1. This appeal has been preferred against the Judgment and order dated 2.2.2012 passed by the First Additional Sessions Judge (Ex-cadre), Kushinagar by which the accused has been convicted under Section 376, 363, 366 and 368 I.P.C. and was sentenced to undergo 20 years rigorous imprisonment along with fine of Rs. 50,000/- under Section 376 I.P.C. and five years imprisonment along with fine of Rs.10,000/- under Sections 363, 366 and 368 each with default stipulation.
2. As per order in Criminal Revision No. 3412 of 2015, the appellant is held to be juvenile on the date of Judgment.
3. How the accused has to be dealt with, is now a matter of consideration before this court.
4. The order that may be passed regarding juvenile has been specified in Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under:-
"15. Order that may be passed regarding juvenile- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
1[(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law: Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the Probation officer."
5. Section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under:-
"(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death 1[or imprisonment for any term which may extend to imprisonment for life], or committed to prison in default of payment of fine or in default of furnishing security."
7. Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 restricts the period of detention of a juvenile for not exceeding three years.
8. Counsel for the appellant has placed reliance upon (2009) 14 Supreme Court Cases 187, (Isatish alias Dhanna vs. State of Madhya Pradesh and others) in which it has been laid down that thebenefit of the act should be extended to the accused appellant who was a minor on the date of occurrence. It has further been held that at this distant point of time to refer the appellant to the Juvenile Justice Board would not be proper and in the aforesaid case the appellant was ordered to be released.
9. Thus, there is no doubt that the appellant cannot be compelled to undergo detention otherwise then provided under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
10. Hon'ble Apex Court in Criminal Appeal No. 210 of 2005 (Pratap Singh vs. State of Jharkhand and Anr.), a judgment delivered on 02.02.2005 by the Bench of five Hon'ble Judges in which it has been held as under:-
"26. 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 Juvenile Court 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 the juvenile has committed the offence."
11. Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under:-
"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. 1[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."
12. Section 64 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that where a juvenile is undergoing a sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution. Thus, provision show that even in cases where a mere inquiry is commenced or even where a juvenile has been sentenced a provision of 2000 Act would apply. Therefore, Section 20 of the Act 2000 is to be appreciated in the context of the aforesaid provisions.
13. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence "Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.
14. Thus, we conclude that although conviction of the appellant has been confirmed but as regards sentence is concerned, he should be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.
15. In (2013) 7 Supreme Court Cases 705, (Salil Bali vs. Union of India and another), the Hon'ble Apex Court has specified its concern about punishment as regards juvenile is concerned. It has been mentioned in the aforesaid judgment as under:-
"One misunderstanding of the law relating to the sentencing of the juveniles, needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of eighteen years, a juvenile who is found guilty of the heinous offence is allowed to go free. Section 15(1)(g), as it stood before the amendment came into effect from 22.08.2006, reads as follows:-
"15. (1)(g) make as order directing the juvenile to be sent to a special home for a period of three years:
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reason to be recorded, reduce the period of stay to such period as it thinks fit."
16. It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile.
17. From a plain reading the explanation of Section 20 is that unless pending cases, which would include not only trial but even subsequent proceeding 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 of the Act.
"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 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."
18. A question crops up as to how the juvenile in conflict with law who was a juvenile at the time of occurrence but who has subsequently attained the majority and is about 47 years of age shall be dealt with. As informed by learned A.G.A., there is no special home for such people who are convicted but have ceased to be a juvenile.
19. Perusal of the Juvenile Justice (Care and Protection of Children) Act, 2000 under Section 15(1)(g) the board may if it thinks fit, make an order directing the juvenile be sent to a special home for a period of three years although according to the provisions, the period of stay can also be reduced. Besides other orders which can be passed under Section 15 by the Board.
20. Perusal of the Judgment under appeal shows that the accused was in jail when the Judgment was pronounced on 2.2.2012, hence, the accused has remained in jail for more than three years. He cannot further be detained in jail. Hence, the accused shall be set free in the said case.
21. The appeal is accordingly disposed of.
Date:-2.2.2016 Ram Murti