1. Heard Sri V.K. Jaiswal, learned counsel for the revisionists and learned A.G.A. and perused the material available on record.
2. This revision has been filed by two accused persons, who are revisionists herein, being dissatisfied with the order dated 10.2.2010 passed by the Additional Sessions Judge, Court No. 1, Allahabad in Session Trial No. 958 of 2005-State Vs. Shreedhar Dubey and others, under Sections 147, 308 323, 504, 506 I.P.C., Police Station Ghoorpur, District Allahabad, whereby the joint application of the revisionists, Paper No. 18C, was rejected and 27.2.2010 was fixed for prosecution evidence.
3. It appears that the revisionists are facing the aforesaid case in which they moved application Paper No. 18C, stating therein that they have been made accused in the said session trial and at the time of occurrence, they were students and minors, hence their case be separated from the other accused persons and the same be forwarded to the Juvenile Court for hearing. According to their High School Certificates Paper No. 19C/2 and 19C/3 annexed with affidavit 19C of Shreedhar Dwivedi dated 28.2.2007, the date of birth of Kamlakar Dwivedi is 19.11.1977 and that of Sudhakar Dwivedi is 1.10.1978.
4. The learned trial court after going through prosecution case and the documents regarding date of birth of both the revisionists, held that the accused Kamlakar Dwivedi was aged 17 years, 4 months 18 days and accused Sudhakar Dwivedi was aged 16 years, 6 months 6 days on the date of occurrence namely 7.4.1995. The learned trial court by applying the law laid down in the Constitution Bench case of Pratap Singh Vs. State of Jharkhand (2005) 3 SCC 551 held that in the terms of Juvenile Justice (Care and Protection of Children) Act, 1986 (hereinafter referred to as the Act 1986) age of the offender was to be counted from the date of commission of the offence. In the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act 2000), the legal position remains the same. The revisionists were not held juvenile as they had already crossed the age of 16 years. Thus, the revisionists were not juvenile when the occurrence had taken place in terms of Act 1986. At the commencement of the Act 2000, the revisionists had crossed the age of juvenility. Discussing these things, the learned trial court has also observed that Section 20 of the Act 2000 deals with and extends limited benefit in those cases in which under Act 1986, the accused (male) was over 16 years of age and on 1.4.2001, when the Act 2000 came into force, he was below 18 years of age.
5. The learned trial court by the impugned order has rejected the aforesaid application by which the revisionists claimed themselves to be juvenile on the ground that since the Act 2000 is prospective in operation and it came into force from 1.4.2001, approximately six years after commission of the offence, therefore, the applicants-revisionists herein, were not held entitled to be declared juvenile under Act 2000.
6. It appears from the impugned order that the learned Additional Session Judge before whom the matter was pending, ignored to consider the Amendment Act 2006 and did not consider the question of juvenility at all. The Juvenile Justice Act of 2000 was amended by Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (hereinafter referred to as the Amendment Act 2006). By Amendment Act 2006, Section 7-A was newly inserted and Section 20 was also amended by adding thereto a proviso and an explanation. The newly inserted Section 7-A is reproduced below:-
"7-A. 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 enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(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."
7. Section 20 of the Act is reproduced below:-
"20. Special provision in respect of pending cases- .............
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."
8. On consideration of the provisions of newly added section 7-A, it is crystal clear that the claim of the juvenility can be raised before any court and if the 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 enquiry, take such evidence as may be necessary (but not an affidavit) for the purpose of determining 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. The claim of juvenility can be raised before any court and it shall be recognised at any stage even after final disposal of the case and such claim shall be determined according to provisions contained in this Act and rules made thereunder. Even if the juvenile has ceased to be juvenile on or before the date of commencement of this Amendment Act and if the court finds the person to be juvenile on the date of commission of 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.
