Satish @ Dhanna vs State Of M.P. & Ors

Satish @ Dhanna ...Appellant

Versus

State of M.P. and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Madhya Pradesh High Court, Indore Bench. Stand of the present appellant

was that he was juvenile when the occurrence took place. His date of birth

was 12.11.1980. Various accused persons faced trial for offence punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal

Code, 1860 (in short the `IPC'). Learned counsel for the appellant

submitted that since the accused was juvenile, his trial could not have been

held alongwith others. Learned counsel for the respondent-State on the

other hand submitted that the question whether the appellant was a juvenile

was never raised earlier.

3. It is to be noted that prior to the date of occurrence the Madhya

Pradesh Children Act, 1928 (in short the `Children Act') was in force. The

Juvenile Justice Act, 1986 (in short `1986 Act') was in operation on the date

of occurrence. Subsequently, the Juvenile Justice (Care and Protection of

Children) Act, 2000 (hereinafter referred to as `2000 Act') has been

enacted. Under section 2(h) of the 1986 Act, a juvenile is one who is below

the age of 16 years. Under the 2000 Act under Section 2(k), a juvenile or

child means a person who has not completed 18 years of age. The fact that

on the date in question, i.e. on the date of occurrence and the date of

production before the Court the appellant had not completed 18 years of age

stands fully established on record. Section 16 of the 2000 Act provides that

no juvenile shall be sentenced to death or imprisonment for life or

committed to prison in default of payment of fine or in default of furnishing

2 security. Section 20 provides for special provisions in respect of pending

cases. The 2000 Act came into force on 1.4.2001. In Bhola Bhagat v. State

of Bihar (1997 (8) SCC 720) this Court after referring to the decision in

Gopinath Ghosh v. State of West Bengal (1984 Supp SCC 228) and Bhoop

Ram v. State of U.P. (1989 (3) SCC 1) held that an accused who was

juvenile cannot be denied the benefit of provisions of 2000 Act. The course

this Court adopted in Gopinath's and Bhola Bhagat's cases (supra) was to

sustain the conviction, but at the same time modify the sentence awarded to

the convict. At this distant point of time to refer the appellant to the Juvenile

Board would not be proper. Therefore, while sustaining the conviction for

the offence for which he has been found guilty, the sentence awarded is

restricted to the period already undergone. The appellant be released from

custody forthwith unless required to be in custody in connection with any

other case. .

4. The appeal is allowed.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY)

3 New Delhi, April 17, 2009

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