whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act, albeit sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act.
We would again record that Satya Deo was less than 18 years of age on the date of commission of offence and this remains undisputed and unchallenged. 20. Satya Deo has undergone incarceration for more than 2 years thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum and nature of punishment which should be given to a person who was a juvenile on the date of commission of offence, this court, while placing reliance upon an earlier decision in Jitendra Singh v. State of Uttar Pradesh11 , had held: 22. It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. What kind of order could be passed in a matter where claim of juvenility came to be accepted in a situation similar to the present case, was dealt with by this Court in Jitendra Singh v. State of U.P. [Jitendra Singh v. State of U.P., (2013) 11 SCC 193 : (2013) 4 SCC (Cri) 725] in the following terms: (SCC pp. 210-11, para 32) “32. A perusal of the “punishments” provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him [clause (a)] is hardly a “punishment” that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to 11 (2013) 11 SCC 193 Criminal Appeal No. 860 of 2019 Page 22 of 24 expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986.” 21. Following the aforesaid ratio and the legal position elucidated above, while we uphold the conviction of Satya Deo, we would set aside the sentence of life imprisonment. We would remit the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased. We make no affirmative or negative comments either way on the order/direction under Section 15 of the 2000 Act. 22. We would, accordingly, direct the jail authorities to produce Satya Deo before the Board within seven days from the date of receipt of a copy of this judgment. The Board shall then pass appropriate order regarding detention and custody and proceed thereafter to pass order/directions under the 2000 Act. Criminal Appeal No. 860 of 2019 Page 23 of 24 23. The appeal filed by the Satya Deo is partly allowed in the aforesaid terms and all the pending application are disposed of.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 860 OF 2019
SATYA DEO @ BHOOREY ..... APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH ..... RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
By the order dated 17.08.2018, the Special Leave Petition,
challenging the judgment dated 20.4.2018 of the Lucknow Bench
of the Allahabad High Court, filed by Keshav Ram and Ram Kuber
was dismissed, albeit in the case of co-accused Satya Deo@
Bhoorey notice was issued on the plea of juvenility. The impugned
judgment had confirmed the conviction of Keshav Ram, Ram
Kuber and Satya Deo by the trial court in FIR No. 156/1981 dated
11.12.1981 Police Station Gilaula, Distt. Bahraich, Uttar Pradesh
for the offence under Section 302 read with section 34 of the
Indian Penal Code, 1860 (‘IPC’ for short) and the order of
sentence directing them to undergo imprisonment for life.
Criminal Appeal No. 860 of 2019 Page 1 of 24
2. By order dated 02.05.2019 leave was granted in the case of Satya
Deo.
3. By order dated 22.11.2019 the trial court was directed to conduct
an inquiry to ascertain if Satya Deo was a juvenile on the date of
occurrence i.e. 11.12.1981, on the basis of material which would
be placed on record.
4. Pursuant to the directions, the First Additional District and
Sessions Judge, Bahraich, Uttar Pradesh has conducted an
inquiry and submitted the report dated 06.03.2020. As per the
report, the date of birth of Satya Deo is 15.4.1965. Accordingly, he
was 16 years 7 months and 26 days of age on the date of
commission of the offence i.e. 11.12.1981. The report relies on the
Transfer Certificate (in original) issued by Ram Narayan Singh
Inter College, Ramnagar Khajuri, Bahraich, and the Admission
Register of Primary School, Pairi, which documents were proved
by Sh. Krishn Deo, Clerk at Ram Narayan Singh Inter College,
Ramnagar Khajuri, Bahraich, and Smt. Anupam Singh, in-charge
head-mistress of Primary School, Pairi, respectively. Further,
Satya Deo had appeared in class-10 examination vide Roll. No.
9020777, and his date of birth as recorded in the gazette relating
to this examination is 15.04.1965.
Criminal Appeal No. 860 of 2019 Page 2 of 24
5. The report states that the complainant had died and consequently
notice was served on the heirs of the complainant, who did not
appear before the First Additional District and Sessions Judge,
Bahraich. The prosecution had not led any evidence.
6. The date of birth of Satya Deo is undisputed and not challenged
before us.
7. Notwithstanding this finding, the First Additional District and
Sessions Judge, Bahraich has observed that Satya Deo was not a
juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he
was more than 16 year of age on the date of commission of the
offence i.e. 11.12.1981.
