1 Rule. Service is waived. At the request of the learned advocates for the parties, this matter is taken up for final hearing.
2 This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 and the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by Amendment Act, 2006 on 28.8.2006, and the Juvenile Justice (Care and Protection of Children) Rules, 2007, is filed by the petitioner, original accused No.7 of TADA Case No.64 of 1991, conducted and tried by the learned Additional Sessions Judge and Designated Judge, at Vadodara, wherein, by judgment and order dated 10.4.1992, the petitioner was convicted for the offences under Sections 147, 145, 302 read with Sections 149, 451 of the Indian Penal Code, read with Section 149 and 3 of the TADA Act, and sentenced to undergo life imprisonment for the offence under Section 302 read with Section 149, imprisonment of two years RI and Rs.1000 fine and in default three month RI each for the offence under Section 451 read with Section 149 and to undergo life imprisonment for the offence under Section 3 of the TADA Act, and all the substantive sentences are directed to run concurrently. Against judgment and order dated 10.4.1992, Criminal Appeal No.276 of 1992 under Section 19(1) of the TADA Act was filed before the Apex Court, which also came to be dismissed by the Apex Court vide judgment and order dated 23.8.1996. The above facts are not in dispute. However, in this petition, the petitioner has raised a plea that, on the date of commission of offence, the petitioner was a 'juvenile' as defined under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, [for short 'the Act'], having the date of birth of the petitioner as 24.11.1973 and the alleged incident took place on 23.4.1991 and, thus, on the date of commission of offence, the petitioner was aged 17 years 4 months 29 days. It is submitted that the Juvenile Justice (Care and Protection of Children) Rules, 2007, [for short 'the Rules'] defines the procedure to be followed in a case of 'juvenile offender in conflict with law'. Reliance is placed to the provisions of Sections 2(k), 2(l), 7A, 20, 49, Rules 12 and 19, in the context of the amendment introduced in the Amendment Act, 2006. In support of his submission, the learned counsel for the petitioner has relied upon the following judgments:
[i] (2009) 13 SCC 211: Hari Ram vs. State of Rajasthan;
[ii] (2011) 2 SCC 251: Lakhanpal vs. State of Bihar
[iii] (2011) 13 SCC 744: Amitsingh vs. State of Maharashtra.
[iv] Oral order dated 29.4.2010 passed by this Court in Special Criminal Application No.452 of 2009.
[v] Oral order dated 21.11.2011 passed by this Court [Coram; Rajesh H. Shukla,J.] in Special Criminal Application No.2458 of 2011;
and prayed that benefits of the amended Act and the Rules be extended to the petitioner who was below 18 years on the date of commission of offence.
3 When the matter came up for admission hearing, after considering the relevant aspects, this Court [Coram; J.C. Upadhyaya, J.} passed the order dated 13.12.2011, as under:
“NOTICE returnable on 25/01/2012. Mr. KP Raval, Ld. APP appears and waives service of notice for the respondent – State.
2. Considering the facts and circumstances of the case, in the meanwhile, Ld. Sessions Judge, Vadodara, shall inquire about the age of the applicant at the time of commission of the offence. The applicant [original accused no. 7] or his legal representatives shall remain present before the Ld. Sessions Judge, Vadodara, on 02/01/2012 with all documentary and oral evidence showing the age of the applicant at the time of commission of the offence. The Ld. Sessions Judge, Vadodara, may record oral evidence of the applicant and/or his witnesses after giving appropriate notice to the Ld. PP of Vadodara on behalf of the State. After the completion of the inquiry, the Ld. Sessions Judge, Vadodara, shall forward all the inquiry papers together with his clear report regarding the age of the applicant at the time of commission of the offence. The report with the inquiry papers shall be forwarded to this Court so as to reach to this Court on or before 20/01/2012.
This order shall be immediately communicated to the Ld.
Sessions Judge, Vadodara.”
