Bhim Uttam Ghosh Vs
State of West Bengal
ORDER
D.K. JAIN, J.:
1.
Leave
granted.
2.
Challenge
in this appeal, by special leave, is to the judgment, dated 1st December 2009,
delivered by the High Court of Calcutta in C.R.A. No. 77 of 1986, upholding the
conviction of the appellant for an offence punishable under Section 307 of the
Indian Penal Code, 1860 (for short "IPC").
3.
Since
learned counsel for the appellant has addressed us only on the question of
applicability of the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (for short "the 2000 Act") to the facts of the
case, we deem it unnecessary to state the facts, leading to the filing of this
appeal, except to the extent that the incident, resulting in injuries to the
victim took place on 6th March 1983. The first information report (for short
"the FIR") was lodged and registered on 21st March, 1983 against the
appellant and four other persons. Charge sheet was filed on 13th June 1983
against all the accused; who were tried for offences under Sections 306 and 148
of the IPC and ultimately, vide judgment dated 22nd February 1986, the Additional
Sessions Judge, convicted the appellant for an offence punishable under Section
307 of the IPC and acquitted the other four accused. The appellant was
sentenced to undergo rigorous imprisonment for a period of five years and to
pay a fine of Rs.500/- with default stipulation.
4.
Aggrieved
by the order of conviction, the appellant carried the matter in appeal before
the High Court. As afore-stated, the High Court, vide the impugned judgment has
dismissed the appeal.
5.
Hence,
the present appeal.
6.
Vide
order dated 22nd October 2010, this Court had directed the respondent-State to
make inquiry so as to determine the age of the appellant. Pursuant thereto,
affidavit dated 9th November 2010, has been filed by a Sub-Inspector of Police,
Birbhum (West Bengal), on behalf of the State, stating that as per the records
available with the Board of Secondary Education (West Bengal), the date of
birth of the accused is 4th January 1968, which shows that the age of the
appellant as on the date of commission of offence i.e. 6th March 1983, was 15 years,
2 months and 2 days.
7.
We
have heard learned counsel for the parties.
8.
It
is well settled that the date relevant for determining the age of the accused,
who claims to be a juvenile/child would be the date on which the offence had
been committed and not the date on which he is produced before the competent
authority or in the court. (See: Pratap Singh Vs. State of Jharkhand &
Anr.1 and Ravinder Singh Gorkhi Vs. State of U.P.2)
9.
In
Pratap Singh's case (supra), the Constitution Bench also dealt with the
question as to whether the 2000 Act will be applicable in a case where criminal
proceedings were initiated when the Juvenile Justice Act, 1986 (for short
"the 1986 Act") was in force. Taking into consideration the
provisions of Sections 3 and 20 along with the definition of the term
"juvenile" in Section 2(k) of the 2000 Act, as contrasted with the
definition of a "male juvenile" in Section 2(h) of the 1986 Act, by
majority, it was held that the 2000 Act would be applicable in a proceeding
pending in any court/authority initiated under the 1986 Act and which was
pending when the 2000 Act came into force and the person concerned had not
completed 18 years of age as on 1-4-2001. In other words, it was held that a
male offender, against whom proceedings had been initiated under the 1986 Act
in any court/authority and who had not completed the age of 18 years as on
1-4-2001, would be governed by the provisions of the 2000 Act.
10.
The
decision in Pratap Singh's case (supra) led to substitution of Section 2(l);
the insertion of Section 7A and proviso and the Explanation to Section 20 of
the 2000 Act by Act 33 of 2006 as also introduction of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 containing Rule 12, which lays
down the procedure to be followed in determining the age of a child or a
juvenile.
11.
Section
20 of the 2000 Act, the pivotal provision, as amended, reads as follows: "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 (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."
12.
It
is plain from the language of the Explanation to Section 20 that in all pending
cases, which would include not only trials but even subsequent proceedings by
way of revision or appeal, etc., the 5 determination of juvenility of a juvenile
has to be in terms of clause (l) of Section 2, even if the juvenile ceases to
be a juvenile on or before 1-4-2001, when the 2000 Act came into force, and the
provisions of the said 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.
13.
Clause
(l) of Section 2 of the 2000 Act provides that "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. 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.
14.
At
this juncture, it will be profitable to take note of Section 7A, inserted in
the 2000 Act with effect from 22-8-2006. It 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 6 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 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 there under,
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 orders, and the sentence, if any, passed
by a court shall be deemed to have no effect."
15.
Proviso
to sub-section (1) of Section 7A 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 2000 Act and the Rules framed there under, even
if the juvenile has ceased to be so on or before the date of the commencement
of the said Act. The effect of the proviso is that a juvenile who had not
completed eighteen years of age on the date of commission of the offence would
also be entitled to the benefit of the 2000 Act as if the provisions of 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.
16.
It
is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7A, 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.
17.
In
the instant case, according to the report submitted on behalf of the State, the
appellant was about 15 years old at the time of the commission of the offence.
The correctness of the report is not in question and, therefore, in light of
the afore-stated legal position, the appellant has to be held to be a juvenile,
within the meaning of Section 2(l) of the amended 2000 Act, and is to be
governed by the provisions of the said Act.
18.
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.
19.
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.
............................................
(D.K. JAIN, J.)
.............................................
(H.L. DATTU, J.)
NEW
DELHI;
NOVEMBER
12, 2010
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