8. The conundrum is in light of the definition of ‘juvenile’ under the
1986 Act, which was below sixteen years in case of a boy and
below eighteen years in case of a girl on the date the boy or girl is
brought for first appearance before the court or the competent
authority, whereas the 2000 Act, as noticed below, does not
distinguish between a boy or girl and a person under the age of
eighteen years is a juvenile. Further, under the 2000 Act, the age
on the date of commission of the offence is the determining factor.
Criminal Appeal No. 860 of 2019 Page 3 of 24
9. In light of the conflicting views expressed by this Court on
application of the 2000 Act to the pending proceedings, vide
decisions in Arnit Das v. State of Bihar1
and Umesh Chandra v.
State of Rajasthan2
, the matter was referred to a Constitution
Bench and decided in the case reported as Pratap Singh v. State
of Jharkhand and Another3
. The Constitution Bench formulated
two points for decision, namely:
“(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 and
pending when the Act of 2000 was enforced with
effect from 1-4-2001.”
On the second question, the Constitution Bench held that
the 2000 Act would be applicable in a pending proceeding
instituted under the 1986 Act in any court or authority, if the person
had not completed eighteen years of age as on 1st April 2001,
when the 2000 Act came into force. On the first question, it was
held that the reckoning date for the determination of the age of the
juvenile is the date of the offence and not the date when he is
produced before the authority or in a court. Consequently, the
2000 Act would have prospective effect and not retrospective
1 (2000) 5 SCC 488
2 (1982) 2 SCC 202
3 (2005) 3 SCC 551
Criminal Appeal No. 860 of 2019 Page 4 of 24
effect except in cases where the person had not completed the
age of eighteen years on the date of commencement of the 2000
Act. Other pending cases would be governed by the provisions of
the 1986 Act.
10. Subsequent to the decision of the Constitution Bench in Pratap
Singh (supra), several amendments were made to the 2000 Act
by the Amendment Act No. 33 of 2006. These amendments are
significant, but first we will begin by referring to Section 2(l) of the
2000 Act which defines “juvenile in conflict with law” as:
“(l) "juvenile in conflict 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”
In terms of clause (l) to section 2 of the 2000 Act, Satya
Deo, being less than 18 years of age, was juvenile on the date of
commission of offence.
11. Section 20 of the 2000 Act, which provides a special provision in
respect of pending cases, post the amendment vide Act 33 of
2006, reads:
“20. Special provision in respect of pending cases.—
Notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any
court in any area on the date on which this Act
comes into force in that area, shall be continued in
that court as if this Act had not been passed and if
Criminal Appeal No. 860 of 2019 Page 5 of 24
the court finds that the juvenile has committed an
offence, it shall record such finding and instead of
passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass
orders in respect of that juvenile in accordance with
the provisions of this Act as if it had been satisfied on
inquiry under this Act that a juvenile has committed
the offence:
Provided that the Board may, for any adequate and
special reason to be mentioned in the order, review
the case and pass appropriate order in the interest of
such juvenile.
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 (l) 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.”
Section 20 is a special provision with respect to pending
cases and begins with a limited non-obstante or overriding clause
notwithstanding anything contained in the 2000 Act. Legislative
intent clearly expressed states that all proceedings in respect of a
juvenile pending in any court on the date on which the 2000 Act
came into force shall continue before that court as if the 2000 Act
had not been passed. Though the proceedings are to continue
before the court, the section states that if the court comes to a
finding that a juvenile has committed the offence, it shall record
Criminal Appeal No. 860 of 2019 Page 6 of 24
the finding but instead of passing an order of sentence, forward
the juvenile to the Juvenile Justice Board (Board) which shall then
pass orders in accordance with the provisions of the 2000 Act, as
if the Board itself had conducted an inquiry and was satisfied that
the juvenile had committed the offence. The proviso however
states that the Board, for any adequate and special reasons, can
review the case and pass appropriate order in the interest of the
juvenile. Explanation added to Section 20 vide Act 33 of 2006,
which again is of significant importance, states that the court
where ‘the proceedings’ are pending ‘at any stage’ shall determine
the question of juvenility of the accused. The expression ‘all
pending cases’ includes not only trial but even subsequent
proceedings by way of appeal, revision etc. or any other criminal
proceedings. Lastly, 2000 Act applies even to cases where the
accused was a juvenile on the date of commission of the offence,
but had ceased to be a juvenile on or before the date of
commencement of the 2000 Act. In even such cases, provisions of
the 2000 Act are to apply as if these provisions were in force for all
purposes and at all material time when the offence was
committed.
