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TMI Blog2020 (10) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2000 Act is identical as Sub-section (1) thereof had repealed the 1986 Act and Sub-section (2) provides that notwithstanding such repeal anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act. In light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an Accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced. While upholding the conviction of Satya Deo, the sentence of life imprisonment set aside - matter remanded to the jurisdiction of the Board for passing appropriate order/directions Under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had died and consequently notice was served on the heirs of the complainant, who did not appear before the First Additional District and Sessions Judge, Bahraich. The prosecution had not led any evidence. 6. The date of birth of Satya Deo is undisputed and not challenged before us. 7. Notwithstanding this finding, the First Additional District and Sessions Judge, Bahraich has observed that Satya Deo was not a juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16 year of age on the date of commission of the offence i.e. 11.12.1981. 8. The conundrum is in light of the definition of 'juvenile' under the 1986 Act, which was below sixteen years in case of a boy and below eighteen years in case of a girl on the date the boy or girl is brought for first appearance before the court or the competent authority, whereas the 2000 Act, as noticed below, does not distinguish between a boy or girl and a person under the age of eighteen years is a juvenile. Further, under the 2000 Act, the age on the date of commission of the offence is the determining factor. 9. In light of the conflicting views expressed by this Court on application of the 2000 Act to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.--In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause (l) of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was juvenile, the court would, even when maintaining conviction, send the case to the Board to issue direction and order in accordance with the provisions of the 2000 Act. 12. By the amendment Act No. 33 of 2006, Section 7-A was inserted in the 2000 Act setting-out the procedure to be followed by the court to determine the claim of juvenility. Section 7A, which came into effect on 22.08.2006, reads: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of Clause (l) of Section 2 and other provisions contained in this act and the Rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in Section 15 of this act. Substitution of the words 'may direct' with 'shall direct' in the main provision is to clarify that the provision is mandatory and not directory. Section 64 has to be read harmoniously with the newly added proviso and explanation and also other amendments made vide Act 33 of 2006 in Section 20 and by way of inserting Section 7A in the 2000 Act. The main provision states that where a juvenile in conflict with law is undergoing any sentence of imprisonment at the commencement of the 2000 Act, he shall, in lieu of undergoing the sentence, be sent to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(k) of the said Act, which defines juvenile or child to mean a person who has not completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act. 15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, 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 even prior to 1-4-2001 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 Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan [(2009) 13 SCC 211: (2010) 1 SCC (Cri) 987]. 15. In Mumtaz v. State of U.P. (2016) 11 SCC 786, while referring to several earlier decisions, this Court dealt with effect of Section 20 of the 2000 Act and its inter-play with the 1986 Act, to elucidate: 18. The effect of Section 20 of the 2000 Act was considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the object and purport thereof. 10. In terms of the 1986 Act, a person who was not juvenile could be tried in any court. Section 20 of the 2000 Act takes care of such a situation stating that despite the same the trial shall continue in that court as if that Act has not been passed and in the event, he is found to be guilty of commission of an offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Juvenile Justice Board (in short the Board ) which shall pass orders in accordance with the provisions of the Act as if it has been satisfied on inquiry that a juvenile has committed the offence. A legal fiction has, thus, been created in the said provision. A legal fiction as is well known must be given its full effect although it has its limitations. ... 11.*** 12. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 makes it 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 (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, when the Juvenile Act came into force, and the provisions of the Juvenile 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. 16. This position of law and principle was affirmed by this Court for the first time in Hari Ram v. State of Rajasthan (2009) 13 SCC 211 in the following words: 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 (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 2015 Act reads - 'a person who has not completed eighteen years of age'.) alleged or found to be in conflict with law pending before any Board or court on the date of commencement of the 2015 Act, that is, 31st December 2015. It states that the pending proceedings shall be continued in that Board or court as if the 2015 Act had not been passed. In Akhtari Bi v. State of M.P. (2001) 4 SCC 355, it was observed that the right to appeal being a statutory right, the trial court's verdict does not attain finality during the pendency of the appeal and for that purpose the trial is deemed to be continuing despite conviction. Thus, the use of the word 'any' before the board or court in Section 25 of the 2015 Act, would mean and include any court including the appellate court or a court before which the revision petition is pending. This is also apparent from the use of the words 'a child alleged or found to be in conflict with law'. The word 'found' is used in past-tense and would apply in cases where an order/judgment has been passed. The word 'alleged' would refer to those proceedings where no final order has been passed and the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before the enactment of the 2015 Act but the charge-sheet was filed after enactment of the 2015 Act. The answer would require examination of Clause (1) to Article 20 of the Constitution and several other aspects as the 2015 Act provide an entirely different regime in respect of children in conflict with law and the procedure to be followed in such cases. These aspects and issues have not been argued before us.) 19. Decision of this Court in Gaurav Kumar @ Monu v. State of Haryana (2019) 4 SCC 549, which was relied upon by the learned Counsel for the state is of no avail as this decision is on interpretation and application of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, for the procedure to be followed in determination of age. The procedure adopted by the learned District and Sessions Judge is not challenged and questioned before us. We would again record that Satya Deo was less than 18 years of age on the date of commission of offence and this remains undisputed and unchallenged. 20. Satya Deo has undergone incarceration for more than 2 years thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum and nature of punishment which should be g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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