CR.A/988/2007 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 988 of 2007 With CRIMINAL MISC.APPLICATION No. 8264 of 2007 In CRIMINAL APPEAL No. 988 of 2007 With CRIMINAL MISC.APPLICATION No. 666 of 2008 In CRIMINAL APPEAL No. 988 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= JAGDISH @ JAGO MANSUR KUVADIA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR YS LAKHANI for MR AM DAGLI for Appellant:1 in all matters, MR HL JANI APP for Opponent(s) : 1 In all matters, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/988/2007 2/22 JUDGMENT Date : 26/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal under Section 374 of the Code of Criminal Procedure has been preferred by the appellant/applicant-original accused no.2 viz., Jagdish @ Jago Mansur Kuvadia, who has been charged and tried for the offence punishable under Sections 147, 148, 302 read with Sections 149, 120(B) and 34 of Indian Penal Code (“I.P.C.” for short) and under Section 135 of the Bombay Police Act in Sessions Case No.135 of 2000 wherein he was convicted to undergo two years R.I. and fine of Rs.1,000/-, in default, to undergo S.I. for one month for the offence under Section 147 of the I.P.C., convicted to undergo two years R.I. and fine of Rs.1,000/-, in default, to undergo S.I. for one month for the offence under Section 148 of the I.P.C., convicted to undergo imprisonment for life and fine of Rs.10,000/-, in default, to undergo S.I. for ten days for the offence under Section 302 read with Section 149, 120(B) and 34 of the I.P.C. and also convicted to undergo R.I. for three months and fine of Rs.500/-, in default, to undergo S.I. for ten days for the offence under Section 135 of the Bombay Police Act by the learned Presiding Officer, 2nd Fast Track CR.A/988/2007 3/22 JUDGMENT Court, Rajkot vide judgment and order dated 03.03.2007. 2.0 Against the aforesaid judgment and order of conviction and sentence, the present appellant/applicant has preferred the above referred Criminal Appeal which has been admitted on 07.12.2007. Along with the appeal, he has also preferred an application under Sec.389 of Cr.P.C. through learned counsel for releasing them on bail, pending hearing and final disposal of their appeal. Subsequently, Criminal Misc. Application No.666/2008 has been preferred by the present appellant/applicant for appropriate direction under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act). 3.0 Heard learned counsel for the appellant/applicant, Mr.Y.S.Lakhani for Mr.A.M. Dagli and learned APP, Mr.H.L.Jani, for the State at length. 4.0 Learned counsel for the appellant/applicant, Mr.Y.S. Lakhani has drawn our attention that on the day of incident, the appellant/applicant was aged about 16 years, 9 months and 27 days. In this connection, he has also taken us through the application, Exh.189 submitted by the appellant/applicant before the Court below on 04.01.2006, wherein he has prayed to try the case before the CR.A/988/2007 4/22 JUDGMENT Juvenile Court. However, said application was rejected on 20.01.2006 mainly on the ground that the act was introduced on 01.01.2001 and the incident is dated 26.05.2000 and, therefore, the benefit cannot be given to the appellant/applicant. However, while rejecting said application, the Court below has come to a conclusion that at the time of incident, the appellant/applicant was 16 years, 9 months and 27 days, which is an admitted position. 4.1 Mr.Yogesh Lakhani, learned counsel for the appellant/applicant has, therefore, argued that the matter should have been referred to Juvenile Court. He submitted that as per the amended provisions of the said Act, “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. 4.2 He has submitted that as per The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 there is an amendment to Section 20 by inserting explanation stating 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 such a juvenile shall be in terms of clause (l) of CR.A/988/2007 5/22 JUDGMENT 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. She therefore submitted that the appeal requires to be allowed. 4.3 He further submitted that in view of the fact that the incident in question is of the year 2000, if the matter is remanded as per the provisions of Act to competent court, the appellant/applicant has to undergo unnecessary agony. Relying upon a decision of the Apex Court in the case of Upendra Kumar V/s. State of Bihar, reported in 2005(3) SCC 592 (2005 SCC [Cri.] 778), learned counsel submitted that the sentence is required to be quashed. 4.4 Learned counsel, Mr.Lakhani for the appellant/applicant has relied upon Section 19 of the Act of 2000 and submitted that the intention of the Legislature is to remove the stigma on the juvenile and therefore even on this ground the appeal requires to be allowed. 4.5 He has also relied upon a decision in the case of Gopinath Ghosh V/s. State of West Bengal, reported in 1984(Suppl) SCC 228 [AIR 1984 SC 237] wherein it is held that in view CR.A/988/2007 6/22 JUDGMENT of the beneficial provisions of Act read with Article 29[f], it would be proper not to allow a technical objection and minor was allowed to avail the benefits of the provisions of the Act. In this case the conviction and sentence of minor was set aside and directions were issued to the Magistrate to the effect that whenever a case is brought before him, an inquiry as to the age of accused on the date of occurrence be made. 4.6 Learned counsel, Mr.Lakhani has relied upon a decision in the case of Bhola Bhagat V/s. Sate of Bihar, reported in AIR 1998 SC 236 (1997 (8) SCC 720, wherein also considering the finding of age by the trial court, the conviction sustained and the sentence awarded was quashed. 