Thus, in respect of pending cases, Section 20 authoritatively
commands that the court must at any stage, even post the
judgment by the trial court when the matter is pending in appeal,
Criminal Appeal No. 860 of 2019 Page 7 of 24
revision or otherwise, consider and decide upon the question of
juvenility. Juvenility is determined by the age on the date of
commission of the offence. The factum that the juvenile was an
adult on the date of enforcement of the 2000 Act or subsequently
had attained adulthood would not matter. If the accused was
juvenile, the court would, even when maintaining conviction, send
the case to the Board to issue direction and order in accordance
with the provisions of the 2000 Act.
12. By the amendment Act No. 33 of 2006, Section 7-A was inserted
in the 2000 Act setting-out the procedure to be followed by the
court to determine the claim of juvenility. Section 7A, which came
into effect on 22.08.2006, reads:
“7-A. 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 enquiry, 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.
Criminal Appeal No. 860 of 2019 Page 8 of 24
(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 order, and the sentence if any,
passed by a court shall be deemed to have no
effect.”
Proviso to Section 7A is important for our purpose as it states that
the claim of juvenility may be raised before ‘any court’ ‘at any
stage’, even after the final disposal of the case. When such claim
is made, it shall be determined in terms of the provisions of the
2000 Act and the rules framed thereunder, even when the
accused had ceased to be a juvenile on or before commencement
of the 2000 Act. Thus it would not matter if the accused, though a
juvenile on the date of commission of the offence, had become an
adult before or after the date of commencement of the 2000 Act
on 01.04.2001. He would be entitled to benefit of the 2000 Act.
13. Section 64 of the 2000 Act was also amended by Act No. 33 of
2006 by incorporating a proviso and explanation and by replacing
the words ‘may direct’ with the words ‘shall direct’ in the main
provision. Post the amendment, Section 64 reads as under:
“64. Juvenile in conflict with law undergoing sentence
at commencement of this ActIn any area in which this Act is brought into
force, the State Government shall direct that a
juvenile in conflict with law who is undergoing any
sentence of imprisonment at the commencement of
Criminal Appeal No. 860 of 2019 Page 9 of 24
this Act, shall, in lieu of undergoing such sentence,
be sent to a special home or be kept in fit institution
in such manner as the State Government thinks fit
for the remainder of the period of the sentence; and
the provisions of this Act shall apply to the juvenile as
if he had been ordered by the Board to be sent to
such special home or institution or, as the case may
be, ordered to be kept under protective care under
sub-section (2) of section 16 of this Act.
Provided that the State Government, or as the
case may be the board, may, for any adequate and
special reason to be recorded in writing, review the
case of a juvenile in conflict with law undergoing a
sentence of imprisonment, who has ceased to be so
on or before the commencement of this Act , and
pass appropriate order in the interest of such
juvenile.
Explanation :– In all cases where a juvenile in
conflict with law is undergoing a sentence of
imprisonment at any stage on the date of
commencement of this Act, his case including the
issue of juvenility, shall be deemed to be decided in
terms of clause (l) of section 2 and other provisions
contained in this act and the rules made thereunder,
irrespective of the fact that he ceases to be a juvenile
on or before such date and accordingly he shall be
sent to the special home or a fit institution, as the
case may be, for the remainder of the period of the
sentence but such sentence shall not in any case
exceed the maximum period provided in section 15
of this act.”
Substitution of the words ‘may direct’ with ‘shall direct’ in the
main provision is to clarify that the provision is mandatory and not
directory. Section 64 has to be read harmoniously with the newly
added proviso and explanation and also other amendments made
vide Act 33 of 2006 in Section 20 and by way of inserting Section
7A in the 2000 Act. The main provision states that where a
juvenile in conflict with law is undergoing any sentence of
Criminal Appeal No. 860 of 2019 Page 10 of 24
imprisonment at the commencement of the 2000 Act, he shall, in
lieu of undergoing the sentence, be sent to a special home or be
kept in a fit institution in such manner as the state government
thinks fit for the remainder of the period of sentence. Further, the
provisions of the 2000 Act are to apply as if the juvenile had been
ordered by the Board to be sent to the special home or institution
and ordered to be kept under protective care under sub-section
(2) of Section 16 of the Act. The proviso states that the state
government or the Board, for any adequate and special reasons to
be recorded in writing, review the case of the juvenile in conflict
with law who is undergoing sentence of imprisonment and who
had ceased to be a juvenile on or before the commencement of
the 2000 Act and pass appropriate orders. However, it is the
explanation which is of extreme significance as it states that in all
cases where a juvenile in conflict with law is undergoing a
sentence of imprisonment on the date of commencement of the
2000 Act, the juvenile’s case including the issue of juvenility, shall
be deemed to be decided in terms of clause (l) to Section 2 and
other provisions and rules made under the 2000 Act irrespective of
the fact that the juvenile had ceased to be a juvenile. Such
juvenile shall be sent to special home or fit institution for the
remainder period of his sentence but such sentence shall not
exceed the maximum period provided in Section 15 of the 2000
Criminal Appeal No. 860 of 2019 Page 11 of 24
Act. The statute overrules and modifies the sentence awarded,
even in decided cases.
