellant for

the present has chosen not to challenge the conviction but

is only claiming juvenility and consequently the benefit of

sentence provided under the 2015 Act, reserving his right

to address on conviction and sentence if he fails on the

preliminary issue of juvenility.

20. There are a series of judgments on the said issue.

Some have set aside the conviction, sentence and have

terminated the proceedings, others have upheld the

conviction but on the basis of sentence already undergone

being more than the maximum permissible under the

Juvenile Justice (Care and Protection of Children) Act,

20 20004 have directed for release of the accused and third,

where after maintaining the conviction, this Court has

referred the matter to the JJB for passing appropriate

orders on sentence. All the judgments delivered earlier

which are briefly discussed hereunder relate to the 2000

Act. Present case falls under the 2015 Act as the offence

itself is of the year 2017.

21. In the case of Jitendra Singh alias Babboo Singh and

another vs. State of Uttar Pradesh5, a two-Judge Bench

of this Court confirmed the conviction but as the appellant

therein could only be awarded imposition of fine, the

existing fine of Rs.100/- was found to be grossly

inadequate and accordingly, the matter was remitted to

the JJB for determining the appropriate quantum of fine

that should be levied on the appellant and the

compensation that should be awarded to the family of the

victim.

4 In short “2000 Act” 5 2013 (11) SCC 193

21

22. Justice Madan B. Lokur, the first author of the

judgment dealt with the issue as to whether the conviction

could be sustained by this Court or it was only the

sentence which was to be dealt with in accordance with

the 2000 Act. Almost all the previous judgments were

referred to in paragraphs 24, 24.1 to 24.7, 25, 25.1 to

25.2, 26, 26.1 to 26.2 and 27 of the report with respect to

all the four categories of the cases wherein different views

have been taken by this Court. The first category was

where conviction was upheld but sentence quashed. The

second category was where conviction was upheld but

sentence was modified to the period already undergone.

The third category was where conviction and sentence

both were set aside and the fourth category was where the

conviction was upheld and the matter referred to the JJB

for awarding a suitable sentence. In paragraph 28 of the

report Justice Lokur sums up the four categories.

Further in paragraph 29, reference is made to section 20

of the 2000 Act and it was finally concluded in paragraph 22 30 that the matter needs to be examined on merits and if

the juvenile is found guilty of the offence, he could not be

allowed to go unpunished but considering the provisions

of the 2000 Act, the question of sentence must be left to

the JJB. It would be proper to reproduce paragraphs 28,

29 and 30 of the report of Justice Lokur, which read as

follows:

“28. The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the

23 jurisdictional Juvenile Justice Board on the award of sentence.

29. In our opinion, the course to adopt is laid down in Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. This 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

24 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.”

30. It is clear that the case of the juvenile has to be examined on merits. If it found that the juvenile is guilty of the offence alleged to have been committed, he simply cannot go unpunished. However, as the law stands, the punishment to be awarded to him or her must be left to the Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000. This is the plain requirement of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In other words, Ashwani Kumar Saxena (2012) 9 SCC 750, should be followed.”

23. Justice T.S. Thakur while concurring with the view

taken by Justice Lokur, in his supplementing opinion also

dealt with this aspect of the matter and in paragraph 82

of the report was of the view that insofar as the conviction

was concerned, the same could be examined by this Court,

however, on the sentence part, the benefit admissible

25 under the 2000 Act ought to be extended. Paragraph 82 of

the report is reproduced hereunder: -

“82. A careful reading of the above would show that although a claim of juvenility can be raised by a person at any stage and before any court, upon such court finding the person to be a juvenile on the date of the commission of the offence, it has to forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed shall be deemed to have (sic no) effect. There is no provision suggesting, leave alone making it obligatory for the court before whom the claim for juvenility is made, to set aside the conviction of the juvenile on the ground that on the date of commission of the offence he was a juvenile, and hence not triable by an ordinary criminal court. Applying the maxim expressio unius est exclusion alterius, it would be reasonable to hold that the law insofar as it requires a reference to be made to the Board excludes by necessary implication any intention on the part of the legislature requiring the courts to set aside the conviction recorded by the lower court. Parliament, it appears, was content with setting aside the sentence of imprisonment awarded to the juvenile and making of a reference to the Board without specifically or by implication requiring the court concerned to alter or set aside the conviction. That perhaps is the reason why this Court has in several

26 decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7-A(2) of the Act.”

24. Similar view was taken by a two-Judge Bench of this

Court in the case of Mahesh vs. State of Rajasthan and

others6, wherein this Court confirmed the conviction.

