Patel Jayantibhai Shankerdas and Another vs State of Gujarat

Akil Kureshi, J.—The appellant is original accused No. 2 in Sessions Case No. 161 of 1992. He was convicted for offence u/s 307 of IPC by the learned Additional Sessions Judge, Mehsana and sentenced to 3 years of R.I. and fine of Rs. 3,000/-. The appellant has challenged the said judgment before this Court in the present appeal.

Learned advocate Ms. Chetna Shah for the appellant submitted at the outset that the appellant was below 18 years of age when the offence took place and therefore, by virtue of amended provisions of Juvenile Justice (Care and Protection of Children) Act, (hereinafter to be referred to as the said Act). The case of the appellant should have been referred to Juvenile Justice Board and the Judgment under challenge is required to be set aside.

From the material on record, it is clear that the appellant had not completed 18 years of age on the date of the incident. It is recorded by the learned Judge in the impugned Judgment wherein it is observed that the accused was aged 17 years at the time of the incident.

The alleged incident happened on 6.2.1990. As per School Leaving Certificate of the appellant which was produced at Exh.38 before the trial Court he was born on 11.1.1973 and he had just completed 17 years when the incident took place.

It is not in dispute that at the relevant time that term "Juvenile" included those below 16 years of age. However, subsequently by way of amendment in the said Act which is given limited retrospective effect, the age limit has been increased to 18 years.

In a recent decision of Division Bench of this Court dated 27.2.2008 passed in Criminal Appeal No. 885 of 1993, Division Bench had occasion to examine the effect of the provisions contained in Juvenile Justice (Care and Protection of Children) Act, 2000 and the effect of amendments made in the said Act by the amendment Act, 2006. In this regard, the Division Bench made following observations:

8.5 On the facts of the present case the appellant had raised claim of juvenility before the Sessions Court and the Sessions Court has ordered for an inquiry in which it was found that the appellant was of the age of 16 years 8 months and 12 days. However, it appears that after ascertaining the age of the appellant the Sessions Court has not considered the request of referring the matter to Juvenile Court and proceeded to pass the judgement 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.

8.6 However, it is required to be noted that Sub-section (1) 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(1) 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 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[1], it is mandatory for the court to forward the juvenile to the Board for passing appropriate orders.

8.7 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 [1] 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.

8.8 Thus, even in the case of appeal, the determination of juvenility of a juvenile shall be in terms of Section 2[1], even if the juvenile ceases to be so on or before the 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.

9.0 At this stage we may refer to the decision in the case of Upendra Kumar v. 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.

10.5 From the facts of the case and finding given by the Court below Exh.5 (Para 3 of this judgement) it clearly shows that at the time of the incident the age of the appellant was 16 years 8 months and 12 days and therefore the date on which the trial begun, the age of juvenile was 16 years and the appellant was above 16 and the trial court has rightly rejected the request of appellant and proceeded to pass the impugned judgment.

10.6 In view of the discussion herein above and keeping in mind the amended Act and as per Section 20 & (2)(1) of the Act, the age of juvenile is determined at 18 years and admittedly the present appellant was 16 years, 8 months and 12 days at the time of the incident and below the age of 18. As far as the determination of age is concerned, in normal circumstances, we would have referred the matter to trial court but as discussed above, the age of the appellant has already been determined by the Sessions Court and finding is given which reflects in the order below Exh.5. Therefore it would not be necessary to refer the matter to court below for ascertaining the age of appellant as the appellant was below of the age of 18 years at the time of the incident.

10.7 Now the question comes whether the appellant is entitled to the benefit of the Amended Act, especially Section 2(1) and 20 of the Act. As per Clause 2(1) of the amended Act, the age is determined at 18 years at the time of incident, which is made applicable to the pending appeal also inasmuch as the appeal is a continuous proceeding. Therefore we are of the opinion that the appellant is entitled to the benefits of amended Act.

11.0 The next question we are required to consider is whether the matter should be referred to the juvenile court or not. In this regard, we are of the considered opinion that, as held in the case of Upendra Kumar (supra) after a long time of about 17 years, it would not be appropriate to refer the Appellant to the Juvenile Board. Therefore, the conviction is required to be sustained, but the sentence is required to be quashed.

12.0 In the premises aforesaid, we sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Session and at the same time the sentence awarded to the appellant is quashed. The appeal is allowed to the aforesaid extent.

In view of the above decision of the Division Bench, and finding that the facts of the present case are also substantially similar, I find that same course of action is required to be adopted.

The appellant was indisputably below 18 years of age on the date of the incident and his cause would normally, therefore, be referred to Juvenile Justice Board. After such long passage of time, however, the same would not be feasible. Under the circumstances, considering the nature of delinquency found by the Trial Court as also taking into account, the total sentence imposed on him by the impugned Judgment and on the basis of the Division Bench Judgment noted herein above, the sentence imposed by the Court below on the appellant is set aside.

The appeal is disposed of accordingly.