14. This Court in Dharambir v. State (NCT of Delhi) and Another4
had analysed the scheme and application of the 2000 Act to the
accused who were below the age of eighteen years on the date of
commission of offence which was committed prior to the
enactment of the 2000 Act, to opine and hold:
“14. Proviso to sub-section (1) of Section 7-A
contemplates that a claim of juvenility can be raised
before any court and has to be recognised at any
stage even after disposal of the case and such claim
is required to be determined in terms of the
provisions contained in the Act of 2000 and the Rules
framed thereunder, even if the juvenile has ceased to
be so on or before the date of the commencement of
the Act of 2000. The effect of the proviso is that a
juvenile who had not completed eighteen years of
age on the date of commission of the offence would
also be entitled to the benefit of the Act of 2000 as if
the provisions of Section 2(k) of the said Act, which
defines “juvenile” or “child” to mean a person who
has not completed eighteenth year of age, had
always been in existence even during the operation
of the 1986 Act.
15. It is, thus, manifest from a conjoint reading of
Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000,
read with Rules 12 and 98 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 that all
persons who were below the age of eighteen years
on the date of commission of the offence even prior
to 1-4-2001 would be treated as juveniles even if the
4 (2010) 5 SCC 344
Criminal Appeal No. 860 of 2019 Page 12 of 24
claim of juvenility is raised after they have attained
the age of eighteen years on or before the date of
the commencement of the Act of 2000 and were
undergoing sentences upon being convicted. In the
view we have taken, we are fortified by the dictum of
this Court in a recent decision in Hari Ram v. State of
Rajasthan [(2009) 13 SCC 211: (2010) 1 SCC (Cri)
987].”
15. In Mumtaz v. State of U.P 5
, while referring to several earlier
decisions, this court dealt with effect of Section 20 of the 2000 Act
and its inter-play with the 1986 Act, to elucidate:
“18. The effect of Section 20 of the 2000 Act was
considered in Pratap Singh v. State of
Jharkhand [Pratap Singh v. State of Jharkhand,
(2005) 3 SCC 551: 2005 SCC (Cri) 742] and it was
stated as under: (SCC p. 570, para 31)
“31. Section 20 of the Act as quoted above deals
with the special provision in respect of pending
cases and begins with a non obstante clause.
The sentence ‘notwithstanding anything
contained in this Act, all proceedings in respect
of a juvenile pending in any court in any area on
the date on which this Act came into force’ has
great significance. The proceedings in respect of
a juvenile pending in any court referred to in
Section 20 of the Act are relatable to
proceedings initiated before the 2000 Act came
into force and which are pending when the 2000
Act came into force. The term “any court” would
include even ordinary criminal courts. If the
person was a “juvenile” under the 1986 Act the
proceedings would not be pending in criminal
courts. They would be pending in criminal courts
only if the boy had crossed 16 years or the girl
had crossed 18 years. This shows that Section
20 refers to cases where a person had ceased to
5 (2016) 11 SCC 786
Criminal Appeal No. 860 of 2019 Page 13 of 24
be a juvenile under the 1986 Act but had not yet
crossed the age of 18 years then the pending
case shall continue in that court as if the 2000
Act has not been passed and if the court finds
that the juvenile has committed an offence, it
shall record such finding and instead of passing
any sentence in respect of the juvenile, shall
forward the juvenile to the Board which shall
pass orders in respect of that juvenile.”
