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Thursday, August 11, 2011

On 01.05.1999, at about 8.30 p.m., one Santosh Kumar (since deceased) along with his servant was returning to his house with daily earning cash from his shop. When he reached near the hospital of Dr. Desh Pandey at Ahmednagar, two unknown persons came on a Motorcycle and demanded the money bag which was in his hand but he refused to give that bag. Thereafter, the pillion rider got down from the Motorcycle and threatened to kill him if the bag is not given and taken out a revolver which was kept underneath his shirt and fired which resulted in injury on his chest. In spite of the injury, the deceased ran towards his residence which was nearer to the scene of occurrence but dashed against the window and fell down. His relatives came out and took him to the Hospital where he was declared dead at about 9.05 p.m. writ petition, indian penal code, constitution of india, state of maharashtra, and supreme court of india.


                                                             REPORTABLE

                                                           

               IN THE SUPREME COURT OF INDIA


               CRIMINAL ORIGINAL JURISDICTION


         WRIT PETITION (CRIMINAL) NO. 16  OF 2010




Amit Singh                                               .... Petitioner(s)



             Versus



State of Maharashtra & Anr.                            .... Respondent(s)





                            J U D G M E N T


P. Sathasivam, J.


1)    The petitioner has filed this writ petition under Article 32



of   the   Constitution   of   India   praying   for   issuance   of   an



appropriate   writ   in   the   nature   of  habeas  corpus  directing   the



respondents   to   release   him   from   Central   Jail,   Agra   forthwith



as   the   detention   is   contrary   to   the   fundamental   rights



guaranteed   under   Article   21   of   the   Constitution   of   India   and



the   Juvenile   Justice   (Care   and   Protection   of   Children)   Act,



2000 (hereinafter referred to as `the Act').





                                                                               1


2)   The facts of the case are:



(a)    On 01.05.1999, at about 8.30 p.m., one Santosh Kumar



(since   deceased)   along   with   his   servant   was   returning   to   his



house   with   daily   earning   cash   from   his   shop.     When   he



reached near the hospital of Dr. Desh Pandey at Ahmednagar,



two   unknown   persons   came   on   a   Motorcycle   and   demanded



the money  bag which was  in his  hand but he refused to give



that   bag.     Thereafter,   the   pillion   rider   got   down   from   the



Motorcycle   and   threatened   to   kill   him   if   the   bag   is   not   given



and taken out a revolver which was kept underneath his shirt



and fired which resulted in injury on his chest.   In spite of the



injury,   the   deceased   ran   towards   his   residence   which   was



nearer   to   the   scene   of   occurrence   but   dashed   against   the



window and fell down.  His relatives came out and took him to



the Hospital where he was declared dead at about 9.05 p.m.



(b)      A complaint was registered by the police bearing Crime



Case   No.   I-96/1999   under   Sections   307,   392,   341,   34,   506



read   with   34   of   the   Indian   Penal   Code,   1860   (hereinafter



referred  to   as   "the   IPC")   and   Sections   3,   5,   25   and   27   of  the



Arms   Act,   1959.     The   Investigating   Officer   arrested   the




                                                                                  2


accused   persons   namely,   Balu   Rangnath   Chintamani,   Vithal



Ramayya   Madur,   Intekhab   Alam  Abdul   Salam  Sain  and  Amit



Singh   Thakur,   the   petitioner   herein,   and   Sessions   Case   No.



150   of   1999   was   registered   against   the   said   four   accused   in



the Sessions Court, Ahmednagar.  



(c)    The   Additional   Sessions   Judge,   Ahmednagar,   vide   order



dated   16.04.2001   held   all   the   four   accused   persons   to   be



guilty   of   offences   punishable   under   Sections   396,   506,   341,



379   read   with   Section   120-B   of   IPC   and   sentenced   each   of



them   to   suffer   life   imprisonment   and   to   pay   a   fine   of



Rs.3000/- and also under Section 3 read with Section 25(1-B)



and Section 5 read with Section 27 of the Arms Act, 1959 and



sentenced   them   to   suffer   rigorous   imprisonment   for   5   years



and to pay a fine of Rs.3000/-.  



(d)    Against   the   said   judgment,   all   the   four   accused   filed



appeals before the High Court.   The High Court, by judgment



dated   05.08.2005,   allowed   the   appeals   filed   by   A-2   and   A-3



and   dismissed   the   appeals   filed   by   A-1   and   A-4   (appellant



herein).





