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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 ..... ian Penal Code, 1860 ('IPC for short) and the order of sentence directing them to undergo imprisonment for life. 2. By order dated 02.05.2019 leave was granted in the case of Satya Deo. 3. By order dated 22.11.2019 the trial court was directed to conduct an inquiry to ascertain if Satya Deo was a juvenile on the date of occurrence i.e. 11.12.1981, on the basis of material which would be placed on record. 4. Pursuant to the directions, the First Additional District and Sessions Judge, Bahraich, Uttar Pradesh has conducted an inquiry and submitted the report dated 06.03.2020. As per the report, the date of birth of Satya Deo is 15.4.1965. Accordingly, he was 16 years 7 months and 26 days of age on the date of commission of the offence i.e. 11.12.1981. The report relies on the Transfer Certificate (in original) issued by Ram Narayan Singh Inter College, Ramnagar Khajuri, Bahraich, and the Admission Register of Primary School, Pairi, which documents were proved by Sh. Krishn Deo, Clerk at Ram Narayan Singh Inter College, Ramnagar Khajuri, Bahraich, and Smt. Anupam Singh, in-charge head-mistress of Primary School, Pairi, respectively. Further, Satya Deo had appeared in class-10 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion, it was held that 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 a court. Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act. 10. Subsequent to the decision of the Constitution Bench in Pratap Singh (supra), several amendments were made to the 2000 Act by the Amendment Act No. 33 of 2006. These amendments are significant, but first we will begin by referring to Section 2(l) of the 2000 Act which defines "juvenile in conflict with law" as: (l) "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. In terms of Clause (l) to Section 2 of the 2000 Act, Satya Deo, being less than 18 years of age, was juvenile on the date of commission of offence. 11. Section 20 of the 2000 Act, which provides a special provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any adequate and special reasons, can review the case and pass appropriate order in the interest of the juvenile. Explanation added to Section 20 vide Act 33 of 2006, which again is of significant importance, states that the court where 'the proceedings' are pending 'at any stage' shall determine the question of juvenility of the Accused. The expression 'all pending cases' includes not only trial but even subsequent proceedings by way of appeal, revision etc. or any other criminal proceedings. Lastly, 2000 Act applies even to cases where the Accused was a juvenile on the date of commission of the offence, but had ceased to be a juvenile on or before the date of commencement of the 2000 Act. In even such cases, provisions of the 2000 Act are to apply as if these provisions were in force for all purposes and at all material time when the offence was committed. Thus, in respect of pending cases, Section 20 authoritatively commands that the court must at any stage, even post the judgment by the trial court when the matter is pending in appeal, revision or otherwise, consider and decide upon the question of juvenility. Juvenility is determined by the age on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 64 of the 2000 Act was also amended by Act No. 33 of 2006 by incorporating a proviso and explanation and by replacing the words 'may direct' with the words 'shall direct' in the main provision. Post the amendment, Section 64 reads as under: 64. Juvenile in conflict with law undergoing sentence at commencement of this Act- In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any 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 in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care Under Sub-section (2) of Section 16 of this Act. Provided that the State Government, or as the case may be the board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be deemed to be decided in terms of Clause (l) to Section 2 and other provisions and Rules made under the 2000 Act irrespective of the fact that the juvenile had ceased to be a juvenile. Such juvenile shall be sent to special home or fit institution for the remainder period of his sentence but such sentence shall not exceed the maximum period provided in Section 15 of the 2000 Act. The statute overrules and modifies the sentence awarded, even in decided cases. 14. This Court in Dharambir v. State (NCT of Delhi) and Anr. (2010) 5 SCC 344 had analysed the scheme and application of the 2000 Act to the Accused who were below the age of eighteen years on the date of commission of offence which was committed prior to the enactment of the 2000 Act, to opine and hold: 14. Proviso to Sub-section (1) of Section 7-A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e boy had crossed 16 years or the 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. 19. In Bijender Singh v. State of Haryana [Bijender Singh v. State of Haryana, (2005) 3 SCC 685: 2005 SCC (Cri) 889], the legal position as regards Section 20 was stated in the following words: (SCC pp. 687-88, paras 8-10 & 12): 8. One of the basic distinctions between the 1986 Act and the 2000 Act relates to the age of males and females. Under the 1986 Act, a juvenile means a male juvenile who has not attained the age of 16 years, and a female juvenile who has not attained the age of 18 years. In the 2000 Act, the distinction between male and female juveniles on the basis of age has not been maintained. The age-limit is 18 years for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nile" 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 2000 Act. 21. Similarly in Kalu v. State of Haryana [Kalu v. State of Haryana, (2012) 8 SCC 34: (2012) 3 SCC (Cri) 761] this Court summed up as under: (SCC p. 41, para 21) 21. Section 20 makes a special provision in respect of pending cases. It states that notwithstanding anything contained in the Juvenile Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which the Juvenile Act comes into force in that area shall be continued in that court as if the Juvenile 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 juv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a juvenile and be given benefit as per the 2000 Act. 18. This brings us to the question whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide Sub-section (1) to Section 111 repeals the 2000 Act, albeit Sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act. Section 69 'Repeal and saving clause' of 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. However, what is important and relevant for us is Section 25 of the 2015 Act which, as per the headnote to that Section, incorporates 'special provision in respect of pending cases' and reads: Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich cannot be proceedings pending before a civil court. Since the Act of 2015 protects and affirms the application of the 2000 Act to all pending proceedings, we do not read that the legislative intent of the 2015 Act is to the contrary, that is, to apply the 2015 Act to all pending proceedings. Section 6 of the General Clauses Act, 1897 that provides the consequence of "repeal" of an enactment reads: 6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: xxx (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; Consequently, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P., (2013) 11 SCC 193 : (2013) 4 SCC (Cri) 725] in the following terms: (SCC pp. 210-11, para 32) 32. A perusal of the "punishments" provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the Appellant, advising or admonishing him [Clause (a)] is hardly a "punishment" that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to expect the Appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [Clause (b)]. For the same reason, the Appellant cannot be released on probation of good conduct under the care of a fit institution [Clause (c)] nor can he be sent to a special home Under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [Clause (d)]. The only realistic punishment that can possibly be awarded to the Appellant on the facts of this case is to require him to pay a fine under Clause (e) of Section 21(1) of the Juvenile Justice Act, 1986. 21. Following the aforesaid ratio and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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