IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.771 of 2008 Ranjeet Kumar Jha, Son of Sushil Kumar Jha, resident of Village- Parasi, P.S.-Bangon, District-Saharsa. -Appellant. VERSUS The State of Bihar -Respondent. ================================================ Appearance : For the Appellant : Mr. G.P. Jaiswal, Sr. Adv. For the Respondent : Mr. Ashwani Kumar Sinha, A.P.P. ================================================ CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH AND HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Having heard Shri G.P. Jaiswal, learned Senior Counsel, amicus curiae, at our request in support of the appeal and Shri Ashwani Kumar Sinha, learned Additional Public Prosecutor, we propose to dispose of this appeal at this stage itself. For the reasons in detail recorded in our order dated 04.08.2011 briefly stated when the appeal was listed before us for consideration of the handwritten application sent by the appellant praying for bail stating that though he was literate he was unable to engage any counsel being poor and his earlier bail applications to this Court had already been rejected several times, we found to our shock and dismay that the trial Court in its judgment under appeal had found the appellant to be about 28 years of age which would have made him about 16 years at the time when the alleged occurrence took place for which he was sentenced to life imprisonment. We became curious and anxious in this regard. What shocked us more was Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 2 that the appellant had raised the plea of juvenility in the trial Court itself and even though the trial Court found the appellant to be 16 years 5 months and 27 days old on the date of occurrence, that is, 09.08.1996, it rejected the claim and proceeded to deliver judgment ignoring the evidence on record as if the plea was never raised. The result was that though the appellant was undisputedly a juvenile in conflict with law by the judgment under appeal dated 28.06.2008, he was sentenced to life imprisonment for an offence under Sections 302 and 201 of the Indian Penal Code. Noticing this and the fact that the appellant himself had written to this Court that he is not in a position to engage a Lawyer to defend him, on our request Shri G.P. Jaiswal, learned Senior Counsel agreed to assist the Court and after hearing the learned Senior Counsel and the Additional Public Prosecutor and examining the records we reserved the case for order and are now disposing the appeal itself. Saharsa P.S. Case No.360 of 1996 (G.R. Case No.953 of 1996) was registered for offences under Sections-302 & 201 of the Indian Penal Code as against the appellant charging the appellant of committing murder and causing the disappearance of the dead body of the deceased on 09.08.1996. After submission of chargesheet and committal of the case to the Court of Sessions, Sessions Trial No. 68 of 1997 was registered in the Court of Additional District Judge, F.T.C.-II, Saharsa. It appears from the records that the appellant was also facing another prosecution arising out of Bangwan P.S. Case No.57 of 1996 (G.R. Case No.647 of 1996) for, allegedly, committing another murder on 05.06.1996, for which Sessions Trial No.210 of 2003 was pending before the Sessions Judge, Saharsa. Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 3 It appears that in course of the proceedings of this second Sessions Trial No.210 of 2003, as before the Sessions Judge, Saharsa, a plea was raised on behalf of this appellant on the basis of his matriculation certificate as granted by the Bihar School Examination Board noting his date of birth to be 12.02.1980, that the appellant was juvenile. Apparently, the learned Sessions Judge, being prima facie satisfied, referred the matter to the Juvenile Justice Board, Saharsa to enquire into the matter. It constituted a Medical Board and considered its report as well as the matriculation certificate. It noted as a consequence of its enquiry that the date of birth of the appellant was 12.02.1980 and, as such, on the date of occurrence of this second case, that is, on 05.06.1996 he was much less than 18 years of age and, thus, declared him juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as Juvenile Justice Act of 2000). He, accordingly, sent his report to the Sessions Judge. The order of Juvenile Justice Board, Saharsa is dated 30.05.2006 and it was duly exhibited in the present case before the trial Court and marked as Ext. C. Upon receipt of the report of the Juvenile Justice Board, Saharsa, the learned Sessions Judge, Saharsa in Sessions Trial No.210 of 2003, noting that the appellant was much less than 18 years of age on the date of occurrence, by its order dated 04.08.2006 remitted the matter for final disposal to the Juvenile Justice Board, Saharsa in terms of the Juvenile Justice Act of 2000. This order of learned Sessions Judge in Sessions Trial No.210 of 2003 dated 04.08.2006 was exhibited in the present case before the trial Court and marked as Ext. D. Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 4 On 08.11.2007 the appellant filed a petition in the present case being Sessions Trial No.68 of 1997 as pending before the learned Additional District Judge, F.T.C.