(2014) 11 S.C.R. 293

MAHESH JOGI

I(.

THE STATE OF RAJASTHAN (Criminal Appeal No. 2621 of 2014)

DECEMBER 16, 2014

[FAKKIR MOHAMED IBRAHIM KALIFULLA AND

ABHAY MANOHAR SAPRE, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2000 - s. 2(k), 15 - Juvenile - Appellant-accused about 17 C years and 4 months on the date of the commission of offence-

20. 01. 1985 - Conviction and sentence imposed on the appellant, prior to the commencement of the Act of 2000 - Entitlement for the benefit as a juvenile under the Act of 2000

- Held: Benefit would only enure to the extent of the sentence o imposed on the appellant - Therefore, even while upholding the cgnviction it is held that the appellant was a juvenile, as regards imposition of sentence on the appellant, the Juvenile Justice Board directed to pass appropriate orders u/s. 15 of the Act.

Ajay Kumar v. State of Madhya Pradesh (2010) 15 SCC 83; Jitendra Singh alias Babboo Singh and another v. State of Uttar Pradesh (2013) 11 SCC 193 - relied on.

Hariram v. State State of Rajasthan (2009) 13 SCC 193; F Abuzar Hussain @ Guizar Hossain v. State of West Bengal 2012 (9) SCR 244:(2012) 10 SCC 489,; Yakub Abdul Razak Memon v. State of Maharashtra 2013(13) SCC 1; Hakkim v.

State represented through Deputy Superintendent of Police JT (2014) 9 SC 243 - referred to.

Case Law Reference:

(2009) 13 sec 193 Referred to Para 5

293 H

2012 (9) SCR 244 Referred to Para 6

2013(13) sec 1 Referred to Para 6

JT (2014) 9 SC 243 Referred to Para 6

(2013) 11 sec 193 Relied on Para 7

(2010) 1s sec 83 Relied on Para 8, 10

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2621 of 2014.

From the Judgment & Order dated 02.05.2013 of the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur in S.B.

Criminal Appeal No. 446 of 1986.

Mohan Pandey for the Appellant..

Shiv Mangal Sharma, AAG, Ankit Shah, Shrey Kapoor, Ruchi Kohli for the Respondent.

The Order of the Court was delivered

ORDER

1. In this Special Leave Petition, while ordering notice on 20th January, 2014, such notice was confined to the question as to whether the petitioner was a juvenile at the time of the F commission of the offence. By our subsequent order dated 2nd July, 2014, after hearing learned counsel for the petitioner as well as the respondent-State, we directed the Additional

Sessions Judge, Dausa Camp, Jaipur to hold an inquiry to find out as to whether the petitioner was a juvenile on the date of G the commission of the offence i.e. 20th January, 1985. The

learned Sessions Judge was directed to give an opportunity to the petitioner to produce all requisite materials in support of the claim that he was a juvenile on the date of the occurrence and also to call for necessary documents from school authorities H for ascertaining the said question.

2. Pursuant to our order, the learned Sessions Judge after A holding an inquiry has submitted his Report dated 16th October,

2014. After detailed reference to the various materials placed before him, the learned Additional essions Judge, Dausa Camp, Jaipur, Rajasthan has submitted as under:-

"/t is, therefore, having determined the age of petitioner/ B accused Mahesh Jogi son of Parasram, Caste-Jogi, resident of Bagwada, Police Station-Aamer, District- Jaipur(Raj.) order is passed that in Session Case No. 181 86(58185) titled State v. Mahesh, the age of petitioner/ accused on the date of commission of offence i.e.

C 20.01.1985 was about 17 vears 04 months. meaning therebv that he had attained the age of 16 years and therefore he is not a juvenile delinquent."