4 Pursuant to the order dated 13.12.2011 passed by this Court, the learned Principal District & Sessions Judge, Vadodara, submitted report dated 19.1.2012 to the Registrar General, High Court of Gujarat. The relevant observations and findings recorded by the learned Principal District & Sessions Judge, Vadodara, in the report dated 19.1.2012 are as under:
“I have perused these affidavits. Some of the deponents of the above affidavits have also produced proof regarding their birth. Elder sister namely Sherbanu Yusufkhan Pathan has produced her registration of birth along with her affidavit which was registered on 13.12.1962. Another elder sister Akhtarbanu Abdulrashid Shekh deponent of affidavit Exh.15 has also produced certificate regarding registration of birth along with her affidavit. Her birth was registered on 31.7.1971 i.e. on the date of birth. Deponent of affidavit Exh.16 Sakera Farukh Shekh who is also elder sister of applicant has produced her birth certificate along with her affidavit and her birth was also registered on the date of birth itself. The another elder sister Sabera Mustak Shekh whose birth date is also 23.12.1964 has also produced her certificate regarding registration of birth along with her affidavit Exh.17. Thus, birth of all the children of applicant's father were registered either on the date of birth or soon after the date of birth. This is also deposed by elder brother of the applicant that birth of all the sisters and brothers were registered with the Vadodara Municipal Corporation. The birth of applicant namely Sabbirhusen i.e. original accused No.7 was also registered with the Vadodara Municipal Corporation and certificate of registration of birth is produced at Exh.4 in the deposition of Iqbalhusen Mohmmedhusen Shekh. He has also produced School Leaving Certificate of applicant vide Exh.5 wherein also birth date of applicant is mentioned. Thus, in both the documents i.e. Certificate regarding Registration of Birth and School Leaving Certificate of applicant, birth date is shown as 24.11.1973. This tallies with each other. Birth of applicant Sabbirhusen was registered with the Vadodara Municipal Corporation just two days after his birth and this fact is corroborated by the deposition of Health Officer and Registrar (Birth & Death), Vadodara Municipal Corporation M. Babubhai Ambubhai Singada whose deposition is recorded by this Court at Exh.7.
The Registrar (Birth & Death), Vadodara Municipal Corporation has come with the original register of 1973 wherein birth is registered. But the said register is in torn condition and the pages have been detached from the bound register. Some of the pages are turned into pieces and therefore it is not possible to locate which page is pertaining to particular page. However, as per the deposition of Registrar (Birth & Death), Vadodara Municipal Corporation, the Certificate of Birth produced at Exh.4 is original one and the same was issued at the relevant time.
He has also produced the letter dated 19.12.2011 issued by the Additional Director, Gandhinagar, directing to reconstruct the torn register and accordingly new register was reconstructed wherein entry of birth of applicant Sabbirhusen Shekh is entered at Sr. No.174. The relevant abstract of reconstructed register is produced at Exh.9 and the letter issued by the Additional Director, Gandhinagar, is produced at Exh.8. Thus, on over all perusal of the deposition of applicant's brother as well as deposition of the Registrar (Birth & Death), Vadodara Municipal Corporation and while considering the documentary evidence, it is established that the birth date of applicant Sabbirhusen i.e. original accused No.7 is 24.11.1973.
On behalf of applicant, reliance is placed on the judgment of Bhoop Ram vs. State of UP reported in (1989) 3 SCC 1. The principle is discussed in this judgment that in absence of any other independent material such medical opinion about the age of child should not prevail over the entries in school certificate. So far the present matter is concerned, we are not deciding the case. The Hon'ble High Court has directed this court to give report regarding age of applicant at the time of commission of offence after inquiring into the matter. The second judgment on which reliance is placed is Bhola Bhagat vs. State of Bihar reported in AIR 1993 SC 236. However, the principle discussed in this reported judgment is that the court cannot overlook beneficial provision of the Act on technical ground. Here, we are not giving judgment, and, therefore, we have to just rely upon the material produced in the inquiry. The third judgment on which reliance is placed is Rajinder Chandra vs. State of Chhattisgarh reported in AIR 2002 SC 748. The principle discussed in this judgment is that if two views are possible then the court should lean in favour of accused. The another judgment on which reliance is placed is Dharmabir vs. State (NTC of Delhi) reported in (2010) 5 SCC 344. In this judgment, the Hon'ble Supreme Court has stated that the claimant of juvenility can be made at any stage of trial and even after conviction also. The inquiry is to be conducted U/s 7(a) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Lastly, the judgment given by the Hon'ble Gujarat High Court in the case of Mukesh @ Pappu Ishwardas Punjabi vs. State of Gujarat in the matter of Special Criminal Application No.2458/2011 is also relied upon by applicant. In this judgment also, police authority has relied upon the birth date mentioned in the Birth Certificate.