4.7 Learned counsel has also relied upon a decision in the case of Gurpreet Singh V/s. State of Punjab and Haryana, reported in AIR 2006 SC 191(2005 (12) SCC 615) wherein it is held that it is the lower court to decide whether the accused was juvenile as on the date of occurrence and if accused was juvenile on such date, he shall be acquitted and sentence would be liable to be set aside. 5.0 Mr. H.L. Jani, learned Advocate appearing for the State has vehemently opposed the appeal and submitted that the appellant/applicant CR.A/988/2007 7/22 JUDGMENT has not made out any case for allowing the appeal. He submitted that the entire prosecution case was admitted by the accused and the evidence clearly goes to show the guilt of the accused. He submitted that there is incriminating evidence against the appellant/applicant and the prosecution has proved the case beyond doubt. He, therefore, submitted that the appeal requires to be dismissed. 5.1 Mr. H.L. Jani, learned Advocate for the State submitted that it is true that the age of the appellant/applicant is more than 16 years, but less than 18 and in view of the judgment of the Apex Court in the case of Jameel V/s. State of Maharashtra, reported in AIR 2007 SC 971, the contention with regard to the age is not applicable in the present case. He further submitted that as far as merit of the matter is concerned, there are concrete evidence on record to connect the appellant/applicant with the crime in question and this Court may not interfere with the conviction and sentence of the appellant/applicant. 6.0 We have heard learned counsel appearing for the respective parties at length and perused the impugned judgment, documentary evidence on record, relevant provisions of law and the decisions of the Apex Court. CR.A/988/2007 8/22 JUDGMENT 6.1 We have given thoughtful consideration to the contentions raised by the learned counsel for the appellant/applicant and the arguments advanced by the learned counsel for the other side. We have also gone through the application, Exh.189 submitted by the appellant/applicant before the Court below dated 14.12.2005 along with the order dated 20.01.2006 passed by the Court below along with the date of amendment i.e. 22.08.2006. On perusal of the order passed below Exh.189, the finding of the Court below is quite clear that on the day of incident i.e. on 26.05.2000, the appellant/applicant was 16 years, 9 months and 27 days. However, after giving opportunity to the parties, said application was rejected because the said amendment was not into force. Therefore, we are not inclined to send back the matter to Court below for the purpose of determination the age. 6.2 However, we are required to consider the contention that at the time of incident, the appellant/applicant was admittedly aged 16 years 9 months and 27 days and, therefore, in view of change of law, the matter should be referred to Juvenile Court or not. In this connection it is advantageous to refer to Section 2, sub-section [h] of the Juvenile Justice Act, 1986 which reads as under: CR.A/988/2007 9/22 JUDGMENT [h] “Juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years; 6.3 In The Juvenile Justice (Care and Protection of Children) Act, 2000 the relevant provision is subsection [k] which reads as under: [k] “Juvenile” or “child” means a person who has not completed eighteenth year of age;” 6.4 At this Stage it is also relevant to note section 2(l) of the 2006 Act which defines “juvenile in conflict” with law as under: “[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.” 6.5 The procedure to be followed when a claim of juvenility is raised before any Court is stipulated under section 7A which reads as under: “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 is of the opinion that an accused person was a juvenile on the date of commission of the CR.A/988/2007 10/22 JUDGMENT 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 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect.” 6.6 Thus, if a claim of juvenility is raised, the court has to make an inquiry and after determining the age if the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), the court should 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. 6.7 On the facts of the present case the appellant/applicant had raised claim of CR.A/988/2007 11/22 JUDGMENT juvenility before the Sessions Court and the Sessions Court has ordered for an inquiry in which it was found that the appellant/applicant was of the age of 16 years 9 months and 27 days. However, it appears that after ascertaining the age of the appellant/applicant the Sessions Court has not considered the request of referring the matter to Juvenile Court and proceeded to pass the judgment and order of conviction and sentence. According to us it was just, legal and proper order in view of the prevailing law as the age of juvenile was fixed at 16 years. 6.8 However, it is required to be noted that subsection (l) of section (2) of The Juvenile Justice (Care and Protection of Children) Act, 2000 was amended by section 4 of The Juvenile Justice (Care and Protection of Children) Amendment Act,2006 (hereinafter referred to as the Amendment Act). Originally section 2(l) stipulated that “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence”. This subsection was amended by the Amendment Act stating that “juvenile inflict 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. The Legislature CR.A/988/2007 12/22 JUDGMENT has thought it fit to stipulate that the age of the accused should be taken as on the date of the commission of such offence. Once it is proved that the accused is a juvenile as per the provisions of section 2[l], it is mandatory for the court to forward the juvenile to the Board for passing appropriate orders. 