REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 30   OF 2011  [ARISING OUT OF SLP (CRIMINAL) NO.808 OF 2010]

DAYA NAND … APPELLANT  

VERSUS

STATE OF HARYANA … RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. Leave granted. 2. The appellant stands convicted under section 376 read  with  section  511  of  the  Penal  Code  and  sentenced  to  rigorous  imprisonment  for  five  years  and  a  fine  of  Rs.2000/- with the direction that in default of payment of  fine he would undergo rigorous imprisonment for a further  period of two months.

3. According  to  the  prosecution  case,  on  February  2,  1998, at about 10.00 A.M., the prosecutrix had gone out to  the fields for relieving herself. There she was accosted by  the  appellant.  Seeing  him  take  off  his  pants,  the  prosecutrix tried to run away but the appellant caught hold  of her and pulled her down to the ground. The prosecutrix  freed herself by biting on the appellant’s hand and ran  towards  her  house.  The  appellant  chased  her  and  again  caught  hold  of  her.  He  pulled  her  down  and  grabbed  her  breasts and attempted to commit rape on her.  She resisted  him and in their struggle some mustard crops grown in the  field  were  also  damaged.  On  alarm  raised  by  the  prosecutrix, her mother and uncle came to the spot and on  seeing  them,  the  appellant  ran  away  threatening  the  prosecutrix that he would kill her in case she went to the  police.  4. In support of its case, the prosecution examined the  mother of the prosecutrix as PW.1, the prosecutrix herself  as PW.2 and two policemen connected with the investigation  and a photographer who had taken pictures of the place of  occurrence. 5. The  Additional  Sessions  Judge,  Narnaul,  trying  the  offence, on a consideration of the evidence adduced before  him, found and held that the charge against the appellant  

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was fully proved and by judgment and order dated February  13/15, 1999, passed in Sessions Case No.39 of 6.10.1998,  Sessions  Trial  No.1  of  1.2.1999  convicted  and  sentenced  him, as noted above.  Against the judgment and order passed  by  the  trial  court,  the  appellant  preferred  an  appeal  (Criminal Appeal No.174-SB of 1999) before the High Court  of  Punjab  and  Haryana  at  Chandigarh.  The  High  Court  dismissed the appeal by judgment and order dated October  15, 2009, maintaining the conviction and sentence awarded  to the appellant.  6. So far as the question of the appellant’s guilt is  concerned,  that  seems  to  be  amply  established  by  the  evidence adduced by the prosecution and there is no need to  go into any further detail in that regard. What needs to be  considered in this appeal is the appellant’s plea based on  juvenility.  7. From  the  judgment  of  the  High  Court  coming  under  appeal,  it  appears  that  the  plea  of  the  appellant’s  juvenility was raised at an early stage of the proceedings  and  the  Principal  Magistrate,  Juvenile  Justice  Court,  Narnaul, by his order dated March 20, 1998 had found that  the  appellant  was  a  juvenile.  Against  the  order  of  the  Principal  Magistrate,  the  State  went  in  appeal  and  the  learned Sessions Judge, Narnaul, reversed the findings of  

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the Principal Magistrate, Juvenile Justice Court, observing  that the date of birth of the appellant as recorded in the  Deaths and Births Register maintained by the Registrar was  August 14, 1981 and reckoned on that basis, he was not a  juvenile on February 2, 1998, the date of the occurrence.  As  a  consequence,  the  appellant  was  tried  not  before  a  Juvenile Court, but before the Additional Sessions Judge,  Narnaul. 8. The plea of juvenility was again raised in appeal, but  the High Court rejected it referring to the finding of the  Sessions Judge on the matter and observing as follows:-

“Learned  counsel  for  the  appellant  argued  that  the  appellant  was  a  juvenile  at  the  time  of  occurrence  and  should  have  been  tried  by  the  Principal  Magistrate,  Juvenile  Justice  Court,  Narnaul. However, after going through the records  of  the  case,  I  do  not  find  any  merit  in  this  argument.   In  his  order  dated  20.3.1998,  the  Principal  Magistrate,  Juvenile  Justice  Court,  Narnaul,  had  held  that  the  appellant  was  a  juvenile.  Against the order dated 20.3.1998, the  State had gone in appeal and the learned Sessions  Judge  Narnaul,  reversed  the  findings  of  the  Principal  Magistrate,  Juvenile  Justice  Court,  Narnaul by observing that the date of birth of  the appellant was 14.8.1981 as mentioned in the  Deaths and Births Register so maintained by the  Registrar.  Thus, on 2.2.1998, i.e. the date of  occurrence, the appellant was not a juvenile.”

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9. From  the  above  it  is  evident  that  on  the  date  of  occurrence the age of the appellant was 16 years 5 months  and 19 days. 10. In the Juvenile Justice Act, 1986, a ‘juvenile’ was  defined  under  section  2(h)  to  mean  a  boy  who  has  not  attained the age of 16 years or a girl who has not attained  the age of 18 years. On the basis of the finding of the  Sessions  Judge  that  on  the  date  of  occurrence,  the  appellant was over 16 years of age, he did not come within  the definition of ‘juvenile’ under the 1986 Act.  11. The  Juvenile  Justice  Act,  1986  was  replaced  by  the  Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  2000 that came into force on April 1, 2001. The 2000 Act  defined  ‘juvenile  or  child’  in  section  2(k)  to  mean  a  person  who  has  not  completed  eighteenth  years  of  age.  Section 69 of the 2000 Act, repealed the Juvenile Justice  Act, 1986. The 2000 Act, in section 20 also contained a  provision in regard to cases that were pending when it came  into  force  and  in  which  the  accused  at  the  time  of  commission of offence was below 18 years of age but above  sixteen years of age (and hence, not a juvenile under the  1986 Act) and consequently who was being tried not before a  juvenile court but a regular court. Section 20 (prior to  its amendment in 2006) provided as follows:

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“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 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.”