Thus, on over all perusal of the principles canvassed by the Hon'ble Supreme Court and the Hon'ble High Court and considering the evidence led by applicant in this matter, I am of the opinion that birth of applicant i.e. original accused No.7, namely, Sabbirhusen @ Lalu Inda Mohmmedhusen Shekh is 24.11.1973. As per the averments made in the petition filed by applicant before the Hon'ble High Court, the date of offence is 23.4.1991. Considering the birth date of applicant as 24.11.1973, he was aged about 17 years and 5 months at the time of commission of offence i.e. at the time of occurrence of offence which is 24.4.1991. Thus, he would have completed 18 years on 23.11.1991 and the incident occurred on 23.4.1991. This means that he was aged about 17 years and 5 months on the date of incident/offence. Thus, my clear finding regarding age of applicant at the time of commission of offence is to the effect that the applicant was aged about 17 years and 5 months on the date of offence.”
5 Thus, the date of birth, as claimed by the petitioner and so verified on the basis of necessary evidence by the learned Principal District & Sessions Judge, Vadodara, in no uncertain terms reveals as 24.11.1973, so also is undisputed fact about date of commission of offence on 23.4.1991, thus, the petitioner was aged 17 years 5 months 29 days and admittedly below 18 years on the date of commission of offence.
6 The subject matter involved in this petition under Article 226 of the Constitution is about applicability of Juvenile Justice (Care and Protection of Children) Act, 2000, which came into force with effect from 01.04.2001 and subsequently came to be amended by Amendment Act of 2006 read with definition of "juvenile" as provided under Sections 2(k) and (l), 7A and 20 of the Act read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and whether the benefits accrued under the above Act are to be accorded to the petitioner herein. The Apex Court in the case of Hari Ram v. State of Rajasthan reported in (2009) 13 SCC 211 particularly held as under :
"The problem which frequently arises after the enactment of the Juvenile Justice Act, 2000, is regarding the application of the definition of "juvenile" as given under Section 2(k) and (l) for offences committed prior to 1st April. 2001 when the Juvenile Justice Act, 2000 came into force.
As per Sections 2(k), 2(1), 7-A of the 2000 Act and Rule 12 of 2007 Rules read with Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is 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. The said position has been 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 make 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 Section 2(l) 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.
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 the present 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. The law as now crystallized on a conjoint reading of Sections 2(k), 2(I), 7A, 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. Since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force and on the date of the incident it has to be held that he was a juvenile."
In paragraphs 16 to 42, it is held as under:
"16. As indicated in the very beginning of this judgment, the Juvenile Justice Act, 2000, was enacted to deal with offences allegedly committed by juveniles on a different footing from adults, with the object of rehabilitating them. The need to treat children differently from adults in relation to commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in mind. Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the constitutional goals contemplated in Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected.
17. Subsequently, in keeping with certain international Conventions and in particular the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, commonly known as the Beijing Rules, the Legislature enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 to attain the following objects
(i) to lay down the basic principles for administering justice to a juvenile or the child;
(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults;
(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislation;
(vii) to create special juvenile police units with a humane approach through sensitization and training of police personnel;
(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
(ix) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts - one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;
(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child."
The said Act ultimately came into force on 1st April, 2001.