                                                                            3


(e)    Challenging   the   said   judgment   of   the   High   Court,   the



appellant   filed   Special   Leave   Petition   (Crl.)   No.   1114   of   2006



before this Court which was dismissed on 05.01.2007.



3)     Heard   Mr.   Brijender   Chahar,   learned   senior   counsel   for



the petitioner and Mr. Shankar Chillarge, learned counsel for



the   State-respondent   No.1   and   Mr.   Ameet   Singh,   learned



counsel for respondent No.2.



4)     This writ petition is filed by the petitioner praying that he



was a Juvenile at the time of the alleged offence and therefore,



he could be tried only by the Juvenile Justice Board (in short



`the Board').



5)     According   to   the   petitioner,   he   had   not   completed   18



years of age as on the date of commission of the offence, i.e.,



01.05.1999,   though   he   had   completed   18   years   as   on



01.04.2001   i.e.   the   date   of   implementation   of   the   Act.



According to amending Act 33/2006 in the Act, the benefit of



juvenility   shall   be   extended   to   the   petitioner.     It   was   further



stated   that   he   is   entitled   to   get   the   benefit   of   the   said   law,



which was after due consideration by this Court in the case of


Hari   Ram  vs.  State   of   Rajasthan   and   Others,   (2009)   13




                                                                                   4


SCC 211 settled the position, whereby this Court gave effect to



the Proviso and the Explanation to Sections 20 and 7A which



were introduced  by the above said Amending Act by applying



the provisions of the Act with retrospective effect.  Accordingly,



it is prayed that the petitioner is entitled to get the benefit of



the Act, even after final conviction.



6)    We   have   already   adverted   to   in   the   earlier   paras



regarding the petitioner's involvement in the criminal charges



framed   against   him   and   the   orders   of   conviction   imposed.



From   the   materials,   it   is   seen   that   the   petitioner   Amit   Singh



s/o   late   Bhikamsingh   Thakur   was   born   on   10.05.1982   in



Jhansi,   U.P.   and   his   date   of   birth   is   registered   with   the



Registrar,   Births   and   Death,   Nagar   Palika   Parishad,   Jhansi.



According to the record of Nagar Palika Parishad, Jhansi, the



date   of   birth   certificate   of   the   petitioner   is   recorded   as



10.05.1982   bearing   registration   No.   1184/97   dated



04.08.1997.     The   petitioner   has   produced   a   copy   of   birth



certificate (Annexure-P1) issued by the Registrar, Nagar Palika



Parishad, Jhansi.   A perusal of the birth certificate issued by





                                                                              5


the competent authority clearly shows that his date of birth is



10.05.1982.



7)    Further information from the materials placed shows that



the   petitioner   started   his   studies   from   St.   Mark's   College,



Jhansi   w.e.f.   12.06.1985.     He   left   the   school   on   27.05.1996



and obtained a Transfer Certificate mentioning that his date of



birth   is   recorded   as   10.05.1982   in   the   admission   register   of



the   school.     Transfer   Certificate   dated   14.06.1997   issued   by



the Principal,  St. Mark's  College, Jhansi has been marked as



Annexure-P2.  A perusal of the said Transfer Certificate clearly



shows that his date of birth is 10.05.1982 and the same was



duly   noted   by   the   School   Authorities   with   the   seal   and



signature   of   the   Principal,   St.   Mark's   College,   Jhansi.     Apart



from the above materials, when the petitioner was arrayed as



accused in Criminal Case No. 64 of 1997 entitled  Amit Singh



vs.  State   of   M.P.  he   moved   an   application   for   bail   being   No.



