IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 384 of 2010 Date of Decision : August 20, 2010 Vikas ....Petitioner Versus U.T. Administration, Chandigarh .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. V.K.Jindal, Advocate for the petitioner. Mr. Hemant Bassi, Additional Public Prosecutor, U.T. Administration, Chandigarh T.P.S. MANN, J. By way of the present petition filed under Articles 226/227 of the Constitution of India, the petitioner had prayed for issuance of writ in the nature of habeas corpus for holding that he was entitled to be released forthwith under the Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as 'the Act of 2000' and the rules made thereunder on the ground that his detention was violative of the provisions of Articles 14, 19 and 21 of the Constitution and, therefore, he was being deprived of his liberty without any due process of law. The petitioner was involved in a case registered vide FIR Crl. Writ Petition No. 384 of 2010 -2- No. 118 of 1996 at Police Station Central, Chandigarh for the offences under Sections 302, 364, 419, 467 and 471 IPC. Vide judgment and order dated 8.1.2002(Annexure P-1), learned Sessions Judge, Chandigarh convicted the petitioner under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-. The petitioner challenged his conviction and sentence by filing an appeal but the same was dismissed by the High Court vide judgment dated 18.5.2006(Annexure P-2). Even the Special Leave Petition filed by the petitioner was dismissed by the Hon'ble Supreme Court of India on 11.9.2006(Annexure P-3). At present the petitioner is confined in Model Jail, Chandigarh and undergoing the sentence of life imprisonment. The petitioner claimed that he was born on 22.6.1978 in Command Hospital, Chandigarh. In support of the said fact, the petitioner placed on record the birth certificate Annexure P-4 and the certificate (Annexure P-5) issued by the Central Board of Secondary Education on 21.6.1993. Therefore, on 12.4.1996 when the petitioner had committed the murder regarding which he was tried, convicted and sentenced, he was seventeen years, nine months and twenty days old. However, the trial Court had wrongly recorded his age as twenty four years while convicting and sentencing him. The issue with regard to his age was raised by the petitioner in the appeal but did not find favour of a Division Bench of the High Court on the ground that he was not a Crl. Writ Petition No. 384 of 2010 -3- juvenile under the Juvenile Justice Act, 1986, hereinafter referred to as 'the Act of 1986'. The observations made by the Bench were as under:- “We have carefully gone through the evidence already brought on the record and have heard the learned counsel for the parties. On behalf of the appellant, it has been contended by the learned counsel that he had also taken the plea that the appellant was juvenile on the date of occurrence, i.e. 12.4.1996, as per the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of his arguments, he contended that the date of birth of the appellant is 22.6.1978 as recorded in the School Certificate as well as the date of birth mentioned in the certificate issued by the Command Hospital(Western Command), Chandigarh. Thus, according to the learned counsel, the occurrence in the instant case took place on 12.4.1996 and admittedly, the appellant was less than 18 years of age. The appellant has not taken up this point at any stage before the trial court till the conclusion of the trial and has raised this in appeal for the first time in this Court. To appreciate the contention of the learned counsel, the respective provisions of the law as given in Juvenile Justice (Care and Protection of Children) Act, 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000 need to be mentioned here. According to the provisions of Section 2(h) of the Juvenile Act, 1986 the Juvenile has been defined as a person below the age of 16 years where as under the Juvenile Justice Act, 2000 as per provisions 2(k), Juvenile or child means a person Crl. Writ Petition No. 384 of 2010 -4- who has not completed eighteenth year of age, which reads as under:- 2(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. Section 2(k) of 2000 Act defines juvenile as under:- “Juvenile” or “child” means a person who has not completed eighteenth year of age”. According to learned counsel for the appellant as laid down in the Act 2000 it has the retrospective effect and if it is taken into account the accused on the date of occurrence, i.e. 12.4.1996 was below the age of 18 years and was thus entitled to protection of Juvenile Justice (Care and Protection of Children) Act, 2000. The similar plea of the counsel for the appellant was earlier raised and considered by the Division Bench of this Court in Subhash and others Versus the State of Haryana, Criminal Appeal No. 269-DB of 1996 and after considering the point to be relevant referred the matter to the Hon'ble Chief Justice of this Court for constituting a larger bench, vide its order dated 4.11.2003. Admittedly, the matter has not been disposed of so far by the full bench. Meanwhile, a full Bench of the Apex Court in Partap Singh Versus State of Jharkhand and another 2005(1) RCR (Crl) 836, wherein para no.25 