1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 930/2009 in Criminal Appeal No. 577/2006 Applicant : Atikkha s/o Ismilekha .Versus. Respondent : State of Maharashtra. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B. Varale,JJ DATE OF RESERVING : 15.6.2009 DATE OF PRONOUNCEMENT: 22.6.2009 Heard Mr. R.M. Daga, learned counsel for the applicant and Mrs. Dangre, learned Addl. P.P. For the respondent. 2. By this application, the applicant seeks quashing of the sentence passed by the First Ad hoc A.S.J., Achalpur in S.T.No. 07/1996 against the applicant. In the alternative, the applicant prays that the sentence imposed on him be suspended pending the hearing and final disposal of Criminal Appeal No. 577/2006. 3. The applicant – Atikkha s/o Ismilekha who is appellant no. 2 in Criminal Appeal No. 577/2006 and Ajijkha Ismilekha have filed the above appeal challenging their conviction and sentence imposed by 2` the learned Additional Sessions Judge for the offence punishable under Section 302 read with Section34 of the Indian Penal Code. The appellant along with seven others were charged for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code. The accused nos. 3 to 9 have been acquitted of the offences and the appellants have been convicted and sentenced. The offence for which the appellants have been convicted was committed on 3.7.1995. 4. It is the case of the applicant that he was born on 30.6.1978 and, therefore, he had completed 17 years and 3 days on the date of the incident and as such he is a juvenile in conflict with law in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 ( “The Act” for short) and, therefore, sentence imposed on him is liable to be quashed by maintaining the conviction. In alternative the applicant has prayed that till disposal of the appeal sentence imposed on him be suspended and he be released. 5. Mr. Daga, learned counsel for the applicant submitted that the respondents have filed reply in which it has not been disputed that the applicant was born on 30.6.1978 and as such on the date of the incident the applicant had completed 17 years and 3 days and as such he is juvenile in conflict in terms of 3` Section 2(l) of the Act. Mr. Daga, further submitted that since the applicant is a juvenile in conflict with law he can not be detained in custody under the provisions of the Act and as such he is entitled to be released by maintaining the conviction. Mr. Daga invited our attention to the amendment carried out in the year 2006 and more particularly to Section 2(l) and explanation to Section 20 and Section 64 of the Act. Placing reliance upon the provisions of the Act and more particularly the above referred provisions. Mr. Daga submitted that since the applicant is juvenile in conflict with law he is entitled to be released forthwith by maintaining the conviction. In the alternative he submitted that since the applicant is one of the appellant in Criminal Appeal No. 577/2006 sentence imposed on the applicant be suspended till disposal of the appeal. 6. In support of his submissions, Mr. Daga, relied upon the following judgments. 1. Yogesh Damodhar Sonbawane vs. State of Maharashtra. (2006 ALL MR (Cri) 678). 2. Saheb Sopan Kale vs. State of Maharashtra. (2008 ALL MR (Cri.) 1690. 3. Balu @ Bakthvatchalu vs. State of T.N. (2008 ALL MR (Cri) 1147 (S.C.). 4` 4. Imtiyaz HussainMumtiyaz Sheikh vs. State of Maharashtra. (2008 ALL MR (Cri.) 3399.) 5. Sou Motu High Court on its own motion vs. The Chief Secretary, Govt. of Maharashtra & others. (2009 ALL M.R. (cri) 685) 6. Charanjit Singh vs.State of NCT of Delhi (2004(4) Crimes 279 7. Satish @ Dhanna vs. State of M.P. & others. (2009(2) Crimes 199(SC). 7. Per contra, Mrs. Dangre, learned Addl. P.P. appearing for the respondent submitted that the applicant is not entitled to any relief since admittedly he was not juvenile under The Juvenile Justice Act, 1986 and the applicant is not entitled to invoke the provisions of the Act of 2000. Mrs. Dangre, further submitted that in terms of Section 20, the applicant is not entitled to be released and the provisions of the Act are not applicable to the case of the applicant since the offence was committed much prior to coming into force of the Act. In support of her submissions, the learned Addl. P.P. Relied upon the following judgments. 5` i) Pratap Singh v. State of Jharkhand and another. (AIR 2005 Supreme Court, 2731) ii) Vinod Gulabrao Kinake vs. State of State of Maharashtra. (2008 ALL MR (Cri) 192. iii) Jameel vs. State of Maharashtra (2007 ALL MR (Cri) 565 (S.C.). 8. We have carefully considered the submissions by the learned counsel for the applicant and learned Addl. P.P. for the respondent, perused the record and Judgments relied upon by the rival parties. 9. The question which arises for consideration is Whether the applicant is covered under the Act, 2000 and ,therefore, he is entitled to be released forthwith by maintaining conviction awarded by the trial court. 