935   of   1997   before   the   Special   Judge,   Murena,   M.P.     The



learned   Special   Judge   considered   the   above-mentioned   High



School   Certificate,   birth   certificate,   report   of   Civil   Surgeon,



report   of   Dental   Surgeon,   affidavit   of   his   mother   Shakuntala




                                                                             6


Bai and report of Radiologist.  The Special Judge, relying upon



the   above-mentioned   reports,   found   that   the   date   of   birth   of



the   petitioner   is   10.05.1982   and   his   age   was   below   16   years



on the date of occurrence, directed the police to produce him



before the Juvenile Court for further action.   Copy of the said



order dated 13.08.1987 passed by the Special Judge, Murena



is   placed   before   this   Court   (Annexure-P3).     A   perusal   of   the



order   of   the   Special   Judge,   Murena   also   shows   that



considering   various   materials   relating   to   the   date   of   birth   of



the petitioner,  he had concluded that the date of birth  of the



petitioner is 10.05.1982 and the alleged incident took place on



01.05.1999,   on   the   date   of   the   occurrence,   the   age   of   the



petitioner was 16 years 11 months and 21 days.  The Act came



into   effect   from   01.04.2001   which   provides   that   juvenile



means who has not completed 18 years of age as substituted



for 16 years which was the position under the old Act of 1986.



According to the Act, the petitioner was juvenile at the time of



commission of offence because he had not completed 18 years



of   age   on   the   date   of   offence,   and   therefore,   the   petitioner   is



entitled to get the benefit of provisions under Sections 2(l), 7A,




                                                                                  7


20 and 64 of the Act.



8)    The   petitioner-(A-4)   was   convicted   for   the   offence   under



Sections 307, 392, 341, 34, 506 read with Section 34 IPC and



Sections 3, 5, 25 and 27 of the Arms Act and sentenced him to



life  imprisonment   with  fine  of  Rs.3,000/-.   Though  the  above



said   conviction   and   sentence   was   confirmed   by   this   Court,



vide  its impugned  judgment  and order  dated  05.01.2007, the



age   of   the   petitioner   and   the   benefit   of   the   Act   was   not



considered by this Court.   No doubt, this plea and the benefit



was not claimed by the petitioner earlier neither the same was



raised   before   the   trial   Court   nor   thereafter   up   to   this   Court.



We have already observed that from the materials placed, the



petitioner had substantiated that he was a juvenile as per the



Act   and   he   could   be   tried   only   by   the   Board   and   hence   the



matter   should   be   referred   before   the   Board   for   trial.     It   is



further seen that the proceedings were started against him on



01.05.1989 before the regular Court and during the pendency



of   the   trial,   the   Act   was   enacted   and   it   is   his   claim   that



inadvertently he was not advised that he is entitled to get the



benefit   under   the   Act   after   the   enactment   because   he   had




                                                                               8


already completed the age of 18 years as on 01.04.2001.  It is



relevant   to   point   out   that   the   applicability   of   the   Act   was



clarified   by   Amending   Act   33/2006   which   provided   that   the



benefit of juvenility shall be extended even to juvenile who had



completed the age of 18 years on 01.04.2001 and the Act shall



have retrospective effect.



9)    The   relief   prayed   for   in   this   writ   petition   is   squarely



covered by the law laid down in the case of Hari Ram  (supra)



whereby   this   Court   had   occasion   to   consider   the   question



elaborately   regarding   applicability   of   the   Act.     This   Court



considered the decision of the Constitution Bench in the case



of  Pratap   Singh  vs.  State   of   Jharkhand   &   Anr.,   (2005)   3



SCC   551,   wherein   this   Court   formulated   two   points   for



consideration:



      A.     Whether   the   date   of   occurrence   will   be   the



             reckoning date for determining the age of the alleged



             offender as juvenile offender or the date when he is



             produced in the Court/Competent Authority?



      B.     Whether   the   Act   of   2000   will   be   applicable   in   the



             case   a   proceeding   is   initiated   under   the   1986   Act




                                                                             9


              and   pending   when   the   Act   of   2000   was   enforced



              with effect from 01.04.2001?



The Constitution Bench in the above case held that the benefit



of   juvenility   cannot   be   extended   to   the   person   who   has



completed the 18 years of age as on 01.04.2001 i.e. the date of



enforcement of  the Act.   In the  background  of this judgment,



the Legislature brought Amendment Act 33/2006 proviso and



explanation   in   Section   20   to   set   at   rest   doubts   that   have



arisen   with  regard   to  the  applicability   of  the   Act  to  the  cases



pending   on   01.04.2001,   where   a   juvenile,   who   was   below   18



years   of   age   at   the   time   of   commission   of   the   offence,   was



involved.     The   explanation  to   Section  20   which  was  added  in



2006   makes   it   clear   that   in   all   pending   cases,   which   would



include   not   only   trials   but   even   subsequent   proceedings   by



way  of  revision  or appeal, the  determination  of  juvenility   of  a



juvenile   would   be   in   terms   of   clause   (l)   of   Section   2,   even   if



