IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO. No. 148 of 2010. Date of Decision:20.9.2010. _______________________________________________ Harjinder Singh ….petitioner. Versus Ram Gopal …Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the petitioner. :Mr. Sanjeev Kuthiala, Advocate. For Respondent. Mr. Dalip Kumar Sharma, Advocate. Dev Darshan Sud, J.(Oral). The petitioner challenges the order passed by the learned Sessions Judge, Solan rejecting his application under Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ‘Act’). The prayer of the applicant in the application was that an inquiry be held regarding the age as he was a juvenile on the date of the commission of the offence and he was to be tried in consonance with the provisions of the ‘Act’ and not by way of a regular trial. It is further alleged that the petitioner was born on 2.8.1987 and on the date i.e. 17.3.2004 when the offence under Section 138 of the Negotiable Instruments Act was committed, he was under the age of 18 years. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 2. The learned trial Court, on the interpretation of Section 20 of the ‘Act’ held that the protection was not available to him. The Court further holds that in his statement which is recorded before the learned trial Court, he has himself disclosed his age to be about 22 years which shows that he was more than 18 years at the time when the offence was committed. Secondly, the applicant did not file any application before the trial Court during the trial and even during the pendency of the appeal to urge this fact. 3. This petition was resisted by the respondent on number of grounds which will be considered hereinafter. 4. Adverting to the finding of the learned Court that the protection of the ‘Act’ is not available to the petitioner, the learned trial Court is completely wrong. In Dharambir Vs. State (NCT of Delhi) and another, (2010) 5 S.C.C 344, considering the provisions of the Act, the Supreme Court holds: “7. Before adverting to the question, we may note that the issue with regard to the date, relevant for determining the applicability of either of the two Acts, insofar as the age of the accused, who claims to be a juvenile/child, is concerned, is no longer res integra. On account of divergence of views on the point in Umesh Chandra Vs. State of Rajasthan,(1982) 2 SCC 202 and Arnit Das Vs. State of Bihar, (2000) 5 SCC 488 the matter was referred to the Constitution Bench in Pratap Singh Vs. State of Jharkhand & Anr. (2005) 3 SCC 551.Affirming the view taken by a Bench of three Judges in Umesh Chandra's case (supra), the Constitution Bench held that the relevant date for determining the age of the accused, who claims to be a juvenile/child, would be the date on which the offence has been committed and not the date when he is produced before the authority or in the court. 8. In the same judgment, the Bench also dealt with the question as to whether the Act of 2000 will be applicable in a case where proceedings were initiated under the 1986 Act and were pending when the Act of 2000 was enacted with effect from 1st April, 2001. Taking into consideration the provisions of Sections 3 and 20 along with the definition of "juvenile" in Section 2(k) of the Act of 2000, as contrasted with the 3 definition of a male juvenile in Section 2(h) of the 1986 Act, by majority, it was held that the Act of 2000 would be applicable in a pending proceeding in any Court/Authority initiated under the 1986 Act and is pending when the Act of 2000 came into force and the person concerned had not completed 18 years of age as on 1st April, 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 had not completed the age of 18 years as on 1st April, 2001, would be governed by the provisions of the Act of 2000. 9. The decision in Pratap Singh's case (supra) led to substitution of Section 2(l); the insertion of Section 7A and Proviso and Explanation to Section 20 of the Act of 2000 by Act No.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 determination of age of a child or a juvenile. 10. Section 20 of the Act of 2000, 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." 11. 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 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 1st April, 2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all 4 purposes and for all material times when the alleged offence was committed. 12. Clause (l) of Section 2 of the Act of 2000 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 Act of 2000. 13. At this juncture, it will be profitable to take note of Section 7A, inserted in the Act of 2000 with effect from 22nd August, 2006. It reads as follows: "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 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 recognized 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." 14. Proviso to sub-section (1) of Section 7A contemplates that a claim of juvenility can be raised before any court and has to be recognized 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 there under, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000.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 Act of 2000 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. 