    12. The above quoted provision came up for consideration  before a Constitution Bench of this Court in  Pratap Singh  vs.  State  of  Jharkhand  and  Anr.,  (2005)  3  SCC  551.  In  Pratap Singh, this Court held that section 20 of the 2000  Act  would  apply  only  to  cases  in  which  the  accused  was  below 18 years of age on April 1, 2001, the date on which  the  2000  Act  came  into  force  but  it  would  have  no  application in case the accused had crossed the age of 18  years on the date of coming into force of the 2000 Act. 13. Applying the ratio of the Constitution Bench decision,  the appellant would not be entitled to the protections and  benefits of the provisions of the 2000 Act, since he was  over 18 years of age on April 1, 2001, when the 2000 Act  came into force. But the matter did not stop at that stage.  

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After this Court’s decision in Pratap Singh (and presumably  as a result of that decision) a number of amendments of a  very basic nature were introduced in the 2000 Act w.e.f.  August 22, 2006 by Act 33 of 2006. Some of the provisions  incorporated in the 2000 Act by the 2006 amendment insofar  as relevant for the present are reproduced below:

“1(4)  Notwithstanding  anything  contained  in  any  other  law  for  the  time  being  in  force,  the  provisions of this Act shall apply to all cases  involving  detention,  prosecution,  penalty  or  sentence of imprisonment of juveniles in conflict  with law under any such law. 2(1) “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; 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  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  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.

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(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. 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 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 (1) 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.]

64. Juvenile  in  conflict  with  law  undergoing sentence at commencement of this Act.   - In 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  

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of 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  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 (1) 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.”  

14. The  effect  of  the  amendments  in  the  2000  Act  were  considered by this Court in Hari Ram v. State of Rajasthan  and Another reported in (2009) 13 SCC 211. In Hari Ram this  Court held that the Constitution Bench decision in  Pratap  Singh’s case was no longer relevant since it was rendered  

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under the unamended Act. In  Hari Ram this Court held and  observed as follows:

“59. The law as now crystallised on a conjoint  reading of Sections 2(k), 2(1), 7-A, 20 and 49  read  with  Rules  12  and  98,  places  beyond  all  doubt that all persons who were below the age of  18 years on the date of commission of the offence  even  prior  to  1-4-2001,  would  be  treated  as  juveniles, even if the claim of juvenility was  raised  after  they  had  attained  the  age  of  18  years on or before the date of commencement of  the Act and were undergoing sentence upon being  convicted. xxxxxxx xxxxxxx 67. Section 7A of the Juvenile Justice Act, 2000,  made provision for the claim of juvenility to be  raised before any Court at any stage, as has been  done in this case, and such claim was required to  be  determined  in  terms  of  the  provisions  contained in the 2000 Act and the Rules framed  thereunder, even if the juvenile had ceased to be  so on or before the date of commencement of the  Act. 68. Accordingly, a juvenile who had not completed  eighteen years on the date of commission of the  offence was also entitled to the benefits of the  Juvenile Justice Act, 2000, as if the provisions  of Section 2(k) had always been in existence even  during the operation of the 1986 Act. 69. The said position was re-emphasised by virtue  of the amendments introduced in Section 20 of the  2000  Act,  whereby  the  Proviso  and  Explanation  were added to Section 20, which made it even more  explicit  that  in  all  pending  cases,  including  trial,  revision,  appeal  and  any  other  criminal  proceedings in respect of a juvenile in conflict  with law, the determination of juvenility of such  a juvenile would be in terms of Clause (l) of  

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Section 2 of the 2000 Act, and the provisions of  the Act would apply as if the said provisions had  been  in  force  when  the  alleged  offence  was  committed. 70. In the instant case, there is no controversy  that the appellant was about sixteen years of age  on the date of commission of the alleged offence  and had not completed eighteen years of age. In  view  of  Sections  2(k),  2(l)  and  7A  read  with  Section  20  of  the  said  Act,  the  provisions  thereof would apply to the appellant's case and  on the date of the alleged incident it has to be  held that he was a juvenile.”

15. Later  on,  the  decision  in  Hari  Ram (supra)  was  followed by this Court in Dharambir v. State (NCT of Delhi)  and Another, (2010) 5 SCC 344 and also in  Mohan Mali &  Another v. State of M.P., AIR 2010 SC 1790.   16. In view of the Juvenile Justice Act as it stands after  the  amendments  introduced  into  it  and  following  the  decision in Hari Ram and the later decisions the appellant  can not be kept in prison to undergo the sentence imposed  by the Additional Sessions Judge and affirmed by the High  Court. The sentence imposed against the appellant is set  aside and he is directed to be released from prison.  He is  further directed to be produced before the Juvenile Justice  Board,  Narnaul,  for  passing  appropriate  orders  in  accordance with the provisions of the Juvenile Justice Act.

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17. The appeal is, thus, disposed of with the aforesaid  observations and directions.  

…………………………….J. (Aftab Alam)

…………………………….J. (R.M. Lodha)

New Delhi; January 7,2011.

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