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').
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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
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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).
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(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
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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
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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
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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,
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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
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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
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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
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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:
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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
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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
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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.
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