9. It may be noted here that first comprehensive legislation dealing with juvenile and juvenile delinquency as applicable in India was the Juvenile Justice (Care and Protection of Children) Act, 1986. Section 2(h) thereof defined a juvenile to mean a boy who had not attained the age of 16 years. This Act of Parliament was later repealed by Act 2000 with effect from 1.4.2001. Under the Act 2000, definition of juvenile has been changed. By virtue of Section 2(k) of the Act 2000, juvenile is defined as a person who has not completed 18 years of age. Thus, in respect of boys the age of juvenility has since been increased from 16 years under the Act 1986 to 18 years under the Act 2000. The Act 2000 was enforced with effect from 1.4.2001 and thereafter on 22.6.2001 the Central Government framed model rules known as Juvenile Justice (Care and Protection of Children) Rules, 2001. These model rules of 2001 were the subject matter of consideration by Constitution Bench in the case of Pratap Singh Vs. The State of Jharkhand since reported in (2005) 3 Supreme Court Cases 551: AIR 2005 SC 2731, wherein the Apex Court held that the Central Government did not have any authority to make those rules and they could not resort to those rule making power under the Clause dealing with power to remove difficulty. The Apex Court was dealing with questions of juvenility and implications of the Juvenile Justice Act of 2000 and repeal of the Act of 1986. Soon after the Constitution Bench judgment in 2005, the Juvenile Justice Act of 2000 was substantially amended. Apart from inserting a new provision, that is, Section 7A and substantially amending Section 20 and Section 68 of the said Act, was also amended by adding a proviso to sub-section (1) thereof, authorizing the Central Government to frame model rules. Thus, the authority of the Central Government, which was found missing in the judgment of the Constitution Bench in the case of Pratap Singh (supra) was cured. It is under this amended provision, which authorized the Central Government to frame model rules, the Central Government has now framed the Juvenile Justice (Care and Protection of Children) Rules, 2007 and enforced with effect from 26.10.2007. Section 68 of the Act 2000 has originally authorized only the State Government to frame Rules to carry out the purposes of the Act, which has now been extended to the Central Government as well. In so far as as Uttar Pradesh is concerned, the Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have been framed vide Notification No. 1202/60-1-2001-1-13(25)-01, dated 31.03.2004, published in the U.P. Gazette, Part 1-Ka, dt. 01.05.2004.
10. It may further be noted that once a finding of juvenility is given in terms of Section 7A, 14 and 49 of the Act 2000, by virtue of Section 49 and in particular sub section (2) thereof, no subsequent proof is at all admissible to deny the benefit of juvenility and declaration once made is final. The procedure for making enquiry has been given in the Central Rules of 2007 and also in the Uttar Pradesh Rules of 2004, there is no need to describe the same in detail. Thus, the courts are not left with no discretion but they can hold an enquiry and give a finding regarding age in the manner prescribed. For the guidance of the subordinate courts, it may be noted that Rule 12 of the Central Rules, 2007 and Rule 22 of the U.P. Rules 2004 prescribe a detailed procedure for holding such kind of enquiries, if the documents namely birth certificate or birth certificate from the school last attended or matriculation or equivalent certificate are not available then only matter shall be referred to the Medical Board for ascertaining the age of such offender. Thus, it is clear that only when the documents as mentioned in the rules aforesaid, are not available and documents if produced and proved, would be conclusive proof of the age leaving no discretion on the Court.
11. It is also crystal clear that once a person is declared to be juvenile, then in terms of Section 49 of the Act that order would be final and in terms of sub section (2) thereof, subsequently no proof can be taken as against it. If the order of the Juvenile Justice Board is against the person claiming to be juvenile or in favour of the juvenile then Section 52 of the Act provides for an appeal to the Court of Session and Section 53 provides for a revision to the High Court.
12. Now I come to the important issue before me in this matter as to applicability of the Juvenile Justice Act 2000 to proceedings pending when the said Act came into force and the consequence of a person being found to be a juvenile in terms of the said Act on the date of occurrence. I may point out that if the date of occurrence is after the enforcement of Juvenile Justice Act 2000, that is 1.4.2001, the provisions are clear. In this situation, if it is found that the person is a juvenile and, hence a juvenile in conflict with law, then the first thing is that by virtue of Section 12 of the Act his bail plea has to be disposed of. In other words, as provided under the said Act, he may or may not be released on bail, but in either of the case he cannot be remanded to the judicial custody. His case has to be placed before the Juvenile Justice Board which can, instead of releasing him make an order sending him to observation home or a place of safety by virtue of Section 12(3) of the Act. Then orders that may be passed in terms of Section 17 may be passed keeping in mind orders by virtue of Section 16 of the Act which may not be passed. However, by virtue of Section 18 of the Act it is prohibited to try a juvenile together with a person who is not juvenile but that trial would also be by and before Juvenile Justice Board and not in any Court of the juvenile in conflict with law.
