Singh Vs. State of Haryana and Anr  Insc 197 (28 March 2005)
Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 4812 of 2003) ARIJIT PASAYAT, J.
only point involved in this case is whether the respondent No. 2, who was
admittedly more than 16 years of age on 17.11.1999 when he purportedly
committed offences punishable under Sections 302, 364, 201 read with Sections
34 and 120B of the Indian Penal Code, 1860(in short the 'IPC') would be given
the benefits of Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as the '2000 Act') and would not be governed by the
Juvenile Justice Act 1986 (in short the '1986 Act').
position is undisputed and is essentially as follows:
information report was lodged on 20.11.1999 alleging commission of the
aforesaid offences on 17.11.1999. Charge sheet was filed and charges were
framed. After filing of the charge sheet respondent No.2-Accused Sandeep made
an application to the Court of Chief Judicial Magistrate, Bhiwani praying that
he should be considered to be a juvenile under the 2000 Act. Since on the date
of commission of offence, 1986 Act was in force and according to its provision
the accused was not juvenile being above sixteen years of age, the application
was dismissed. However, learned Sessions Judge Bhiwani reversed the order and
extended benefit of 2000 Act to the accused.
filed a revision application before the Punjab and Haryana High Court, which by the impugned order was rejected.
to learned counsel for the appellant it is the date of commission of the
offence which is relevant and admittedly since the date of birth of the
respondent No.2 accused is 16.3.1982, he was seventeen years and eight months
of age at the time of commission of offence, i.e. he was above sixteen years.
The 2000 Act is operative from 01.04.2001 and has no relevance so far as the
present appeal is concerned.
counsel for the respondent on the other hand referred to Section 64 of the 2000
Act to contend that a person who is in the prison is given certain benefits and
the same cannot be denied to a person who is yet to face the trial.
Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and Anr. (JT 2005(2) SC 271) had
occasion to deal with the matter relating to area of operation of the 1986 Act
and 2000 Act.
noticing a few relevant aspects which were noted in Pratap Singh's case
(supra), the dispute in the present case can be effectively adjudicated.
salient features of the 2000 Act may be noticed at the outset. Section 1(3) of
the said Act states that it would come into force on such date as the Central
Government may, by notification in the Official Gazette, appoint. The Central
Government had issued an appropriate notification in terms whereof; 1.4.2001
has been specified as the 'appointed date' from which the provisions of the
said Act will come into force. The Act, thus, is prospective in its operation.
the 2000 Act has repealed the Act of 1986. It has obliterated the distinction
between juvenile of different sex by reason whereof, a male juvenile would also
be juvenile if he has not crossed the age of 18.
the basic distinctions between 1986 Act and 2000 Act relates to 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 both male and female.
person above 16 years in terms of the 1986 Act was not a juvenile. In that view
of the matter the question whether a person above 16 years becomes 'juvenile'
within the purview of 2000 Act must be answered having regard to the object and
terms of the 1986 Act, a person who was not juvenile could be tried in any
court. Section 20 of 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. (See Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and
Ors. (JT 2002 (10) SC 55), ITW Signode India Ltd. v. Collector of Central
Excise (JT 2004 (6) SC 456) and Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. (JT 2004 (1) SC 289).
interpreting a provision creating a legal fiction, the Court has to ascertain
for what purpose the fiction is created. (See Ex Parte, Walton. In re. Levy
(1881) 17 Ch.D.746). After ascertaining the purpose the Court has to assume all
those facts and consequences which are incidental or inevitable corollaries for
giving effect to the fiction. (See East End Dwelling Co. Ltd. v. Finsbury
Borough Council (1951) 2 All E.R. 587, Chief Inspector of Mines v. Karam Chand Thapar
(AIR 1961 SC 838). But in so construing the fiction it is not to be extended
beyond the purpose for which it is created, or beyond the language of the
provision by which it is created. (See State of Maharashtra v. Laljit Rajshi Shah and Ors. (2000 (2) SCC 699), In re. Coal
Economising Gas Company (1875) 1 Ch.D. 182) and Hill v. East and West Dock. Co. (1884) 9 A.C. 448 (HL).
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 the 2000 Act for the said limited
20 of the 2000 Act would, therefore, be applicable when a person is below the
age of 18 years as on 1.4.2001. For the purpose of attracting Section 20 of the
said Act, it must 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. For the purpose of the said Act, both the
aforementioned conditions are required to be fulfilled. By reason of the
provisions of the 2000 Act, the protection granted to a juvenile has only been
extended but such extension is not absolute but only a limited one. It would
apply strictly when the conditions precedent therefor as contained in Section
20 or Section 64 are fulfilled.
embargo of giving a retrospective effect to a statute arises only when it takes
away vested right of a person. By reasons of Section 20 of 2000 Act no vested
right in a person has been taken away, but thereby only an additional
protection had been provided to a juvenile.
of 2000 Act would be applicable to those cases initiated and pending
trial/inquiry for the offences committed under 1986 Act provided that the
person had not completed 18 years of age as on 1.4.2001. In the instant case
undisputedly the respondent No.2 accused had completed 18 years of age before
Constitution Bench in Pratap Singh's case (supra) has held as under:
In terms of the 1986 Act, the age of the offender must be reckoned from the
date when the alleged offence was committed.
The 2000 Act will have a limited application in the cases pending under the
court would be entitled to apply the ordinary rules of evidence for the purpose
of determining the age of the juvenile taking into consideration the provisions
of Section 35 of the Indian Evidence Act, 1872 as the model rules framed by the
Central Government have no statutory force."
that view of the matter, the trial court has to deal with the case of the
respondent no. 2- accused keeping in view the law laid down by the Constitution
Bench in Pratap Singh's case (supra).
appeal is disposed of accordingly.