made a distinction between the 1986 Act and 2000 Act and it had observed that so far as the Crl. Writ Petition No. 384 of 2010 -5- Act of 2000 is concerned, no distinction has been drawn between the male and female as juvenile. The limit of 16 years in 1986 Act has been raised to 18 years in 2000 Act. In the 2000 Act, wherever the word “juvenile” appears the same will now have to be taken to mean a person who has not completed 18 years of age. In the instant case, it is not disputed by the learned counsel for the parties that the appellant was more than 16 years of age on the date of occurrence as his age was 17 years and 8 months and few days. Whereas the new Act came into force with effect from 1.4.2001. Therefore, the plea of the counsel for the appellant that the appellant is entitled to the benefit under the Juvenile Justice Act, 2000 with retrospective effect is not tenable because the appellant was not a juvenile under the old Act of 1986 or under the new Act of 2000, it was on this count that no inquiry was initiated by the Court to find out whether the appellant was a juvenile or not because he was not juvenile on the date of commission of crime both under the old Act or 1986 or Act of 2000”. In the year 2009, the Hon'ble Supreme Court in Hari Ram V State of Rajasthan and another 2009(2) RCR(Criminal) 878 and appended with the petition as Annexure P-6, observed that all the accused between the age group of sixteen to eighteen years convicted or still facing trial under the Juvenile Act, 1986 would be treated as juvenile under the Act of 2000 and the rules framed thereunder in the year 2007 would have retrospective effect by virtue of Rule 12 of the Crl. Writ Petition No. 384 of 2010 -6- Juvenile Justice (Care and Protection of Children) Rules, 2007, in short 'the Rules'. The observations so made are reproduced here-in-below:- “In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2 (k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect (sic). However, as indicated hereinbefore after the decision in Pratap Singh's case (supra), Section 2 (l) was amended to define a juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence; Section 7A was introduced in the 2000 Act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act, 2000. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Crl. Writ Petition No. 384 of 2010 -7- Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act”. In view of the aforementioned decision, the petitioner became emboldened and filed Criminal Writ Petition No. 632 of 2009 for his release under the Act of 2000. When the said writ petition came up for hearing, learned counsel for the petitioner stated that the petitioner would be satisfied if he was permitted to move a representation before the higher authorities for being declared a juvenile. The request made was considered to be fair and, accordingly, the petition was disposed of on 30.11.2009 (Annexure P-6/A) by observing that in case the petitioner moved a representation to the Secretary, Social Welfare, U.T. within a period of two weeks, he would pass a speaking order thereon within a period of six weeks thereafter. The petitioner then sent a representation dated 6.12.2009 (Annexure P- 7) wherein he pleaded that he be declared juvenile in terms of Section 2 (l) of the 2000 Act and order be passed for his immediate release. His representation was considered by the Secretary, Social Welfare, Chandigarh Administration, who vide order dated 13.1.2010 rejected the Crl. Writ Petition No. 384 of 2010 -8- same being devoid of any merit and observed that, if so advised, the petitioner may approach the Hon'ble Supreme Court for redressal of his grievances as the power to review was only with the Hon'ble Supreme Court, which had earlier dismissed the Special Leave Petition filed by him against his conviction and sentence. While coming to such a conclusion, the Secretary, Social Welfare, declared that the petitioner was not a juvenile under the old Act of 1986 or under the new Act of 2000, no enquiry had been initiated by the Court to find out as to whether he was a juvenile or not, and, as such, the claim was to be considered as on the date of commission of the crime. The said order, copy of which has been attached as Annexure P-8 with the petition, has also been challenged by the petitioner by seeking its quashing. The short question, which arises in the present case, is as to whether the petitioner, who was more than sixteen years of age and less than eighteen years of age at the time of commission of the crime, can be extended the benefit of his juvenility, before his release, as per Section 15 of the Act of 2000, which prescribes maximum limit of detention of the child/juvenile as three years. Rule 98 provides that even in disposed of cases of juveniles in conflict with law, the State Government is competent to review the case of a person or a juvenile and determine his juvenility in terms of the provisions contained in the Act as well as Rule 12 and pass an appropriate order in the interest of the juvenile under Section 64 of the Act by ordering his immediate Crl. Writ Petition No. 384 of 2010 -9- release whose period of detention or imprisonment had already exceeded the maximum period provided