18. Section 2(k) of the said Act defines a juvenile or child as a person who has not completed eighteenth years of age.
19. A broad distinction has, however, been made between juveniles in general and juveniles who are alleged to have committed offences. Section 2(1) defines "a juvenile in conflict with law" as a juvenile who is alleged to have committed an offence. Determination of age, therefore, assumes great importance in matters brought before the Juvenile Justice Boards. In fact, Chapter II of the Juvenile Justice Act, 2000, deals exclusively with juveniles in conflict with law and provides a complete Code in regard to juveniles who are alleged to have committed offences which are otherwise punishable under the general law of crimes.
20. Section 4 of the Juvenile Justice Act, 2000, provides for constitution of Juvenile Justice Boards for every district in a State to exercise and discharge the duties conferred or imposed on such Boards in relation to juveniles in conflict with law. Section 18 of the Act prohibits joint proceedings and trial of a juvenile and a person who is not a juvenile and the punishment that can be awarded to a juvenile is enumerated in Section 15.
21. Since the application of the Juvenile Justice Act, 2000, to a person brought before the Juvenile Justice Board (hereinafter referred to as 'the Board') depends on whether such person is a juvenile or not within the meaning of Section 2(k) thereof, the determination of age assumes special importance and the said responsibility has been cast on the said Board.
22. Subsequently, after the decision of a Constitution Bench of this Court in the case of Pratap Singh vs. State of Jharkhand & Another [(2005) 3 SCC 551], the legislature amended the provisions of the Act by the Amendment Act, 2006, by substituting Section 2(1) to define a "juvenile in conflict with law" as a "juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence" (emphasis supplied) and to include Section 7-A which 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 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 dale of commencement of this Act.
(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 order, and the sentence if any, passed by a Court shall be deemed to have no effect."
(emphasis supplied)
23. Section 7-A makes provision for a Claim of juvenility to be raised before any Court at any stage, even after final disposal of a case and sets out the procedure which the Court is required to adopt, when such Claim of juvenility is raised. It provides for an Inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the person in question is a juvenile or not.
24. The aforesaid provisions were, however, confined to Courts, and proved inadequate as far as the Boards were concerned.
25. Subsequently, in the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is a comprehensive guide as to how the provisions of the Juvenile Justice Act, 2000, are to be implemented, Rule 12 was introduced providing the procedure to be followed by the Courts, the Boards and the Child Welfare Committees for the purpose of determination of age in every case concerning a child or juvenile or a juvenile in conflict with law.
26. Since the aforesaid provisions are interconnected and lay down the procedures for determination of age, the said Rule is reproduced hereinbelow:
"12. Procedure to be followed in determination of Age.-
(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the dale of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining.
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) if the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order staling the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further Inquiry or otherwise is required, inter alia in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
27. Sub-Rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub- rule (3) the Court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further Inquiry is to be conducted by the Court or Board after examining and obtaining any other documentary proof referred to in Sub-rule (3) of Rule 12. Rule 12. therefore, indicates the procedure to be followed to give effect to the provisions of Section 7A when a claim of juvenility is raised.
28. One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the definition of "juvenile" under Section 2(k) and (I) in respect of offences alleged to have been committed prior to 1st April. 2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986 Act, the upper age limit for male children to be considered as juveniles was 16 years.
29. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1st April, 2001. would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him?
30. The said question, which is identical to the question raised in these proceedings, was considered in the case of Arnit Das vs. State of Bihar [(2000) 5 SCC 488], wherein, in the light of the definition of "juvenile" under the 1986 Act. which was then subsisting, this Court came to a finding that the procedures prescribed by the 1986 Act were to be adopted only when the Competent Authority found the person brought before it or appearing before it to be under 16 years of age, if a boy, and under 18 years of age, if a girl, on the date of being so brought or such appearance first before the Competent Authority.
31. This Court in Arnit Das also came to a finding that the date of commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the 1986 Act.