-II, Saharsa claiming that he was a juvenile and had been so found by the Juvenile Justice Board, Saharsa and the learned Sessions Judge, Saharsa by virtue of Exts.C & D. From the records, which we have perused the appellant’s petition, clearly referred to the aforesaid orders as also the amendment to the Juvenile Justice Act of 2000 by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. On behalf of appellant, it was urged that by virtue of Section-7A as newly inserted and Section-20 as amended by addition thereto a proviso and an explanation, he was a juvenile and had to be given the benefit under the Juvenile Justice Act of 2000. From the records, we find that the learned A.P.P. filed a rejoinder to the appellant’s petition, inter alia, stating that the Juvenile Justice Act of 2000, which had come into force with effect from 01.04.2001, was prospective in application and as on the said date the appellant was above 18 years of age, he could not get the benefit thereof, being above 16 years of age on the date of occurrence, which was 09.08.1996 when the Juvenile Justice (Care and Protection of Children) Act, 1986 was in force, he could not get the benefit of the Act of 1986 as the juvenile defined therein by virtue of Section-2(h) thereof meant a boy not above the 16 years of age. We may note with regret that he mentioned nothing about the amendments to the Juvenile Justice Act of 2000 by Amendment Act of 2006 which was in detail referred to and appended to the appellant’s petition. What we find more distressing is that the learned Additional Sessions Judge by his order dated 19.12.2007 rejected the plea of the appellant even though he Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 5 recorded the finding apparently basing on Exts. C&D, that on the date of occurrence, that is, on 09.08.1986 the appellant was 16 years 5 months and 27 days old. He held that as he was above 21 years on 01.04.2001 when the Juvenile Justice Act of 2000 came in force, he could not get the benefit of the said Act. Learned Additional Sessions Judge before whom the matter was pending like the A.P.P. ignored to consider the amendment to the Juvenile Justice Act of 2000 by the Amendment Act of 2006. Learned Additional District Judge then proceeded to hear the final arguments in the Sessions Trial No.68 of 1997 and delivered the judgment on 28.06.2008, holding the appellant guilty under both Section-302 and Section-201 of the Indian Penal Code and sentenced him to life imprisonment. What is more distressing is that in the final judgment he has chosen not to refer to the question of juvenility of the appellant at all, rather he has noted Exts. C&D on behalf of defence but shown it to be merely certified copies of orders stating in paragraph-23 of his judgment that they have been filed to show that Krishna Kumar Jha, the uncle of the appellant was in inimical terms with the appellant which was obviously, to his knowledge, incorrect. Upon the conviction and the sentence being awarded appellant was taken into custody to serve out the sentence and, as such, has continued in custody till date, which is now over 3 years. His bail applications before this Court were rejected without the question of juvenility being raised or considered. As in the case under appeal the trial Court by order dated 19.12.2007 found the appellant to be 21 years of age on the date of judgment, that is, 28.06.2008 our curiosity led to the discovery of the aforesaid facts from the available records itself. It is because of this that we decided to finally hear the appeal in detail as in our opinion permitting Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 6 detention of the appellant in custody any further would be travesty of justice. If the appellant was to succeed on merits in the appeal itself then there was no question of giving him the benefit of his juvenility, but if we found that on facts the conviction had to be sustained then the appellant had to be given the benefit of juvenility in terms of Section 7A read with Section 20 of the Juvenile Justice Act, 2000 as amended and as he had spent more than 3 years in prison serving out the sentence, any further detention was totally unwarranted, if not illegal. In view of the insensitivity to the legal issue as shown and apparent from the judgment of the trial Court, which we say with regret is not a stray case, we have thought it advisable to clear the misconception prevailing in the Subordinate Courts of Bihar with regard to two issues of law which arise in the present case as well. The first issue is with regard to determination of age of a person accused of an offence when it appears that a person charged with offence is a juvenile or claims as such. The second issue is the consequences of a finding that on the date of occurrence if a person is found to be juvenile then what is to be done? The first thing we would like to mention is that if the provisions of the Juvenile Justice Act of 2000 and the Central Rules, that is, the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the Bihar Rules, that is, Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 are read then it would be found that Legislature has left no discretion in respect of both the issues to the Court or the Juvenile Justice Board. The procedure and the consequences are laid down without exception leaving no scope for discretion. Here, I may remind of what the Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 7 Apex Court said in the case of Shri Mandir Sita Ramji Versus Governor of Delhi & Ors. since reported in AIR 1974 Supreme Court 1868, relevant part of which is quoted hereunder:- “When a procedure is prescribed by the Legislature, it is not open for the Court to substitute a different one according to its