6.9 Now, we are also required to consider as to whether at this stage this Court can consider the question of referring the matter to the Board. In this regard it is relevant to note that by section 14 of the Amendment Act, “Explanation” was inserted to section 20 of the principal Act which reads as under: “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.” [Emphasis supplied] 6.10 Thus, even in the case of appeal, the determination of juvenility of a juvenile shall be in terms of section 2[l], even if the juvenile ceases to be so on or before the CR.A/988/2007 13/22 JUDGMENT date of commencement of the said Act and the provisions of the said 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. 7.0 At this stage we may refer to the decision in the case of Upendra Kumar Vs. State of Bihar, reported in 2005(3) SCC 592 (2005 SCC(Cri) 778) held that at that point of time the question of referring the accused to the juvenile Board does not arise and it was held that the conviction sustained and the sentence was quashed. 7.1 In the case of Pratap Singh V. State of Jharkhand and Anr. Reported in AIR 2005 SC 2731 (JT 2005(2) SC 271 =(2005) 3 SCC 551= 2005 SCC (Cri.) 742 = 2005 Cri LJ 3091) it is held that for the determination of age of juvenile, the reckoning date would be the date of the commission of the offence and not the date when the offender is produced before the competent authority or court. It was further held that 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 person had not completed 18 years of age as on 1.4.2001. It is also required to be noted that the Constitution Bench in this decision has also held that the provision of CR.A/988/2007 14/22 JUDGMENT the 2000 Act is furthermore a remedial statute and it is required to be given a liberal construction. It would be advantageous to quote certain observations from the above judgment as under: “The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act. Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non obstante clause. The sentence “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 came into force” has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term “any court” would include even ordinary criminal courts. If the person was a “juvenile” under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that section 20 refer to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the CR.A/988/2007 15/22 JUDGMENT age of 18 years then the pending case shall continue in that court as if the 2000 Act has 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 shall forward the juvenile tot he Board which shall pass orders in respect of that juvenile. Such an interpretation does not offend article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. Thus, considering the relevant definitions and provisions, it is held that the 2000 Act would be applicable tot hose cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001.” 7.2 Mr. H.L. Jani has relied upon a decision in the case of Jameel V. State of Maharashtra, reported in AIR 2007 SC 971, wherein it is held that since the incident in the said case was of the year 1989, the Act of 2000 would have no application, the accused had completed the age of 16 years on the date of incident and therefore the accused was not juvenile under 1986 Act. It was therefore held that the plea that 2000 Act would apply as accused was not above 18 years on the date of occurrence is not tenable since on the date of enforcement of 2000 Act accused was CR.A/988/2007 16/22 JUDGMENT above 18 years. However, we are of the view that in view of the amendment to section 20 of the principal Act by inserting explanation, the 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. In short, the aforesaid decision has not taken into consideration The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, whereby explanation was inserted to section 20, and clause (l) was substituted by amending : “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. Therefore, this decision would be of no help to the learned Advocate for the State. 8.0 It is also relevant to note section 16 of the Act of 2000 which reads as under: “16.Order that may not be passed against juvenile – (1) Notwithstanding anything to the contrary contained in any other law for he time being in force no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security: Provided that where a juvenile who has CR.A/988/2007 17/22 JUDGMENT attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. (1) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit. [Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act.] 8.1 Thus, as per the above section no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life or be committed to prison in default of payment of fine or in default of furnishing security. 8.2 It is also required to be noted that in the Statement of Objections and reasons assigned while introducing The Juvenile Justice (Care CR.A/988/2007 18/22 JUDGMENT and Protection of Children) Act, 2000, the intentions inter alia stated are [a] to clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law, [b] to remove doubts regarding the relevant date in determining the juvenility of a person and applicability of the Juvenile Justice Act; [c] exclusion of the local authority from the provisions authorizing them to discharge or transfer a child in need of care and protection or a juvenile from the children's home or special home or for sending a juvenile in conflict with law undergoing imprisonment, to a special home or a fit institution; [d] to have a procedure laid down where claim of juvenility is raised before any court; [e] to have a minimum period of twenty-four hours, excluding the time necessary for