[underlying is ours] D

3. Leave granted.

4. Having perused the Report of the learned Additional Sessions Judge, we find that the appellant was about 17 years and 4 months as on the date of the occurrence namely 20th January, 1985. The conclusion of the learned Additional E Sessions Judge that since accused-appellant was above 16 years of age he was not a juvenile is not correct. This Court has held in a number of decisions as to what would be the effect of the Juvenile Justice(Care and Protection of Children) Act, 2000 [hereinafter referred to as 'the Act of 2000']. The age of F a juvenile has been amended by which the age which was prescribed as 16 years to be a juvenile was revised as 18 years under the Act of 2000.

5. A question arose as to when conviction came to be G imposed on an accused, prior to the coming into force of the Act of 2000, and a claim as to his status as a juvenile at the subsequent stages as to whether the protection or the benefits can be made available to him as a juvenile by virtue of the coming into force of the Act of 2000. In the decision reported H

A in Hariram v. State of Rajasthan (2009) 13 SCC 193, it was ultimately held:-

" ..... a juvenile who had not completed eighteeen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the B provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act."

6. The said judgment was subsequently followed in the decisions reported in Ajay Kumar v. State of Madhya Pradesh C

(2010) 15 SCC 83, Abuzar Hussain @ Guizar Hossain v.

State of West Bengal (2012) 10 SCC 489, Jitendra Singh alias Babboo Singh and another v. State of Uttar Pradesh(2013) 11 SCC 193 and Yakub Abdul Razak Memon v. State of Maharashtra 2013(13) SCC 1. One of us, Hon'ble Mr. Justice

0 Fakkir Mohamed Ibrahim Kalifulla, in the judgment reported in JT (2014) 9 SC 243 titled Hakkim v. State represented through Deputy Superintendent of Police had occasion to follow the above said principle while dealing with a convict in Criminal Appeal No. 1410 of 2009(one of the three appeals).

E Therefore, after the coming into force of the Act of 2000, a juvenile who had not completed 18 years of age on the date of the commission of the offence was entitled to the benefits of the said Act.

7. Keeping the above legal principle consistently held by F this Court in the above referred to decisions, when we consider the Report of the Additional Sessions Judge, Dausa Camp, Jaipur, Rajasthan, inasmuch as the appellant was only 17 years 4 months on 20th January, 1985, he was entitled for the benefit of the Act of 2000. Since notice was issued in this appeai by G way of special leave confining to the question as to whether the

appellant was entitled for the benefit as a juvenile and by a decision reported in Jitendra Singh's case (supra), it was made clear that such benefit would only enure to the extent of the sentence imposed on the appellant, there is no scope for H interfering with the conviction imposed on the appellant.

8. Therefore, even while affirming the conviction we hold that the appellant was a juvenile and has to be dealt with on that basis for imposition of sentence. We wish to follow the direction issued by this Court in the decision reported in Ajay Kumar's case (supra).

9. Paras 6 of the said decision is reproduced hereunder:-

"6. Rule 98 of the Juvenile Justice (care and Protection of Children Rules, 2007 (hereinafter referred to as "the Juvenile Justice Rules, 2007') provides the procedure as

to how a case of a juvenile who is in conflict with law C should be disposed of The same reads as follows:

"98. Disposed off cases of juveniles in conflict with Jaw - Government or as the case may be the Board may, either suo motu or on an application made for the purpose, review the case of a person or a juvenile in D conflict with law, determine his juvenility in terms f the provisions contained in the Act and Rule 12 of these Rules and pass an appropriate order in the interest of the juvenile in conflict with Jaw under Section 64 of the Act, for the immediate release of the juvenile in conflict with E Jaw whose period of detention or imprisonment has exceeded the maximum period provided in Section 15 of the said Act."

10. In the light of the said decision, the appellant is referred to the Juvenile Justice Board and while setting aside the sentence awarded to him without interfering with the conviction, the Juvenile Justice Board is directed to pass appropriate orders under Section 15 of the Act as regards the sentence to

be undergone by the appellant. The said exercise shall be carried out by the Juvenile Justice Board expeditiously G preferably within one month from the date of receipt of a copy of this order.

11. The appeal stands disposed of on the above terms.

Nidhi Jain Appeal disposed of.