Satya Deo @ Bhoorey vs State of Uttar Pradesh

HELD: 1.1 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 Bihar and Umesh Chandra v. State of Rajasthan, the matter was referred to a Constitution Bench and decided in the case reported as Pratap Singh v. State of Jharkhand and Another. Subsequent to the decision of the Constitution Bench in Pratap Singh, several amendments were made to the 2000 Act by the Amendment Act No. 33 of 2006. These amendments are significant, but first Section 2(l) of the 2000 Act will be referred which defines “juvenile in conflict with law” In terms of clause (l) to section 2 of the 2000 Act, appellant, being less than 18 years of age, was juvenile on the date of commission of offence. Section 20 of the 2000 Act, which provides a special provision in respect of pending cases, post the amendment vide Act 33 of 2006, 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 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, 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. [Paras 9-11][136-E; 137-C-E; 138-CH; 139-A-C] Arnit Das v. State of Bihar (2000) 5 SCC 488 : [2000]

1 Suppl. SCR 69; Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202 : [1982] 3 SCR 583; Pratap Singh v. State of Jharkhand and Another (2005) 3 SCC 551 : [2005] 1 SCR 1019 – referred to.

1.2 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 came into effect on 22.08.2006. Proviso to Section 7A is important 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. 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. 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 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 Act. The statute overrules and modifies the sentence awarded, even in decided cases. [Paras 12, 13][139C-H; 140-A-C; 141-B-G]

1.3 This court at this stage can decide and determine the question of juvenility of appellant, notwithstanding the fact that appellant 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 appellant was less than

18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act. This brings this Court 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 is Section 25 of the 2015 Act which, as per the headnote to that Section, incorporates ‘special provision in respect of pending cases’. Section 25 is a non-obstante clause which applies to 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 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. 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 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 Act. 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, this Court does 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. 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 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, this Court is 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.) [Paras 17, 18][146-E-H; 147-A-H; 148-A-G]

Akhtari Bi v. State of M.P. (2001) 4 SCC 355 : [2001]

2 SCR 626 – relied on.

1.4 The procedure adopted by the learned District and Sessions Judge is not challenged and questioned. Appellant was less than 18 years of age on the date of commission of offence and this remains undisputed and unchallenged. Appellant has undergone incarceration for more than 2 years thus far. While the conviction of appellant is uphold, the sentence of life imprisonment is set aside. The matter is remitted 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. [Paras 21, 22][150-C-F]

Gaurav Kumar @ Monu v. State of Haryana (2019) 4 SCC 549 : [2019] 3 SCR 372 – distinguished.

Dharambir v. State (NCT of Delhi) and Another (2010)

5 SCC 344 : [2010] 5 SCR 137; Mumtaz v. State of U.P (2016) 11 SCC 786 : [2016] 3 SCR 434; Hari Ram v. State of Rajasthan (2009) 13 SCC 211 : [2009]

7 SCR 623; Jitendra Singh v. State of Uttar Pradesh (2013) 11 SCC 193 : [2013] 13 SCR 764 – relied on.