32. In Arnit Das this Court sought to distinguish the earlier decisions in the case of Santanu Mitra's case (supra), Bhola Bhagat vs. State of Bihar [(1997) 8 SCC 720] and Krishna Bhagwan vs. State of Bihar [AIR 1989 Pat. 217], which was a Full Bench decision. It also over-ruled the decision of the Calcutta High Court in Dilip Saha vs. State of W.B. [AIR 1978 Cat 529], where the Calcutta High Court, while interpreting the provisions of the West Bengal Children's Act, 1959, which is a pari materia enactment, took the view that the age of the accused at the time of commission of the offence is the relevant age for attracting the provisions of the said Act and not his age at the time of trial.
33. The question which fell for decision in Arnit Das's case (supra), once again fell for the consideration of this Court in the case of Pratap Singh's case (supra), where the decision of this Court in Umesh Chandra's case (supra), which expressed a view which was contrary to that expressed in Arnit Das's case (supra), was brought to the notice of the Court, which referred the matter to the Constitution Bench to settle the divergence of views. In fact, the Constitution Bench formulated two points for decision, namely.
(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/competent Authority?
(b) Whether the Act of 2000 will be applicable in a case where a proceeding is initiated under the 1986 Act and was pending when the Act of 2000 was enforced with effect from 1.4.2001?
34. While considering the first question, the Constitution Bench had occasion to consider the decision of the three Judge Bench in Umesh Chandra's case (supra). wherein it was held that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. Consequently, the decision in Arnit Das's case (supra) was over-ruled and the view taken in Umesh Chandra's case (supra) was declared to be the correct law.
35. On the second point, after considering the provisions of Sections 3 and 20 of the Juvenile Justice Act, 2000, along with the definition of "juvenile" in Section 2(k) of the Juvenile Justice Act, 2000. as contrasted with the definition of a male juvenile in Section 2(h) of the 1986 Act, the majority view was that the 2000 Act would be applicable to a proceeding in any Court/ Authority initiated under the 1986 Act which is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001. In other words, a male offender, who was being proceeded with in any Court/Authority initiated under the 1986 Act and had not completed the age of 18 years on 1.4.2001. would be Governed by the provisions of Juvenile Justice Act. 2000.
36. In his concurring judgment, S.B. Sinha, J., while considering the provisions of Section 20 of the Juvenile Justice Act, 2000. observed that for the purpose of attracting Section 20 it had to be established that (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. The unanimous view of the Constitution Bench was that the provisions of the Juvenile Justice Act. 2000, have prospective effect and not retrospective effect, except to cover cases where though the male offender was above 16 years of age at the time of commission of the offence, he was below 18 years of age as on 1.4.2001. Consequently, the said Act would cover earlier cases only where a person had not completed the age of 18 years on the date of its commencement and not otherwise.
37. The said decision in Pratap Singh's case (supra) led to the substitution of Section 2(1) and the introduction of Section 7A of the Act and the subsequent introduction of Rule 12 in the Juvenile Justice Rules. 2007, and the amendment of Section 20 of the Act. Read with Sections 2(k), 2(1), 7A and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, is probably the Section most relevant in setting at rest the question raised in this . appeal, as it deals with cases which were pending on 1st April. 2001, when the Juvenile Justice Act, 2000, came into force.
38. The same is, accordingly, reproduced hereinbelow:
"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.]"
The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act. 2000, to cases pending on 1st April, 2001. where a juvenile, who was below 18 years at the time of commission of the offence, was involved.
39. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (1) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April. 2001, when the Juvenile Justice Act, 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. In fact, Section 20 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 Juvenile Justice Act, 2000.
40. At this point it may be noted that the decision of the Constitution Bench in Pratap Singh's case (supra) was rendered at a point of time when the amendments to Sections 2(1) and 20 and the introduction of Section 7-A had not yet been effected, nor was Rule 12 of the 2007 Rules available.
41. Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules.