in Section 15 of the Act. Initially, an adjournment was sought for filing the reply but lateron it was stated that no reply was required to be filed and the matter be heard on the basis of the petition as well as the annexures attached thereto. However, the stand of the U.T. Administration was that the petitioner is not entitled to the benefit of the Act as he was more than sixteen years of age on the date of commission of offence and had not undergone the requisite sentence of life imprisonment. Though the trial Court had recorded the age of the petitioner as twenty four years yet in view of the birth certificate Annexure P-4 and certificate Annexure P-5 issued by the Central Board of Secondary Education, this Court has no other option but to hold that the petitioner was less than eighteen years of age at the time of commission of offence. Even the learned counsel for the respondent expressed his helplessness in doubting the authenticity of the aforementioned certificates. However, he submitted that as the conviction and sentence of the petitioner has already been upheld by the Hon'ble Supreme Court vide order dated 11.9.2006 (Annexure P-3), this Court is not competent to entertain his plea of being a juvenile at the time of the incident. The petitioner may, if he so chooses, approach the Hon'ble Supreme Court for the relief sought for by him in the present Crl. Writ Petition No. 384 of 2010 -10- petition. Section 2(h) of the Act of 1986 defined a juvenile as under:- “2(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”. The incident in question had taken place on 12.4.1996. Therefore, at that time the provisions of the Act of 1986 were applicable. As the petitioner was more than 16 years of age, he could not have been considered a juvenile. However, under the Act of 2000 juvenile was considered to be one, who had not completed eighteenth year of age. A juvenile in conflict with law, meant a juvenile, who was alleged to have committed an offence and had not completed eighteenth year of age as on the date of commission of such offence. Section 2(k) of the Act of 2000 defining the juvenile or child and Section 2(l) defining the juvenile in conflict with law are reproduced here-in-under:- “2(k) “juvenile” or “child” means a person who has not completed eighteenth year of age; 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”. Crl. Writ Petition No. 384 of 2010 -11- Apparently, when the Act of 2000 came into force, the petitioner could have been considered to be a juvenile in conflict with law as he had not completed eighteenth year of age on the date of commission of the offence. However, there was no provision in the Act to deal with the cases of those persons, who were alleged to have committed the offence before the enforcement of the Act of 2000 but were more than eighteen years of age on the date of the commission of the offence. In the year 2006, Section 1(4) was inserted in the Act of 2000 making the provisions of the Act applicable to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law. Section 1(4) of the Act reads as under:- “Section 1 (4): Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law." Alongwith the introduction of Section 1(4), the Parliament also brought Section 7A on the statue book to deal with the procedure required to be followed wherever claim of juvenility was raised before any Court. Proviso to Section 7A(1) recognized the claim of juvenility Crl. Writ Petition No. 384 of 2010 -12- to be raised at any stage even after the final disposal of the case and such a claim to be determined in terms of the provisions contained in the Act of 2000 and the rules made thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act of 2000. Section 7A of the Act of 2000 reads as follows:- “Section 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 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 order, and the sentence if any, passed by a Court shall be deemed to have no effect. " Crl. Writ Petition No. 384 of 2010 -13- Similarly, a proviso and explanation to Section 20 of the Act of 2000 were inserted giving power to the Juvenile Board to review the case and pass an appropriate order in the interest of a juvenile and where the case was still pending in respect of a juvenile in conflict with law, the determination of juvenility to be in terms of clause (l) of Section 2 even if the juvenile had ceased to be so on or before the date of commencement of the Act of 2000 and the provisions of the Act to 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 20 of the Act reads as follows:- “Section 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 Crl. Writ Petition No. 384 of 2010 -14- 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." Rule 12 deals with the procedure to be followed in determining the age of juvenile in conflict with law. The rule reads as follows:- “Rule 12. Procedure to be followed in determination of Age.---- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or Crl. Writ Petition No. 384 of 2010 -15- otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat: (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering Crl. Writ Petition No. 384 of 2010 -16- his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms