Leave granted.
Challenge in this appeal is mainly to the award of
sentence to the appellant on his conviction for an offence
under Section 302 read with Section 149 of the Indian Penal
Code, 1860. On conviction, the Sessions Judge sentenced
the appellant to undergo imprisonment for life and to pay a
fine of Rs.2,000/- with the default stipulation. By the
impugned order, the High Court has affirmed the decision of
the Trial Court.
Since in this appeal we propose to deal only with the
legal proposition urged on behalf of the appellant, we deem
it unnecessary to state, in detail, the case of the
prosecution against the appellant which resulted in his
conviction. It would suffice to note that the incident in
which the appellant is stated to have participated, took
place on 28th August, 2002.
Learned counsel appearing on behalf of the appellant
has challenged the conviction of the appellant mainly on
the ground that on the date of occurrence, the appellant
was a juvenile and therefore, he should have been tried
under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (“the Juvenile Justice
Act” for short). Although it is conceded by learned
counsel for the appellant that this point was not
specifically raised either before the Trial Court or the
High Court but he submits that in the light of the
provision contained in Section 7A of the Juvenile Justice
Act, the question about juvenility of the appellant can be
gone into even at this stage. Learned counsel has also
pointed out that in fact the High Court was aware of the
fact that the appellant had not completed eighteen years of
age as on the date of alleged commission of offence and
was, thus, a “juvenile” inasmuch as the fact of his being
confined in Borstal Jail, Ludhiana, meant for housing a
juvenile in conflict with law was mentioned in the
application filed for grant of bail. It was, therefore,
obligatory for the High Court to hold an inquiry itself for
determination of the question of age of the appellant or
cause an inquiry to be conducted and seek a report
regarding the same.
Having bestowed our anxious consideration to the
facts before us, we are of the opinion that the appeal
commends acceptance.
Section 7A, inserted in the Juvenile Justice Act with
effect from 22nd August, 2006 reads as follows:
“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 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 orders and the
sentence, if any, passed by a court shall be
deemed to have no effect.”
It is manifest from a fair reading of proviso to sub-
section (1) that a claim of juvenility can be raised at any
stage and even after the final disposal of the case. In
that view of the matter, the appellant is entitled to raise
before us claim of juvenility at the relevant time. It
appears to us that in view of a recent decision of a three
Judge Bench of this Court in Pawan Vs. State of Uttaranchal
JT (2009) 3 SC 87, the issue is no longer res-integra. In
the said decision, taking note of the observations in the
case of Gurpreet Singh Vs. State of Punjab (2005) 12 SCC
615, wherein entertaining the issue whether the accused was
a juvenile under the Juvenile Justice Act, 1986, raised for
the first time before it, this Court, had laid down the
procedure to be followed in such a situation, one of us,
R.M. Lodha, J., speaking for the Court has observed thus:
“Where the materials placed before this Court by
the accused, prima facie, suggest that the
accused was `juvenile' as defined in the Act,
2000 on the date of incident, it may be necessary
to call for the report or an enquiry be ordered
to be made. However, in a case where plea of
juvenility is found unscrupulous or the materials
lack credibility or do not inspire confidence and
even, prima facie, satisfaction of the court is
not made out, we do not think any further
exercise in this regard is necessary. If the plea
of juvenility was not raised before the trial
court or the High Court and is raised for the
first time before this Court, the judicial
conscience of the court must be satisfied by
placing adequate and satisfactory material that
the accused had not attained age of eighteen
years on the date of commission of offence; sans
such material any further enquiry into juvenility
would be unnecessary”. (Emphasis supplied by us)
Thus, the short question for consideration is as to
whether adequate material is available on record to hold
that the appellant had not attained age of eighteen years
on the date of commission of offence and could, thus, be
treated as a “juvenile” within the meaning of Section 2(k)
of the Juvenile Justice Act?
When the matter came up for hearing on 15th December,
2008, counsel for the State was asked to seek instructions
as to whether any inquiry had been conducted with regard to
the age of the appellant as on the date of the commission
of the offence, particularly in the light of the school
register and Transfer Certificate issued by Rama Montessori
Junior Basic Vidayalaya Samiti, Nawabganj, Gonda (U.P.).
Pursuant to and in furtherance of the said order, an
affidavit has been filed by the Deputy Superintendent of
Police, Garhshankar, District Hoshiarpur. In the said
affidavit, it is stated that upon making inquiries from the
Principal of the aforementioned School, Certificate dated
15th December, 1987 has been found to be genuine. It is
further stated that as per the inquiries made, the
appellant had studied in the said School from Class I to V
during the period 1994-1999 and as per the school records,
his date of birth is 15th December, 1987. Thus, in view of
the said report, filed on affidavit, which is not
questioned by learned counsel for the State, the age of the
appellant as on the date of occurrence was about 15 years.
The inquiry report, which inspires confidence,
unquestionably establishes that as on the date of
occurrence, the appellant was below the age of eighteen
years; was thus, a “juvenile” in terms of the Juvenile
Justice Act and cannot be denied the benefit of the
provisions of the said Act. Therefore, having been found
to have committed the aforementioned offence, for the
purpose of sentencing, he has to be dealt with in
accordance with the provisions contained in Section 15
thereof. As per clause (g) of sub-section (1) of Section
15 of the Juvenile Justice Act, the maximum period for
which the appellant could be sent to a special home is a
period of three years.
Under the given circumstances, the question is what
relief should be granted to the appellant at this juncture.
Indisputably, the appellant has been in prison for the last
many years and, therefore, at this distant time, it will
neither be desirable nor proper to refer him to the
Juvenile Justice Board. Accordingly, we follow the course
adopted in Bhola Bhagat Vs. State of Bihar (1997) 8 SCC
720; sustain the conviction of the appellant for the
offence for which he has been found guilty by the Sessions
Court, as affirmed by the High Court and at the same time
quash the sentence awarded to him.
Resultantly, the appeal is partly allowed to the
extent indicated above. We direct that the appellant shall
be released forthwith, if not required in any other case.
[ D.K. JAIN ]
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 475 OF 2009
VERSUS
ORDER
It has now been brought to our notice that vide order dated
February 09, 2009, it was directed that the appellant shall be released on
bail on his furnishing a personal bond in the sum of Rs.10,000/- with one
surety in the like amount to the satisfaction of the trial Court. In view of
the said order, we direct that if the appellant has already furnished
personal bond and a surety in terms of the said order, the same shall stand
discharged.
[ D.K. JAIN ]
[ R.M. LODHA ]