However, the sentence imposed was modified to the period

undergone. The aforesaid judgment relies upon the law

laid down in the case of Jitendra (supra). After framing

the issue as to whether the validity/correctness of the

conviction recorded by Trial Court could be maintained,

this Court proceeded to give due consideration in

paragraph nos. 4, 5 and 6 of the judgment. Thereafter the

Bench proceeded to consider the merits of the conviction

and upheld the same in paragraph no.7. Paragraph nos.

4 to 7 of the report are reproduced hereunder:

“4. In the aforesaid facts, two questions arise for determination in the present appeals before us. The

6 (2018) SCCOnline SC 3655

27 first is with regard to the validity/correctness of the conviction recorded by the learned trial Court and affirmed by the High Court and, secondly, if the conviction to be maintained what should be the appropriate measure of punishment/sentence and whether the same should be imposed by this Court or the matter be remanded to the Juvenile Justice Board in accordance with the provisions of Section 20 of the Act of 2000.

5. The position in law in this regard is somewhat unsettled as has been noticed and dealt with by this Court in Jitendra Singh alias Babboo Singh and another versus State of Uttar Pradesh wherein in paragraphs 24 to 27 four categories of cases have been culled out where apparently different approaches had been adopted by this Court. The net result is summed up in paragraph 28 of the aforesaid report which explains the details of the categorization made in the earlier paragraphs of the said report. Paragraph 28 of the said report, therefore, would require a specific notice and is reproduced below:

“28. The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the

28 facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence.”

6. The validity of the conviction in respect of the incident which occurred almost two decades back, in our considered view, ought to be decided in these appeals and the entire of the proceedings including the punishment/sentence awarded should not be interfered with on the mere ground that the accused appellants were juveniles on the date of commission of the alleged crime. Judicial approaches must always be realistic and have some relation to the ground realities. We, therefore, adopt one of the possible approaches that has been earlier adopted by this Court in the four categories of cases mentioned above to examine the correctness of the conviction of the

29 accused appellants under the provisions of the IPC, as noticed above.

7. In this regard, having perused the materials on record we find no ground whatsoever to take a view different from what has been recorded by the learned trial Court and affirmed by the High Court. The conviction of the accused appellants under Sections 323, 324, 325, 427, 455 read with Section 149 IPC accordingly shall stand affirmed.”

25. In the case of Satya Deo alias Bhoorey vs. State of

Uttar Pradesh7, following the ratio and legal position laid

down in Jitendra Singh (supra), this Court upheld the

conviction and after setting aside the sentence of life

imprisonment awarded to the appellant, it was directed

that the jail authorities would produce the appellant

before the JJB within seven days, and thereafter, the JJB

would pass appropriate orders regarding the detention

and custody with respect to the appellant therein.

26. We may also refer to the judgment of this Court in the

case of Raju vs. State of Haryana8, wherein Justice

7 (2020) 10 SCC 555 8 (2019) 14 SCC 401

30 Mohan M. Shantanagoudar speaking for himself, Justice

N.V. Ramana (as he then was) and Justice Indira

Banerjee, set aside the conviction and sentence of the

appellant therein and as the appellant therein had already

undergone almost six years’ incarceration but had been

released on bail, the bail bonds were discharged and all

proceedings against the appellant were declared to have

terminated.

27. In the aforesaid case, the appellant had not taken the

plea of juvenility before the Trial Court, however, such plea

was raised before the High Court but the same was

rejected. However, this Court got an inquiry conducted by

the Registrar (Judicial) of this Court who found him to be

aged less than 18 years. The judgment in this case mainly

dealt with the issue as to whether the report of Registrar

(Judicial) of this Court could be accepted over and above

the finding of the High Court which was different. The

judgment proceeds to deal with this issue and ultimately

comes to the conclusion that this could be done provided 31 this Court itself tests the correctness of the report of the

Registrar (Judicial). It is only in the penultimate

paragraph no. 27 while allowing the appeal it granted the

relief of setting aside the conviction, sentence and further

terminated the entire proceedings. There is no prior

discussion on the issue whether conviction was required

to be set aside or not on this technical ground. Merits of

the conviction was not gone into. No ratio is laid down in

the said case on this issue. Only while granting relief,

conviction has also been set aside.