13. Now I come to the point of applicability of Juvenile Justice Act, 2000 to pending proceedings in cases, that is, offences committed prior to 1.4.2001 in respect of which either enquiry or trial is pending before a competent Court or appellate or revisional proceedings are pending from order of conviction. As noticed above, it is my duty to point out that there has been a substantial change in the statute law in regard to the provisions of the Juvenile Justice Act, 2000. Section 2(1) of the Act defines juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence. Now Sections 7 and 20 to which the proviso and the explanation, as I now find, were not there. It is in this perspective when such a question arose before the Constitution Bench in the case of Pratap Singh (supra) that the Constitution Bench of the Apex Court held in paragraphs 36 and 37, which are as under:-
" 36. We, therefore, hold that the provisions of the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the persons had not completed 18 years of age as on 1.4.2001.
37. The net result is:
(a) The reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in the court.
(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001."
14. The effect of this judgment was that if the person who was charged with committing an offence prior to 01.04.2001 and was found to be a juvenile, that is, under 18 years of age and he had not attained majority as on the date of enforcement of the Juvenile Justice Act of 2000. Section 20 would apply and he would get the benefit of juvenility but notwithstanding the fact that he was a juvenile within the meaning of Juvenile Justice Act of 2000 on the date when the offence was committed prior to that Act but had attained majority by the time the Act came into being and the proceedings were pending he would not get the benefit of the said Act and would not be treated as a juvenile under the said Act.
15. After the pronouncement of the Constitution Bench in the case of Pratap Singh (supra), the above noted Act has been substantially amended altering the very basis of this judgment. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 was enforced on 22.8.2006.
16. What was done by the Amendment Act of 2006 was that Section 2(1) of the Act was amended and now it was provided that the juvenile in conflict with law would mean a juvenile alleged to have committed an offence and had not completed 18 years of age on the date of commission of such offence. New Section 7A was introduced which clearly provided that the claim of juvenility on the date of commission of offence could be raised before any Court, at any stage, even after the disposal of the case. Further Section 20 which is a special provision in respect of pending cases was substantially amended adding a proviso and an explanation thereto. The explanation added to Section 20 made it is clear that it applied to all pending cases including trial, revision or appeal or other criminal proceedings in respect of juvenile in conflict with law in any Court and it further provided that this Section would apply as if the said provisions were in force for all purposes and at all material times when the alleged offence was committed. Thus, there was a clear departure from the law as laid down by the Constitution Bench of the Apex Court in the case of Pratap Singh (supra) which was rendered on 2nd February, 2005.
17. The Hon'ble Apex Court in the case of Hari Ram Vs. State of Rajasthan and another since reported in (2009) 13 Supreme Court Cases 211: AIR 2011 SC (Cri) 2053 in paragraph 37 thereof, it has been held that the said decision in Pratap Singh Case led to the substitution of Section 2(1) and the introduction of Section 7-A 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), 7-A 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 1.4.2001, when the Juvenile Justice Act, 2000, came into force.
18. 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 1.4.2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved.
19. 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.
20. It may be noted that even though drastic amendments were made by the Amendment Act of 2006, new rules were framed being the Central Rules, 2007 still there were several decisions rendered by the Hon'ble Apex Court which would prima facie show the continuance of applying the law as laid down by the Constitution Bench in the case of Pratap Singh (supra). These judgments have been discussed in paragraphs 44 to 49 in Hari Ram's case (supra).
21. Of the decision rendered after the amendments effected in 2006 to the Juvenile Justice Act, 2000, the first decision is that of Jameel case (AIR 2007 SC 971: 2007 Cri. L.J. 1425 rendered on 16.1.2007 wherein the amendments to the Act effected by Amendment Act 33 of 2006, which came into effect on 22.8.2006, were not even noticed.
22. The next decision rendered on 27.5.2008 is in Vimal Chadhu case AIR 2009 SC (Supp) 450 : 2008 Cri.L.J. 3190 wherein, although the amendment of the Act 2006 and introduction of the Juvenile Justice Rules, 2007 were brought to the notice of the Court, the same could not be considered and the decision was rendered in the light of the decision in Pratap Singh case and other cases decided prior to 1.4.2001.
23. Likewise the decision in Ranjit Singh case, AIR 2009 SC (Supp) 946 : (2008) 9 SCC 453, wherein the aforesaid amendments in Rules 2007 had not been considered and the decision passed sub silentio on 11.9.2008.
24. Similar was the situation in Babloo Pasi case (2008) 13 SCC 133 : AIR 2009 SC 314 decided on 3.10.2008. The Hon'ble Apex Court did not have occasion to consider the amendments effected to the Juvenile Justice Act 2000, by the Amendment Act, 33 of 2006 which had just come into force on 22.8.2006.