juvenile ceased to be a juvenile on or before 01.04.2001, when



the   Act   came   into   force   and   the   provisions   of   the   Act   would



apply as if the said provision had been in force for all purposes



and   for   all   material   times   when   the   alleged   offence   was




                                                                                   10


committed.     Section   20   enables   the   Court   to   consider   and



determine   the   juvenility   of   a   person   even   after   conviction   by



the   regular   court   and   also   empowers   the   court,   while



maintaining the conviction, to set aside the sentence imposed



and   forward   the   case   to   the   Board   concerned   for   passing



sentence in accordance with the provisions of the Act.



10)    After the judgment of the Constitution Bench in  Pratap


Singh  (supra),   this   Court   in   the   case   of  Hari   Ram  (supra)


considered   the   above   question   of   law   in   the   light   of



Amendment Act 33 of 2006 in the provisions of the Act which



substituted   Section   2(l)   to   define   a   "juvenile   in   conflict   with



law" as a "juvenile who is alleged to have committed an offence



and   has   not   completed   18   years   of   age   as   on   the   date   of



commission   of   such   offence".     By   way   of   Amendment   Act



33/2006, Section 7A was inserted which 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:





                                                                                     11


             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. "





It   is   clear   from   the   above   provision,   namely,   Section   7A   the



claim of  juvenility  to be  raised before any court at any stage,



even after final disposal of the case and sets out the procedure



which   the   court   is   required   to   adopt,   when   such   claim   of



juvenility is raised.  Apart from the aforesaid provisions of the



Act as amended, and the Juvenile Justice (Care and Protection



of   Children)   Rules,   2007,   (in   short   `the   Rules')   Rule   98,   in



particular, has to be read along with Section 20 of the Act as



amended   by   the   Amendment   Act,   2006   which   provides   that



even   after   disposal   of   cases   of   juveniles   in   conflict   with   law,



the State Government or  the Board could,  either  suo motu  or



on   an   application   made   for   the   purpose,   review   the   case   of



juvenile,   determine   the   juvenility   and   pass   an   appropriate





                                                                                         12


order under Section 64 of the Act for immediate release of the



juvenile whose period of detention had exceeded the maximum



period   provided  in   Section   15   of   the   Act   i.e.   3  years.     All   the



above relevant provisions including the amended provisions of



the Act and the Rules have been elaborately considered by this



Court in Hari Ram (supra).



11)    We have already referred to the entry relating to the date



of birth of the petitioner in the Birth Certificate (Annexure-P1),



entry   relating   to   his   date   of   birth   in   the   Transfer   Certificate



(Annexure-P2), date of birth recorded in the mark sheet issued



by the Council for the Indian School Certificate Examinations.



In all these documents, his date of birth has been recorded as



10.05.1982   and   duly   certified   and   authenticated   by   the



authorities concerned.  In a recent decision of this Court dated



05.08.2011 in Criminal Appeal No. 1531 of 2011 arising out of



SLP   (Criminal)   No.   3361   of   2011,  Shah   Nawaz  vs.  State   of


U.P.  while   considering   similar   documents,   namely,   certificate


issued  by the School Authorities and basing reliance on Rule



12 of the Rules held that all those documents are relevant and



admissible in evidence.   Inasmuch as the date of birth of the




                                                                                   13


petitioner is 10.05.1982 and on the date of the alleged incident



which   took   place   on   01.05.1999,   his   age   was   16   years,   11



months and 21 days i.e. below 18 years, hence on the date of



the incident, the petitioner was a juvenile in terms of the Act



because he had not completed 18 years of age and is entitled



to get the benefit of provisions under Sections 2(l), 7A, 20 and



64 of the Act.  It is also specifically asserted that the petitioner



had   already   undergone   12   years   in   jail   since   then   which   is



more   than   the   maximum   period   for   which   a   juvenile   may   be



confined to a special home.



12)    Under   these   circumstances,   the   petitioner   is   directed   to



be   released   from   the   custody   forthwith.     The   writ   petition   is



allowed.                




                                       .................................................J.

                                        (P. SATHASIVAM)

                                                             

                                     

                                       ...............................................J.

                                       (DR. B.S. CHAUHAN)

NEW DELHI;

AUGUST 08, 2011.                





                                                                             14