19. In Bijender Singh v. State of Haryana [Bijender
Singh v. State of Haryana, (2005) 3 SCC 685 : 2005
SCC (Cri) 889] , the legal position as regards Section
20 was stated in the following words: (SCC pp. 687-
88, paras 8-10 & 12):
“8. One of the basic distinctions between the
1986 Act and the 2000 Act relates to the age of
males and females. Under the 1986 Act, a
juvenile means a male juvenile who has not
attained the age of 16 years, and a female
juvenile who has not attained the age of 18
years. In the 2000 Act, the distinction between
male and female juveniles on the basis of age
has not been maintained. The age-limit is 18
years for both males and females.
9. A person above 16 years in terms of the 1986
Act was not a juvenile. In that view of the matter
the question whether a person above 16 years
becomes “juvenile” within the purview of the
2000 Act must be answered having regard to the
object and purport thereof.
10. In terms of the 1986 Act, a person who was
not juvenile could be tried in any court. Section 20
of the 2000 Act takes care of such a situation
stating that despite the same the trial shall
continue in that court as if that Act has not been
passed and in the event, he is found to be guilty
of commission of an offence, a finding to that
effect shall be recorded in the judgment of
conviction, if any, but instead of passing any
sentence in relation to the juvenile, he would be
forwarded to the Juvenile Justice Board (in short
Criminal Appeal No. 860 of 2019 Page 14 of 24
“the Board”) which shall pass orders in
accordance with the provisions of the Act as if it
has been satisfied on inquiry that a juvenile has
committed the offence. A legal fiction has, thus,
been created in the said provision. A legal fiction
as is well known must be given its full effect
although it has its limitations. …
11.***
12. Thus, by reason of legal fiction, a person,
although not a juvenile, has to be treated to be
one by the Board for the purpose of sentencing,
which takes care of a situation that the person
although not a juvenile in terms of the 1986 Act
but still would be treated as such under the 2000
Act for the said limited purpose.”
20. In Dharambir v. State (NCT of
Delhi) [Dharambir v. State (NCT of Delhi), (2010) 5
SCC 344 : (2010) 2 SCC (Cri) 1274] the
determination of juvenility even after conviction was
one of the issues and it was stated: (SCC p. 347,
paras 11-12)
“11. It is plain from the language of the
Explanation to Section 20 that in all pending
cases, which would include not only trials but
even subsequent proceedings by way of revision
or appeal, etc., the determination of juvenility of a
juvenile has to be in terms of clause (l) of Section
2, even if the juvenile ceases to be a juvenile on
or before 1-4-2001, when the 2000 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 committed.
12. Clause (l) of Section 2 of the 2000 Act
provides that “juvenile in conflict 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. Section 20 also enables the court to
consider and determine the juvenility of a person
even after conviction by the regular court and
Criminal Appeal No. 860 of 2019 Page 15 of 24
also empowers the court, while maintaining the
conviction, to set aside the sentence imposed
and forward the case to the Juvenile Justice
Board concerned for passing sentence in
accordance with the provisions of the 2000 Act.”
21. Similarly in Kalu v. State of
Haryana [Kalu v. State of Haryana, (2012) 8 SCC
34 : (2012) 3 SCC (Cri) 761] this Court summed up
as under: (SCC p. 41, para 21)
“21. Section 20 makes a special provision in
respect of pending cases. It states that
notwithstanding anything contained in the
Juvenile Act, all proceedings in respect of a
juvenile pending in any court in any area on the
date on which the Juvenile Act comes into force
in that area shall be continued in that court as if
the Juvenile Act had not been passed and if the
court finds that the juvenile has committed an
offence, it shall record such finding and instead
of passing any sentence in respect of the
juvenile forward the juvenile to the Board which
shall pass orders in respect of that juvenile in
accordance with the provisions of the Juvenile
Act as if it had been satisfied on inquiry under
the Juvenile Act that the juvenile has committed
the offence. The Explanation to Section 20
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 the
juvenile ceased to be a juvenile on or before 1-4-
2001, when the Juvenile Act came into force, and
the provisions of the Juvenile 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 committed.”
Criminal Appeal No. 860 of 2019 Page 16 of 24
16. This position of law and principle was affirmed by this court for the
first time in Hari Ram v. State of Rajasthan6
in the following
words:
“39. The Explanation which was added in
2006, makes it very 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 the juvenile
ceased to be a juvenile on or before 1-4-
2001, when the Juvenile Justice Act, 2000,
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
committed. In fact, 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 Juvenile Justice Board concerned for
passing sentence in accordance with the
provisions of the Juvenile Justice Act, 2000.”
