Cr.A. No.591 of 1996 3.6.2010 Present: Mr.Vivek Singh Thakur, Addl.Advocate General with Mr.Rajesh Mandhotra, Dy.A.G., for the appellant-State. Mr.Navlesh Verma, Advocate for the respondent alongwith the respondent. Heard Sh.Navlesh Verma, Advocate on the question of quantum of sentence. Sh.Verma submits that in view of the provisions of the Juvenile Justice (Care and Protection of Children Act, 2000) especially Section 20 thereof as amended by the Act of 2006, the petitioner cannot be sentenced and must be dealt with under the provisions of the said Act. On 30th April, 2010 while deciding Cr.Appeal No.406 of 1995, we had rejected a similar contention raised on behalf of the accused and had held as follows:- “3. On the other hand, Mr. Vivek Thakur, learned Addl. Advocate General has drawn our attention to a Constitution Bench judgment of the Apex Court in Pratap Singh vs. State of Jharkhand & Anr. 2005(3) SCC 551, wherein the Apex Court held as follows:- “34. This rule also indicates that the intention of the legislature was that the provisions of the 2000 Act were to apply to pending cases provided, on 1-4-2001 i.e. the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i.e. he/she had not crossed 18 years of age.” 4. Reference has also been made to the judgment of the Apex Court in Jameel vs. State of Maharashtra (2007) 11 SCC 420, wherein the Apex Court held as follows: “9. It was furthermore submitted that although the age of the appellant on the date of the occurrence was more than sixteen years but below eighteen years, having regard to the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000, (for short, 'the 2000 Act), it was imperative on the part of the court to follow the procedures laid down therein. x x x x x x x x x x x x x x x x x x x x x x x x x 13. So far as the submission of the learned counsel in regard to the applicability of the 2000 Act, is concerned, it is not in dispute that the appellant on the date of occurrence had completed sixteen years of age. The offence having been committed on 16.12.1989, the 2000 Act has no application. In terms of the Juvenile Justice Act, 1986, 'juvenile' was defined to mean "a boy who had not attained the age of sixteen years or a girl who had attained the age of eighteen years". x x x x x x x x x x x x x x x x x x x x x x x x [ 15. The appellant was above eighteen years of age on 01.04.2001. The 2000, therefore, cannot have any application whatsoever in the instant case.” 5. To the similar effect is the judgment of the Apex Court in Ranjit Singh vs. State of Haryana (2008) 9 SCC 453, where relying upon the judgment in Jameel’s case (supra), the contention that the petitioner was entitled to the benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000, since he was below 18 years as the date of commission of offence was rejected. 6. In view of the law laid down by the Apex Court we are clearly of the opinion that Section 20 is not applicable in this case since admittedly the accused was over 16 years of age at the time of commission of the offence i.e. 22.6.1993 and over 18 years of age on 1.4.2001, the date when the Act was brought into force.” Today our attention has been drawn by the learned counsel for the parties to the judgment of the Apex Court in Hari Ram Vs. State of Rajasthan &anr. 2009 (6) Scale, 695. The Apex Court in this case has considered the judgments relied upon by us in our earlier order and also considered the various provisions of the Act and the Rules framed thereunder. The Apex Court in para 19 of its judgment noticed that one of the questions which frequently arose after enactment of the Juvenile Justice Act, 2000 was with regard to the application of the definition of juvenile in respect of the offences alleged to have been committed prior to 1st April, 2001. The question which had been frequently raised was whether a male person who was above 16 years on the date of commission of the offence prior to 1st April, 2001 would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. The Apex Court noted that the proviso and the explanation were added to Section 20 of the Act by the amendment Act of 33 of 2006 to set at rest any doubts that may have arisen. The apposite observations of the Apex Court are as under:- “26. The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (1) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the 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. In fact, Section 20 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 Juvenile Justice Act, 2000.” The Apex Court thereafter noted the other decisions including the Constitution Bench judgment in Partap Singh’s case supra and held that the said judgment was delivered prior to the amendment made by the Act of 2006 and prior to the introduction of Rule 7-A and Rule 12 of 2007 Rules. The Apex Court also held that while deciding Jameel’s case, Vimal Chadha’s case and Ranjit Singh’s case, the amendment to the Act and the introduction of the Juvenile Justice Rules, 2007 were never brought to the notice of this Court. The decision in Hari Ram’s case has been followed by the Apex Court in Mohan Mali and anr. Vs. State of H.P. 2010 (4) Scale, 493 and Dharambir Vs. State (NCT of Delhi) & anr, 2010 (4) Scale, 316. We also faced a similar predicament while delivering the judgment in Cr.Appeal No.406 of 1995 quoted here-in-above. Neither the amendments were brought to our notice nor the judgment of the Apex Court in Hari Ram’s case (supra) was brought to our notice. Therefore, we have no hesitation in saying that the judgment to which one of us (Deepak Gupta, J) was a party does not lay down the correct law and is contrary to the law in Hari Ram’s case. In the present case, admittedly, the accused was over 16 years but below 18 years of age when the offence was committed. Therefore, in terms of the judgment in Hari Ram’s case (supra), the accused has to be dealt with under the Juvenile Justice Act since the offence was committed on 13.1.1994 and more than 16 years have elapsed. The respondent is now 34 years old and, therefore, sending him to the Board now would be an exercise in futility because the Board can only send the accused to the juvenile/observation home and not to jail. In fact, it is against the interest of the other occupants of the juvenile/observation home in case we send a person of the age of 35 years to the observation home. Therefore, we do not impose any sentence on the accused since he was juvenile and not liable to be punished. The appeal is accordingly disposed of. (Deepak Gupta), Judge June 3, 2010(m) (Rajiv Sharma), Judge