10. In order to to appreciate the rival contentions it would appropriate to refer to the relevant provisions of the Act. They are Sections 2(l), 7(A), 20 and 64 . They read thus; 6` “2(l) : “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;” “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 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 thereunder, 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 order, and the sentence, if any, passed by a Court shall be deemed to have 7` no effect.” “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.” “Section 64—Juvenile in conflict with law undergoing sentence at commencement of this Act —In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent 8` to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of this Act. (Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile. Explanation- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (1) of section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the 9` maximum period provided in section 15 of this Act. 11. The Act came into force on 1.4.2001. In terms of Section 2(k) Juvenile or child is defined as a person when he completed eighteenth year of age. Section 2(l) which was brought by way of Amendment Act of 33 of 2006 with effect from 22.8.2006 “juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth years as on the date of the commission of the offence. Section 7-A which was also inserted by the Amendment Act provides that 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 he 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; The Section provides 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 thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. 10` Sub section (2) provides that 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 order, and the sentence, if any, passed by a Court shall be deemed to have no effect. Section 20 provides that 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. Proviso and explanation to the said section was added by the Amendment of 2006. In terms of the proviso the Board has been given power or adequate and special reason to mention in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation to the Section provides that 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 11` 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. “Section 64 provides that the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment a the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of this Act. Proviso which has been inserted by Amendment stipulates that the State Government or the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile. Explanation 12` provides that in all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility shall be deemed to be decided in terms of clause (l) of Section 2 and other provisions contained in this act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of the Act. In terms of section 15 of the Act,the juvenile can be sent to special home maximum for a period of three years or be can be released on probation of good conduct and placed under the care of any parent, guardian or other fit person for a period not exceeding three years or he can be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well being of the juvenile for any period not exceeding three years. 12. We shall now deal with the authorities relied upon by both sides. 13` The case of Yogesh Sonbawane (supra) was decided prior to amendment of 2006 to the Act and as such we do not deem it necessary to refer to the said case. In the case of Saheb Sopan Kale (supra), the Division Bench recalled the sentence imposed on the applicant by giving him benefit of The Juvenile Justice Act, 2000. In the said case, the applicant was born on 5th March, 1981 and the offence was committed on 15th May, 1997 and as such he was not a juvenile under the Act of 1986. The Division Bench placing reliance upon Sections 2(l), 7-A, 20 and 64 of the Act held that the applicant being a juvenile under The Act of 2000 was entitled to be released and ordered his release since he had already undergone imprisonment for more than 3 years by placing reliance upon the provisions of the Act of 2000. In the case of Imtiyaz Hussain Mumtiyaz Sheikh (supra) the Division Bench of this Court by maintaining conviction of the applicant directed his release since he had already undergone more than 3 years of imprisonment and thereby allowed the appeal to the extent of sentence. In the said case, the appellant was born on 16th August, 1978 and incident had occurred on 5th July, 1995. The appellant on the date of offence had completed 16 years 10 months and 20 days. In the said case, the Division Bench also considered the Judgment of the 14` Apex Court in Pratap Singh vs. State of Jharkhand (AIR 2005 S.C., 2731) . The Division Bench held that the Judgment in Pratap Singh’s case would not apply in view of of the amendment carried out in 2006 to the Act. The Division Bench also placed reliance upon the Judgment in the case of Saheb Sopan Kale (supra). The Division Bench of this Court took suo motu action in the case reported in 2009 ALL M.R. (Cri) 685 and gave certain directions. In the said case the Court directed that the benefit of Section 7-A should be made applicable to the prisoners who are convicted under the Juvenile Justice Act, 1986 in terms of which the Juvenile was a person less than 16 years of age. In the case of Vinod Kinake (supra), the Division Bench of this Court directed release of the appellant after holding him to be juvenile in terms of the Act, 2000. In the said case, the Judgment by the Additional Sessions Judge was passed