28. Following the above judgment in the case of Raju

(supra), a two-judge Bench of this Court in the case of

Ashok Kumar Mehra and Another Vs. State of Punjab

and Others9 set aside the judgment of conviction and

sentence awarded to appellant no. 2 therein who had

claimed to be a juvenile. Paragraph No. 14 of the said

judgment which grants the relief is reproduced herein: 9

In 2019 (6) SCC 132

32 “In view of the foregoing discussion, we are of the considered opinion that since Appellant 2 was a juvenile on the date of commission of the offence and though till date he has already undergone considerable jail sentence partly as an undertrial and partly as a convict, yet the appeal filed by Appellant 2 has to be allowed as was done in the case of Raju (supra) without going into the merits of the case and passing any other consequential order in that regard.”

29. It will be pertinent to mention that in this judgment

also there is no discussion with regard to the issue as to

whether the conviction should be set aside. This judgment

also does not lay down any ratio that if with respect to a

juvenile a trial has been conducted by a Sessions Court

without the accused having claimed juvenility before it,

conviction could be set aside as being vitiated in law if

subsequently it is held that the accused was a juvenile.

30. The above judgments relate to an offence covered by

either the Juvenile Justice Act, 198610 or the 2000 Act. We

now proceed to briefly discuss the provisions under the

10 “the 1986 Act”

33 2015 Act. Section 9 of the 2015 Act is already reproduced

in the earlier part of this judgment. According to sub-

section (3) of section 9 of the 2015 Act, the Court which

finds that the person who committed the offence was a

child on the date of commission of such offence would

forward the child to the JJB for passing appropriate orders

and sentence, if any, passed by the Court shall be deemed

to have no effect. This does not specifically or even

impliedly provide that the conviction recorded by any

Court with respect to a person who has subsequently after

the disposal of the case found to be juvenile or a child,

would also lose its effect rather it is only the sentence if

any passed by the Court would be deemed to have no

effect.

31. There is another reason why a trial conducted and

conviction recorded by the Sessions Court would not be

held to be vitiated in law even though subsequently the

person tried has been held to be a child.

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32. The intention of the legislature was to give benefit to

a person who is declared to be a child on the date of the

offence only with respect to its sentence part. If the

conviction was also to be made ineffective then either the

jurisdiction of regular Sessions Court would have been

completely excluded not only under section 9 of the 2015

Act but also under section 25 of the 2015 Act, provision

would have been made that on a finding being recorded

that the person being tried is a child, a pending trial

should also be relegated to the JJB and also that such trial

would be held to be null and void. Instead, under section

25 of the 2015 Act, it is clearly provided that any

proceeding pending before any Board or Court on the date

of commencement of the 2015 Act shall be continued in

that Board or Court as if this Act had not been enacted.

Section 25 is reproduced hereunder:

“25. Special provision in respect of pending cases.

- Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court

35 on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”

33. Having considered the statutory provisions laid down

in section 9 of the 2015 Act and also section 7A of the

2000 Act which is identical to section 9 of the 2015 Act,

we are of the view that merits of the conviction could be

tested and the conviction which was recorded cannot be

held to be vitiated in law merely because the inquiry was

not conducted by JJB. It is only the question of sentence

for which the provisions of the 2015 Act would be attracted

and any sentence in excess of what is permissible under

the 2015 Act will have to be accordingly amended as per

the provisions of the 2015 Act. Otherwise, the accused

who has committed a heinous offence and who did not

claim juvenility before the Trial Court would be allowed to

go scot-free. This is also not the object and intention

provided in the 2015 Act. The object under the 2015 Act

dealing with the rights and liberties of the juvenile is only

36 to ensure that if he or she could be brought into the main

stream by awarding lesser sentence and also directing for

other facilities for welfare of the juvenile in conflict with

law during his stay in any of the institutions defined under

the 2015 Act.

34. In view of the above discussion and the position in

law as laid down by the aforesaid judgments and many

others referred to in the above judgments, we approve the

view taken by this court in the case of Jitendra Singh

(supra), Mahesh (supra) and Satya Deo (supra).

35. For all the reasons recorded above, it is ordered as

follows:

The conviction of the appellant is upheld; however,

the sentence is set aside. Further as the appellant at

present would be more than 20 years old, there would be

no requirement of sending him to the JJB or any other

child care facility or institution. Appellant is in judicial

37 custody. He shall be released forthwith. The impugned

judgement shall stand modified to the aforesaid extent.

36. Both the appeals stand partly allowed.

37. Pending applications, if any, are disposed of.

……................................J. [B.R. GAVAI]

.………….........................J. [VIKRAM NATH]

.………….........................J. [SANJAY KAROL] NEW DELHI MARCH 03, 2023.

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