17. In light of the legal position as expounded above and in the
aforementioned judgments, this court at this stage can decide and
determine the question of juvenility of Satya Deo, notwithstanding
the fact that Satya Deo was not entitled to the benefit of being a
juvenile on the date of the offence, under the 1986 Act, and had
turned an adult when the 2000 Act was enforced. As Satya Deo
was less than 18 years of age on the date of commission of
6 (2009) 13 SCC 211
Criminal Appeal No. 860 of 2019 Page 17 of 24
offence on 11.12.1981, he is entitled to be treated as a juvenile
and be given benefit as per the 2000 Act.
18. This brings us to the question whether the Juvenile Justice (Care
and Protection) Act of 2015 (2015 Act) would be applicable as the
2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act,
albeit sub-section (2) to Section 111 states that notwithstanding
this repeal anything done or any action taken under the 2000 Act
shall be deemed to have been done or taken under the
corresponding provisions of the 2015 Act. Section 69 ‘Repeal and
saving clause’ of the 2000 Act is identical as sub-section (1)
thereof had repealed the 1986 Act and sub-section (2) provides
that notwithstanding such repeal anything done or any action
taken under the 1986 Act shall be deemed to have been done or
taken under the corresponding provisions of the 2000 Act.
However, what is important and relevant for us is Section 25 of the
2015 Act which, as per the headnote to that Section, incorporates
‘special provision in respect of pending cases’ and reads:
“Notwithstanding anything contained in this Act, all
proceedings in respect of a child alleged or found to
be in conflict with law pending before any Board or
court on the date of commencement of this Act, shall
be continued in that Board or court as if this Act had
not been enacted.”
Criminal Appeal No. 860 of 2019 Page 18 of 24
Section 25 is a non-obstante clause which applies to all
proceedings in respect of a child7
alleged or found to be in conflict
with law pending before any Board or court on the date of
commencement of the 2015 Act, that is, 31st December 2015. It
states that the pending proceedings shall be continued in that
Board or court as if the 2015 Act had not been passed. In Akhtari
Bi v. State of M.P.8
, it was observed that the right to appeal being
a statutory right, the trial court’s verdict does not attain finality
during the pendency of the appeal and for that purpose the trial is
deemed to be continuing despite conviction. Thus, the use of the
word ‘any’ before the board or court in Section 25 of the 2015 Act,
would mean and include any court including the appellate court or
a court before which the revision petition is pending. This is also
apparent from the use of the words ‘a child alleged or found to be
in conflict with law’. The word ‘found’ is used in past-tense and
would apply in cases where an order/judgment has been passed.
The word ‘alleged’ would refer to those proceedings where no final
order has been passed and the matter is sub-judice. Further,
Section 25 of the 2015 Act applies to proceedings before the
board or the court and as noticed above, it would include any
court, including the appellate court or the court where the revision
7 The expression ‘child’ as per clause (12) to Section 2 of the 2015 Act reads – ‘a person who has
not completed eighteen years of age’.
8 (2001) 4 SCC 355
Criminal Appeal No. 860 of 2019 Page 19 of 24
petition is pending. In the context of Section 25, the expression
‘court’ is not restricted to mean a civil court which has the
jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms
of clause (23) to Section 2 of the 2015 Act9
. The definition clause
is applicable unless the context otherwise requires. In case of
Section 25, the legislature is obviously not referring to a civil court
as the section deals with pending proceedings in respect of a child
alleged or found to be in conflict with law, which cannot be
proceedings pending before a civil court. Since the Act of 2015
protects and affirms the application of the 2000 Act to all pending
proceedings, we do not read that the legislative intent of the 2015
Act is to the contrary, that is, to apply the 2015 Act to all pending
proceedings.