on 3.2.2004. Hence the ratio laid down in this case is not applicable in the present case. In the case of Charanjit Singh (supra) the Division Bench of Delhi High Court by Judgment dated 24.9.2004 held that the provisions of the Act, 2000 would be applicable where the accused had completed 16 years of age but was less than 18 years of age on the date of commission of the offence i.e. 23.10.1988. The said case is not of much assistance of the petitioner since the 15` Judgment was rendered prior to amendment of 2006. In the case of Satish @ Dhanna (supra) the two Judge Bench of the Apex Court by Judgment delivered on 17.4.2009 held that the Act, 2000 was applicable since the appellant was born on 12.11.1980. By placing reliance upon Section 20 of the Act, the Apex Court extended the benefit under the said Act on the ground that on the date of occurrence the appellant had not completed 18 years of age. 13. In the case of Pratap Singh (Supra) relied upon by the learned A.P.P., the Apex Court held that the date for determination of the age of juvenile offender is the date of offence and not the date when he is produced in the Court or before the competent authority. The Constitution Bench of the Apex Court held that the provisions of the Act,2000 would be applicable to the pending proceedings in any Court/ competent authority initiated under the 1986 Act and pending when 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001. The Judgment in Pratap Singh’s case was delivered on 2.2.2005. In the case of Zameel (supra) Judgment was delivered by the Apex Court on 16.1.2007. The two Judge Bench held that since the accused was above 18 years of age on 1.4.2001, the Act of 2000 was not 16` applicable. The Apex Court placed reliance upon the case of Pratap Singh (supra). In Ranjit Singh’s case (supra) delivered on 11.9.2008 another two Judge Bench of the Apex Court held that since the accused was 17 years old at the time of occurrence i.e. on 1.8.1993 he was not a juvenile under the Act of 1986 and he was not entitled to the benefit under the Act of 2000. 14. In the case of Satish @ Dhanna the Apex Court has held that the Act of 2000 is applicable since on the date of the offence the appellant was not 18 years of age since the appellant was born on 12.11.1980 and it appears that the offence was committed when the appellant was above 16 years and below 18 years of age. In this factual backdrop, the Apex Court extended the benefit of the Act of 2000 and after maintaining the conviction awarded restricted the sentence to the period already undergone and further ordered his release forthwith if not required in any other case. In the case of Zameel reliance has been placed upon the Judgment of the Apex Court in Pratap Singh which was delivered on 2.2.2005. In the said Judgment the amendments carried out in the year 2006 and more particularly Section 2(l), 7-A and explanation to Section 20 did not and could not come for consideration. From perusal of the 17` Judgments of the Apex Court referred to above it is evident that the ratio laid down in the case of Satish @ Dhanna runs counter to the Judgment in the case of Jameel and Ranjit Singh. We are, therefore, faced with the situation wherein two coordinate Benches of Apex Court have taken a contrary view. We are, therefore, left with no other alternative but to choose the Judgment which appears to us to be in consonance with law. 15. The Division Bench of this Court in the case of Imtiyaz Hussain Sheikh has considered Sections 2(l), 7-A, 20 and 64 of the Act of 2000 and has held that the provisions of the Act were applicable since the appellant was less than 18 years of age on the date of commission of the offence, having been born on 16.8.1978 and since he had already completed 3 years in jail he was ordered to be released by maintaining conviction under Section 302 of the Indian Penal Code. We are in respectful agreement with the reasons and the view taken in the said Judgment. The Apex Court has taken the same view in the case of Satish (supra) which is in consonance with the provisions of the Act of 2000 as amended in 2006. We would, therefore, prefer to follow the judgment in the case of Satish. In our considered opinion on harmonious reading of Sections 2(l), 7-A, 20 and 64 the benefit 18` of the provisions of the Act has to be extended to the convict if the proceedings are pending before the Court and even if the offence is committed prior to coming into force of the Act if the accused was below 18 years of age on the date of commission of offence. In the present case admittedly on the date of commission of the offence, the applicant was less than 18 years of age and, therefore, the provisions of the Act are applicable to his case. Indisputably, the applicant has already undergone imprisonment for more than three years. The applicant is, therefore, entitled to be released by maintaining his conviction for the offence under Section 302 of the Indian Penal Code. 16. In the result, therefore, the application is allowed and by maintaining the conviction of the applicant- Atikkha s/o Ismilekha under Section 302 of the Indian Penal Code, he is ordered to be released forthwith, if not required in any other case. Needless to mention that the appeal in so far as the appellant no.1 Ajijkha s/o