5 15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7A, 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 1st April, 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 Vs. State of Rajasthan & Another,( 2009) 13 SCC 211” (PP 346,347 & 348) 5. This judgment settles the controversy once and for all. 6. Learned counsel appearing for the respondent submits that this Court cannot interfere in the well reasoned order of the learned trial Court. He refers to the judgment of the Supreme Court in Jyotish Prakash Rai alias Jyoti Prakash Vs. State of Bihar, 2008 15 SCC 223. In particular, learned counsel refers to the decision holding: “12 The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on record by the parties. In the absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant. 13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical 6 scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu Vs. State of Maharashtra, (2006) 1 SCC 283 opined: “20. It is urged before us by Mr.Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact”. In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side.” (PP 228 & 229) 7. Learned counsel also relies upon the decision in Vishnu alias Undrya Vs. State of Maharashtra, (2006) 1 SCC 283 to urge that the date of birth of a person cannot be considered as being authentic on the basis of unproved record. Authentic evidence is required to be produced to show and establish the date of birth. In both these judgments, cited by the learned counsel for the respondent, the question was one of determination of the age, I am not pronouncing on that aspect of the matter as an inquiry under Section 7 of the ‘Act’ envisages that the age be determined in accordance with the established principles of law and evidence on record. 8. The learned appellate Court has committed an error of law in holding that the amended provisions do not 7 govern pending cases. This controversy has now been set at rest by the Supreme Court in Dharamvir’s case (supra). On the question of determination of the age, in Jaber Singh Vs. Dinesh and another, (2010) 3 SCC 757, the Court holds: “12 Mr.Kartikay further submitted that under Section 49 of the Act it is only the competent authority which has the jurisdiction to make due enquiry as to the age of a person brought before it and the competent authority in the present case is the Juvenile Justice Board and it is for the Juvenile Justice Board and not the court to determine the age of respondent 1. 13. Section 49(1) of the Act is quoted hereinbelow: “49. Presumption and determination of age-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.” The opening words of sub-section (1) of Section 49, quoted above, show that only when a person is “brought before the competent authority” under any of the provisions of the Act, the competent authority is required to make due enquiry as to the age of that person and for that purpose take such evidence as may be necessary and record a finding whether the person is a juvenile or not. Section 49 is, therefore, attracted when a person is brought before the competent authority and not otherwise. 14. In the present case, respondent 1 was not brought before the competent authority, namely, the Juvenile Justice Board. Hence, Section 49 was not attracted and the competent authority had no jurisdiction to make enquiry as to the age of respondent 1 as provided under sub-section (1) of Section 49. In fact, respondent 1 was before the trial court when he filed an application claiming juvenility and it was, therefore, for the trial court to 8 make an enquiry and take such evidence as may be necessary to determine the age of respondent 1 and decide upon his claim of juvenility. 15. Section 49 of the Act contains no provision prohibiting the court before which a claim of juvenility is raised, to determine the age of the person before the court. The trial Court, therefore, had the jurisdiction to inquire into the age of respondent 1 and for that purpose take such evidence as may be necessary and record a finding whether respondent 1 was a juvenile or not at the time of commission of the offence. 16…………………………………………….. 17……………………………………………. 18. This Court has held in Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584 that in case of a dispute with regard to the age of the person who is alleged to have committed the offence, the Court has to appreciate the evidence having regard to the facts and circumstances of the case and it will be the duty of the court to accord the benefit to a juvenile, provided he is found to be a juvenile and not to give the same benefit to a person who, in fact, is not a juvenile and case injustice to the victim. 19.Again, in Jyoti Prakash Rai Vs. State of Bihar, (2008) 15 SCC 223, this Court has held that in the absence of any evidence which is relevant under Section 35 of the Evidence Act, the age of a person who has committed the offence must be determined keeping in view the factual matrix involved in each case.” (PP 761 & 762) 9. In these circumstances, order Annexure:P-5 is quashed and set aside. A direction is issued to the learned Court that the age of the petitioner herein shall be determined afresh in accordance with law. If it is found that he is a juvenile on the date of the commission of the offence, obviously he will be entitled to the protection of Juvenile 9 Justice Act. The petition is disposed of. There shall be no order as to costs. (Dev Darshan Sud), Judge. September 20,2010(R)