Section 6 of the General Clauses Act,1897 that provides
the consequence of “repeal” of an enactment reads:
6. Effect of repeal. Where this Act, or any Central Act or
Regulation made after the commencement of this Act, repeals
any enactment hitherto made or hereafter to be made, then,
unless a different intention appears, the repeal shall not:
xxx
(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed;
Consequently, in light of Section 6 of the General Clauses Act
read with Section 25 of the 2015 Act, an accused cannot be
denied his right to be treated as a juvenile when he was less than
9 “(23) – “court” means a civil court, which has jurisdiction in matters of adoption and guardianship
and may include the District Court, Family Court and City Civil Courts’;”
Criminal Appeal No. 860 of 2019 Page 20 of 24
eighteen years of age at the time of commission of the offence, a
right which he acquired and has fructified under the 2000 Act,
even if the offence was committed prior to enforcement of the
2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act,
2000 Act would continue to apply and govern the proceedings
which were pending when the 2015 Act was enforced. (In the
present case, we are not required to examine and decide the
question whether 2000 Act or the 2015 Act would apply when the
offence was committed before the enactment of the 2015 Act but
the charge-sheet was filed after enactment of the 2015 Act. The
answer would require examination of clause (1) to Article 20 of the
Constitution and several other aspects as the 2015 Act provide an
entirely different regime in respect of children in conflict with law
and the procedure to be followed in such cases. These aspects
and issues have not been argued before us.)
19. Decision of this court in Gaurav Kumar @ Monu v. State of
Haryana10, which was relied upon by the learned counsel for the
state is of no avail as this decision is on interpretation and
application of Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007, for the procedure to be followed in
determination of age. The procedure adopted by the learned
10 (2019) 4 SCC 549
Criminal Appeal No. 860 of 2019 Page 21 of 24
District and Sessions Judge is not challenged and questioned
before us. We would again record that Satya Deo was less than
18 years of age on the date of commission of offence and this
remains undisputed and unchallenged.
20. Satya Deo has undergone incarceration for more than 2 years
thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum
and nature of punishment which should be given to a person who
was a juvenile on the date of commission of offence, this court,
while placing reliance upon an earlier decision in Jitendra Singh
v. State of Uttar Pradesh11
, had held:
22. It is thus well settled that in terms of Section 20
of the 2000 Act, in all cases where the accused was
above 16 years but below 18 years of age on the
date of occurrence, the proceedings pending in the
court would continue and be taken to the logical end
subject to an exception that upon finding the juvenile
to be guilty, the court would not pass an order of
sentence against him but the juvenile would be
referred to the Board for appropriate orders under
the 2000 Act. What kind of order could be passed in
a matter where claim of juvenility came to be
accepted in a situation similar to the present case,
was dealt with by this Court in Jitendra Singh v. State
of U.P. [Jitendra Singh v. State of U.P., (2013) 11
SCC 193 : (2013) 4 SCC (Cri) 725] in the following
terms: (SCC pp. 210-11, para 32)
“32. A perusal of the “punishments” provided for
under the Juvenile Justice Act, 1986 indicate that
given the nature of the offence committed by the
appellant, advising or admonishing him [clause
(a)] is hardly a “punishment” that can be awarded
since it is not at all commensurate with the
gravity of the crime. Similarly, considering his
age of about 40 years, it is completely illusory to
11 (2013) 11 SCC 193
Criminal Appeal No. 860 of 2019 Page 22 of 24
expect the appellant to be released on probation
of good conduct, to be placed under the care of
any parent, guardian or fit person [clause (b)].
For the same reason, the appellant cannot be
released on probation of good conduct under the
care of a fit institution [clause (c)] nor can he be
sent to a special home under Section 10 of the
Juvenile Justice Act, 1986 which is intended to
be for the rehabilitation and reformation of
delinquent juveniles [clause (d)]. The only
realistic punishment that can possibly be
awarded to the appellant on the facts of this case
is to require him to pay a fine under clause (e) of
Section 21(1) of the Juvenile Justice Act, 1986.”
21. Following the aforesaid ratio and the legal position elucidated
above, while we uphold the conviction of Satya Deo, we would set
aside the sentence of life imprisonment. We would remit the
matter to the jurisdiction of the Board for passing appropriate
order/directions under Section 15 of the 2000 Act including the
question of determination and payment of appropriate quantum of
fine and the compensation to be awarded to the family of the
deceased. We make no affirmative or negative comments either
way on the order/direction under Section 15 of the 2000 Act.
22. We would, accordingly, direct the jail authorities to produce Satya
Deo before the Board within seven days from the date of receipt of
a copy of this judgment. The Board shall then pass appropriate
order regarding detention and custody and proceed thereafter to
pass order/directions under the 2000 Act.
Criminal Appeal No. 860 of 2019 Page 23 of 24
23. The appeal filed by the Satya Deo is partly allowed in the
aforesaid terms and all the pending application are disposed of.
......................................J.
(S. ABDUL NAZEER)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
OCTOBER 07, 2020.
Criminal Appeal No. 860 of 2019 Page 24 of 24