25. None of the aforesaid decisions are of much assistance in deciding the question regarding applicability of the definition of "juvenile". In Section 2(k) and 2(1) of the Juvenile Justice Act 2000 as amended in 2006, whereby the provisions of the said Act were extended to cover juveniles who had not completed 18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on 1.4.2001.
26. Thus, from the judgment in Hari Ram's case (supra), it is quite clear that after the amendment to the Juvenile Justice Act 2000 by the Amendment Act of 2006, the situation as emanating in the case of Pratap Singh (supra) underwent a complete change. The effect is that once a person is found to be a juvenile in conflict with law as defined by Section 12(1) of the Juvenile Justice Act 2000, then irrespective of his age at the time when this matter is considered in any pending proceeding when the Act came into force, he would continue to be treated as juvenile in conflict with law and be entitled to the benefits in relation thereto.
27. Now the Hon'ble Apex Court has consistently taken note of the amendment and the judgment rendered in the case of Hari Ram (supra) and extended the benefit to persons who are found to be juvenile in conflict with law for an offence committed prior to the enforcement of the Juvenile Justice Act 2000 irrespective of their age when such determination is made after coming into force of the Juvenile Justice Act 2000. I may only refer to some of the cases being Dharambir Vs. State (NCT of Delhi) and another since reported in (2010) 5 SCC 344 : (AIR 2010 SC 1801 : 2010 Cri. L.J. 2852), Daya Nand Vs. State of Haryana since reported in (2011) 2 SCC 224 : (AIR 2011 SC 593 : 2011 Cri.L.J. 1157) and Lakhan Lal Vs. State of Bihar with analogous cases since reported in (2011) 2 SCC 251 : (AIR 2011 SC 842 : 2011 Cri. L.J. 1116.
28. The Hon'ble Apex Court in the case of Bhim alias Uttam Ghosh Vs. State of West Bengal, (2010) 14 Supreme Court Cases, 571 reiterating the same stand as taken in the case of Hari Ram (supra) in paragraph 15 thereof observed as under:-
"15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the 2000 Act, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the 2000 Act and were undergoing sentences upon being convicted."
29. In the aforesaid judgment, the claim of juvenility was raised by the appellant in a case pending under 1986 Act. The appellant was about 15 years old at the time of commission of the offence under Section 307 I.P.C. After conviction and sentence, he was declared juvenile and at the time of declaration as juvenile, he was aged about 42 years. The Hon'ble Apex Court in paragraphs 17 and 18 of the judgment has observed as follows:
" 17. Having held so, the next question for consideration is as to what order of sentence is to be passed against the appellant, who stands convicted for offence punishable under Section 307 IPC, correctness whereof is not put in issue before us. The appellant is now aged about 42 years. Keeping his age in view, we feel 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.
18. Accordingly, while sustaining the conviction of the appellant, we quash the sentence awarded to him and direct his release forthwith, if not required in any other case. The appeal succeeds partly, to the extent indicated above."
30. Now I come to the impugned order dated 10.2.2010 passed by the Additional Session Judge, who at page 3 of the impugned order has observed that in the present case it is not disputed that on 7.4.1995 age of the applicants Kamlakar and Sudhakar was 17 years 4 months 18 days and 16 years 6 months 6 days respectively. Thus, factual position is settled. On this basis, the learned Additional Session Judge has held that since the applicants, revisionists herein, have crossed the age of 18 years on the date of enforcement of the Act 2000 namely 1.4.2001, the revisionists in the light of the Constitution Bench case of Pratap Singh (supra) had crossed the age of juvenility namely 18 years, they cannot be declared as juvenile. The learned Additional Session Judge misunderstood the relevant provisions in this regard and wrongly held that the revisionists were not juvenile either on 7.4.1995 or 1.4.2001 as they were above 16 years of age on the date of occurrence. The impugned order has been passed on the basis of Act 2000 without considering the Amendment Act 2006 holding the same as prospective in application. The impugned order suffers from error of law and cannot be allowed to be sustained in view of the above discussions. The wrong interpretation of law has been made by the learned Additional Session Judge in the impugned order. The impugned order dated 10.2.2010 passed by the Additional Session Judge, Court No. 1, Allahabad is hereby quashed. The revision is accordingly allowed. The revisionists are declared juvenile in view of the Amendment Act 2006.
31. Let a copy of this judgment be sent to the court concerned to proceed further in the light of the observations made in this judgment.
Date :- 1.6.2012 Rmk.