42. The decisions rendered by this Court and the High Courts prior to 1st April, 2001, when the Juvenile Justice Act, 2000, came into force and thereafter can, therefore, be divided into two groups. The decision in Pratap Singh's case (supra) ; and in the case of Munney @ Rahat Jan Khan vs. State of U.P. [(2006) 12 SCC 697] fall into the first category, whereas the decisions in Jameel vs. State of Maharashtra [(2007) 11 SCC 420], Vimal Chadha vs. Vikas Chaudhary [(2008) 8 Scale 60S], Babloo Pasi vs. State of Jharkhand [(2008) 13 Scale 137] and Ranjit Singh vs. State of Haryana [(2008) 9 SCC 453] fall into the second category.
6.1 In paras 49 onwards, the Apex Court considered the effect of the proviso to Section 7-A introduced by the amending Act vis-a-vis definition of Juvenile in Sections 2(k) and 2(l) of the Act as amended in 2006 and thereafter in paras 50 to 59 held as under:
"50. The said intention of the legislature was reinforced by the amendment effected by the said Amending Act to Section 20 by introduction of the Proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any Court the determination of juvenility of such a juvenile has to be in terms of clause 2(I) even if the juvenile ceases to be so "on or before the dale of commencement of this Act" (emphasis supplied) and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed.
51. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act. 2000- as amended by the Amendment Act, 2006. which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act, i.e., 3 years.
52. In addition to the above. Section 49 of the Juvenile Justice Act, 2000 is also of relevance and is reproduced hereinhelow :
"49. Presumption and determination of age.-(I) Where it appears to a Competent Authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the Competent Authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority 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."
53. Sub-Section (1) of Section 49 vests the Competent Authority with power to make due Inquiry as to the age of a person brought before it and for the said purpose to lake such evidence as may be necessary (but not an affidavit) and shall record a finding as to whether the person is a juvenile or a child or not. stating his age us nearly as may be.
54. Sub-Section (2) is of equal importance as it provides that no order of a Competent Authority would be deemed to have become invalid merely on account of any subsequent proof that the person, in respect of whom an order is made, is not a juvenile or a child, and the age recorded by the Competent Authority to be the age of the person brought before it would, for the purpose of the Act, be deemed to be the true age of a child or a juvenile in conflict with law.
55. Sub-Rule (3) of Rule 12 indicates that the age determination inquiry by the Court or Board, by seeking evidence, is to be derived from
(i) the matriculation or equivalent certificates, if available, and in the absence of the same;
(ii) the dale of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;
56. Sub-Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the Court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it. may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year.
57. As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, the scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realise their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals.
58. Of the two main questions decided in Pratap Singh's case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was. however, neutralised by virtue of the amendments to the Juvenile Justice Act. 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence.
59. The law as now crystallized on a conjoint reading of Sections 2(k), 2(I), 7A, 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 dale of commission of the offence even prior to 1st April, 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".
6.2 Thus, considering the facts of the case on hand the Apex Court in paras 64 to 69 further held as under:
"64. In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect (sic effect).
65. However, as indicated hereinbefore after the decision in Pratap Singh's case (supra), Section 2(I) was amended to define a juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence.
66. Section 7A was introduced in the 2000 Act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act, 2000.
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 (I) of 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".
6.3. In view of the above position of law as laid down by the Apex Court and considering the undisputed fact about age of the appellant on the date of the commission of the alleged offence was about 16 years and had not completed 18 years of age, and therefore, considering the provisions of sections of 2(k) and 7A read with Section 20 of the said Act, the Apex Court held that the above provisions would be applicable to the case of the appellant and on the date of the alleged incident it was to be held that he was a juvenile. The Apex Court further in paras 70 to 72 held as under:
"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(I) 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.
71. The appeal has, therefore, to be allowed on the ground that notwithstanding the definition of "juvenile" under the Juvenile Justice Act, 1986, the appellant is covered by the definition of "juvenile" in Section 2(k) and the definition of "juvenile in conflict with law" in Section 2(I) of the Juvenile Justice Act, 2000, as amended.
72. We, therefore, allow the appeal and set aside the order passed by the High Court and in keeping with the provisions of Sections 2(k), 2(I),7A and 20 of the Juvenile Justice Act, 2000 and Rules 12 and 98 of the Juvenile Justice Rules, 2007, hold that since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force."