notion of justice. When the Legislature has spoken, the Judges cannot afford to be wiser.” Now, coming to the first issue as to what is to be done by a Court when it finds that the accused appears to be a juvenile or claims to be a juvenile in terms of the Juvenile Justice Act of 2000 and the Rules framed thereunder. At this stage first we must notice that the first comprehensive legislation dealing with juvenile and juvenile delinquency as applicable in India was the Juvenile Justice (Care and Protection of Children) Act, 1986, Section-2(h) thereof defined a juvenile to mean a boy who had not attained the age of 16 years. This Act of Parliament was later repealed and replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 with effect from 01.04.2001. Under the Juvenile Justice Act of 2000 this definition of juvenile has been changed. By virtue of Section-2(k) of the Juvenile Justice Act of 2000 juvenile is defined as a person who has not completed 18 years of age, thus, in respect of boys the age of juvenility has since been increased from 16 years under the Act of 1986 to 18 years under the Act of 2000. As noticed above, the Juvenile Justice Act of 2000 was enforced with effect from 01.04.2001 and thereafter on 22.06.2001 the Central Government framed model rules known as the Juvenile Justice (Care and Protection of Children) Rules, 2001. It may be noted here that these Model Rules as framed by the Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 8 Central Government was one of the subject matter of consideration by the Constitution Bench in the case of Pratap Singh Versus The State of Jharkhand since reported in (2005) 3 Supreme Court Cases 551 wherein the Apex Court held that the Central Government did not have any authority to make those rules and they could not resort to those rule making power under the Clause dealing with power to remove difficulty. The Apex Court in that case was dealing with questions of juvenility and implications of the Juvenile Justice Act of 2000 and repeal of the Act of 1986. It must be noticed here that soon after the said Constitution Bench judgment in 2005, the Juvenile Justice Act of 2000 was substantially amended. Apart from inserting a new provisions, that is, Section-7A and substantially amending Section 20 and Section 68 of the said Act, was also amended by adding a proviso to sub-section(1) thereof, authorizing the Central Government to frame model rules. Thus, the authority of the Central Government, which was found missing, in the judgment of the Constitution Bench in the case of Pratap Singh (supra), was cured. It is under this amended provision, which authorized the Central Government to frame model rules, the Central Government has now framed the Juvenile Justice (Care and Protection of Children) Rules, 2007 enforced with effect from 26.10.2007. Section-68 of the Juvenile Justice Act of 2000 had originally authorized only the State Government to frame Rules to carry out the purposes of the Act, which has now been extended to the Central Government as well, as noticed above. In so far as Bihar is concerned, the State Government has framed the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003. Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 9 So far as the first issue is concerned, we need not discuss the same in detail because the provisions of the Juvenile Justice Act of 2000, the model rules as framed by the Central Government in 2007 and the Bihar Rules of 2003 in relation to this issue had already been discussed by this Court in the case of Sachin Kumar Gupta @ Sachin Kumar Versus The State of Bihar & Anr. since reported in 2008(2) PLJR 800, which we approve. What has been held in substance is that considering the provisions of the aforesaid legislations and the delegated legislation and in particular Rule-12 of the Central Rules 2007 and Rule-22 of the Bihar Rules-2003 that the age would be assessed first on basis of the birth certificate given by the Corporation or the Municipality, the matriculation or equivalent certificate or the birth certificate from the school first attended and only in absence thereof the age would be assessed on the medical opinion of a duly constituted Medical Board subject to margin of 1 year and the documents above mentioned would be conclusive proof of the age. Thus seen, resort to Medical Board in each and every case is not the mandate of law, rather it comes into play only when the documents as mentioned in the Rules aforesaid are not available. It may further be noted that once a finding of juvenility is given in terms of Sections-7A, 14 and 49 of the Juvenile Justice Act of 2000, by virtue of Section-49 and in particular sub-section(2) thereof, no subsequent proof is at all admissible to deny the benefit of juvenility and the declaration once made is final. Thus seen, there is no discretion on the Court but in the said circumstances as mentioned above to hold an enquiry and give a finding in the manner prescribed. Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 10 I may note that the Apex Court in the case of Ram Suresh Singh Versus Prabhat Singh @ Chhotu Singh & Anr. since reported in (2009) 6 Supreme Court Cases 681, a case going from this Court, in principle also held the same view, though it noticed the Central Rules of 2001 as the judgment of this Court was delivered prior to the Central Rules of 2007. Even then it held that resort to Medical Board or other evidence is permissible only when the documents as mentioned in the rules aforesaid are not available and the documents if produced and proved would be conclusive proof of the age leaving no discretion on the Court. Thus, to conclude this first issue we must point out that if the claim about juvenility is made before any Court or any Court feels that the accused before it was a juvenile when the offence was committed then first, that Court, in terms of Sections-7 & 7A of the Juvenile Justice Act of 2000 would be obliged to refer the matter immediately to the Juvenile Justice Board. The Juvenile Justice Board then would conduct an enquiry, as contemplated under Section-14 of the said Act. While conducting the said enquiry, as noticed above in the case of Sachin Kumar Gupta (supra), the Board would consider the evidence in accordance with Rule- 12 of the Central Rules, 2007 and Rule-22 of the Bihar Rules, 2003 and pass appropriate orders. Once a person is declared to be juvenile, then in terms of Section-49 of the Act that order would be final and in terms of sub-section (2) thereof subsequently no proof can be taken as against it. If the order of the Juvenile Justice Board is against the person claiming to be juvenile or in favour of the juvenile then Section-52 provides for an appeal Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 11 to the Court of Sessions and Section-53 provides for a revision to the High Court. It is in view of these provisions and the scheme, as noticed above, that we have indicated that there is no discretion left to any Court or the Board in the matter and they have to proceed according to the schemes once it finds someone to be a juvenile or a claim of juvenility is made. This issue is answered accordingly. Now, we come to the second and more important issue as to the applicability of the Juvenile Justice Act of 2000 to proceedings pending when the said Act came into force and the consequence of a person being found to be a juvenile in terms of the said Act on the date of occurrence. In this regard, we may point out that if the date of occurrence is after the enforcement of the Juvenile Justice Act of 2000, that is, after 01.04.2001 the provisions are clear. In this situation, if it is found that the person is a juvenile and, hence, a juvenile in conflict with law, then the first thing is that by virtue of Section-12 of the Act his bail plea has to be disposed of. In other words, as provided under the said Act, he may or may not be released on bail, but in either of the case he cannot be remanded to the judicial custody. His case has to be placed before the Juvenile Justice Board which can, instead of releasing him make an order sending him to observation home or a place of safety by virtue of Section- 12(3) of the Act. Then orders that may be passed in terms of Section-17 may be passed keeping in mind orders by virtue of Section-16 of the Act which may not be passed. However, by virtue of Section-18 of the Act it is prohibited to try a juvenile together with a person who is not juvenile Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 12 but that trial would also be by and before the Juvenile Justice Board and not in any Court of the juvenile in conflict with law. Now, we come to the specific problem of applicability of the Juvenile Justice Act of 2000 to pending proceedings in cases, that is, offences committed prior to 01.04.2001 in respect of which either enquiry or trial is pending before a competent Criminal Court or appellate or revisional proceedings are pending from order of conviction. It would be our duty to point out that there has been substantial change in the statute law in regard to the provisions of the Juvenile Justice Act of 2000 in this regard since its enactment and enforcement on 01.04.2001. It would be seen that as originally enacted Section-2(l) of the Act defines juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence. Then, we had Section-7 and Section-20 to which the proviso and the explanation, as we now find, were not there. It is in this perspective when such a question arose before the Constitution Bench in the case of Pratap Singh (supra) that the Constitution Bench of the Apex Court held thus in paragraphs-36 & 37, which is quoted hereunder:- “36. We, therefore, hold that the provisions of the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the persons had not completed 18 years of age as on 1-4-2001. 37. The net result is: (a) 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 the court. Patna High Court CR. APP (DB) No.771 of 2008 dt.19-08-2011 13 (b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1-4-2001.” The effect of this judgment was that if the person who was charged with committing an offence prior to 01.04.2001 and was found to be a juvenile, that is, under 18 years of age and he had not attained majority as on the date of enforcement of the Juvenile Justice Act of 2000, Section-20 would apply and he would get the benefit of juvenility but notwithstanding the fact that he was a juvenile within the meaning of Juvenile Justice Act of 2000 on the date when the offence was committed prior to that Act but had attained majority by the time the Act came into being and the proceedings were pending he would not get the benefit of the said Act and would not be treated as a juvenile under the said Act. It appears to us that this is the position that was taken by the learned Additional District Judge in the present case because it found that when the offence was committed, though petitioner was not a juvenile, in terms of the Juvenile Justice Act