7 The above decision in the case of Hari Ram [supra] was taken into consideration by the Apex Court in the subsequent decisions in the case of Jitendra Singh vs. State of U.P, reported in (2010) 10 SCC 523 and in the case of Bhim vs. State of West Bengal, reported in (2010) 14 SCC 571, where the appellant was aged about 42 years at the time of above decision and, therefore, the Apex Court thought it fit that it would not be conducive for the environment of the special home, particularly to the interest of other juveniles housed therein, to send the appellant there or to keep him at some other place, as postulated in Section 16 of the 2000 Act for the remaining period in terms of Section 15 of the said Act and as the conviction was not the issue, it was sustained, but the sentence awarded came to be quashed and the appellant was ordered to be released forthwith if not required in any other case. In the recent decision in the case of Amit Singh vs. State of Maharashtra, reported in (2011) 13 SCC 744, where the conviction of the petitioner was confirmed by the Supreme Court and it was prayed that the petitioner was a juvenile at the time of alleged offence for the first time before the Supreme Court and the benefit of juvenility was not claimed earlier and the Apex Court, considering all relevant provisions of the Act, allowed the writ petition keeping in mind Section 7A of the amended Act, Rule 12, Rule 98 read with section 20 of 2000 Act and further held that the State Government or Board even after disposal of the case may review case of juvenile and pass order under Section 64 of 2000 Act for immediate release of juvenile whose period of detention had exceeded maximum period provided in Section 15 of 2000 Act, namely, three years.
8 Thus, as regards the claim of juvenility even after disposal of the case finally and confirmed by the Supreme Court, the law is no more res integra and the facts of the case on hand would reveal that the evidence taken by the learned Principal District & Sessions Judge, Vadodara, as reflected in the report dated 19.1.2012, would reveal:
[a] affidavits of the relatives of the petitioneraccused would go to show that the registration of birth of a child in the family was judiciously followed on the day of the birth or immediately thereafter;
[b] birth of the petitioner, Sabbirhusain, was registered with Vadodara Municipal Corporation and certificate of registration of birth was produced at Exh.4 showing the date of birth of the petitioner as 24.11.1973;
[c] even the school leaving certificate of the petitioner was produced vide Exh.5 showing the date of birth of the petitioner as 24.11.1973;
[d] thus, both the above certificates would tally with each other showing the date of birth of the petitioner as 24.11.1973;
[e] the Registrar [Birth & Death] of Vadodara Municipal Corporation produced the original register of birth and his deposition both would confirm that the original certificate of birth of the petitioner was issued at the relevant time showing the date of birth of the petitioner as 24.11.1973;
9 In the facts of the case on hand, it is established that the date of birth, as claimed by the petitioner and so verified on the basis of necessary evidence, as required by Rule 12 of the Rules, by the learned Principal District & Sessions Judge, Vadodara, of the petitioner is 24.11.1973 and the date of commission of offence is 23.4.1991, thus, the petitioner was aged 17 years 5 months 29 days and admittedly below 18 years on the date of commission of offence. Considering the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (as mended by Act of 2006) and Juvenile Justice Rules, 2007 and provisions of law laid down by the Apex Court in case of Hari Ram (supra), more particularly paragraphs 39, 50 to 59, 64 to 69 and 70 to 72, this petition is required to be allowed. That, this Court has not entered into merit of conviction but awarding of sentence to undergo life imprisonment and other concurrent sentences by the Designated Court to the petitioner a juvenile in conflict with law vide judgment dated 10.4.1992 was contrary to the Act and the sentence part deserves to be quashed while maintaining the conviction, as the petitioner is entitled to the benefit of the Act of 2000. It is pertinent to note that the petitioner had already undergone sentence of 13 years in jail since then, which is more than the maximum period for which a juvenile may be confined to a special home, and now the petitioner is aged 38 years.
10 In the result, the petition is allowed. The prayer in terms of paragraph 24(B) is granted. The petitioner is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
(ANANT S. DAVE, J.) (swamy)