REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 573 OF 2005

LAKHAN LAL … APPELLANT

VERSUS

STATE OF BIHAR … RESPONDENT

WITH

CRIMINAL APPEAL NO.138 OF 2011 ARISING OUT OF  

SPECIAL LEAVE PETITION(CRL) NO.4724 OF 2004 WITH

CRIMINAL MISCELLANEOUS PETITION NO. 1049  OF 2011

PAPPU LAL @ MANOJ KUMAR SRIVASTAVA … APPELLANT

VERSUS

STAE OF BIHAR     … RESPONDENT

JUDGMENT

B. SUDERSHAN REDDY, J.

1. Criminal  Miscellaneous Petition in Special  Leave Petition  

(Crl.) No. 4724 of 2004 has been taken up and allowed.

The Special Leave Petition shall stand restored to the file.  

Leave granted.

2. These appeals are directed against the common judgment  

and  order  dated  27th April,  2004  of  the  High  Court  of  

Judicature at Patna in Criminal Appeal Nos. 649 of 1987  

and 14 of  1988 whereby the High Court  dismissed the  

Criminal Appeals filed by the appellants, confirmed their  

conviction for the offence punishable under Section 302  

read with Section 34 of I.P.C. for committing murder of  

one Surender Choudhary and accordingly sentenced them  

to undergo life imprisonment.

3. When  the  matter  came  up  for  hearing,  Shri  K.V.  

Vishwanathan,  learned senior  counsel  appearing for  the  

appellant Lakhan Lal, submitted that since at the time of  

commission  of  the  said  offence,  the  appellant  had  not  

completed 18 years of age, he was a ‘juvenile’ within the  

meaning of Section 2(k) of the Juvenile Justice (Care and  

Protection of Children) Act, 2000 (hereinafter referred to  

as “the 2000 Act”) and therefore, the order of sentence  

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passed against the appellant for the offence committed by  

him under Section 302 read with Section 34, IPC is to be  

set aside.

4. We find  that  the  conviction  of  the  appellants  is  based  

upon the evidence of Malti Devi (PW1), wife, Sumitra Devi  

(PW2), mother and Lakhan Choudhary (informant) (PW3),  

father of the deceased Surender Choudhary who were all  

eyewitnesses to the incident and there is absolutely no  

reason to disbelieve their evidence. Dr. R.P. Jaiswal (PW5)  

who  conducted  the  postmortem  examination  over  the  

dead  body  of  Surender  Choudhary  found  ante  mortem  

injuries on his person and according to him, the cause of  

death  was  shock  and  hemorrhage  as  a  result  of  the  

injuries  caused  by  sharp  cutting  penetrating  substance  

such as  churra  (dagger).  Those injuries were attributed  

to have been caused by the appellants Pappu Lal who was  

armed with a churra and Lakhan Lal who was armed with  

a country made pistol. These facts need not detain us any  

further  since  the  conviction  of  the  appellants  for  the  

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offence punishable under Section 302 read with Section  

34, IPC is not in issue.

5. Sofaras  Pappu  Lal  @  Manoj  Kumar  Srivastava,  the  

appellant in SLP (crl) No. 4724 of 2004 is concerned, the  

special leave petition preferred by him was dismissed by  

this Court on 8th April, 2005 with the following order:

“It is admitted that neither The Juvenile Justice  (Care and Protection of Children) Act, 2000 (56  of 2000) nor the Juvenile Justice Act, 1986 nor  the Bihar  Childrens  Act  would  apply  as on the  date  of  the  occurrence  the  appellant  was  16  years and 10 months old.  On merits we see no  reason to interfere. Accordingly, the petition shall  stand dismissed”.

In fact, on the date of occurrence, that is to say 9.5.1985,  

the appellant was aged about 16 years and 5 months as the  

same is evident from the certificate dated 6.8.1983 of the  

Bihar School Education Board wherein the date of birth of  

Pappu Lal is recorded as 9.12.1968. This certificate is made  

available for the perusal of the court.

6. The appellant Pappu Lal, relying on the judgment of this  

Court in  Dharambir Vs. State (NCT of Delhi) & Anr.1  

1 (2010) 5 SCC 344

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filed an application to recall the order dated 8th April, 2005  

passed by this Court dismissing his Special Leave Petition  

and  to  restore  the  special  leave  petition  to  its  original  

number. The application is ordered accordingly and that is  

how we have taken up both the appeals for hearing.

7. There is no dispute whatsoever before us as it  is  fairly  

conceded  by  the  learned  counsel  Shri  Manish  Kumar,  

appearing for Shri  Gopal Singh, learned counsel  for the  

State of Bihar that both the appellants were minors as on  

the  date  of  incident  i.e.,  9th May,  1985.  The  appellant  

Lakhan Lal was aged about 16 years 10 months and the  

other  appellant  Pappu  Lal  was  aged  about  16  years  5  

months as on the date of occurrence of the crime. Thus  

the  claim  made  by  the  appellants  that  they  were  

‘juveniles’  as  on  the  date  of  occurrence  of  the  crime  

remains free from any controversy.

8. The question that arises for our consideration is whether  

or not the appellants who were admittedly not ‘juvenile’  

within the meaning of the Juvenile Justice Act, 1986 (for  

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short “the 1986 Act”) when the offences were committed  

but had not completed 18 years of age on that date are  

entitled  for  the  benefit  and  protection  under  the  

provisions of the 2000 Act? Whether they are entitled to  

be  declared  as  ‘juvenile’  in  relation  to  the  offences  

committed by them?

9. The  issue  with  regard  to  the  date,  relevant  for  

determining the applicability of either of the two Acts is no  

longer  res integra. A Constitution Bench of this Court in  

Pratap Singh Vs.  State of Jharkhand & Anr.2 in  its  

authoritative pronouncement held that the relevant date  

for determining the age of a person who claims to be a  

juvenile/child would be the date on which the offence has  

been committed and not the date when he is produced  

before the authority or in the Court.

10.The  Act  that  was  in  operation  as  on  the  date  of  the  

incident was Bihar Children’s Act. The Act of 1986 came  

into operation on 3rd December, 1986. The said Act which  

defines a ‘juvenile’ as a boy who has not attained the age  2 (2005) 3 SCC 551

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of sixteen years or a girl who has not attained the age of  

eighteen  years.  Section  63  of  the  1986  Act  provides  

“Repeal and savings” that, if immediately before the date  

on which the Act comes into force in any State, there is in  

force in that State, any law corresponding to the Act, that  

law  shall  stand  repealed  on  the  said  date.  The  said  

provision  further  states  that  any  right,  privilege,  

obligation or liability acquired, accrued or incurred under  

any  law  so  repealed;  or  any  penalty,  forfeiture  or  

punishment incurred in respect of any offence committed  

against any law so repealed; and the legal proceedings in  

respect  of  any  such  right,  privilege,  obligation  will  

continue as if the 1986 Act had not been passed.

11.The fact remains neither in the decision of the Sessions  

Court  dated 9.12.1987 which noted that  the  appellants  

were aged about 20 years which could imply that they  

were under the age of 18 at the time of commission of the  

offence, nor in the High Court judgment as to the plea of  

‘juvenile’ has been discussed.

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12.The 2000 Act came into force w.e.f. 1st April, 2001. It is  

an  act  to  consolidate  and  amend  the  law  relating  to  

juveniles in conflict with law and children in need of care  

and protection,  by providing for proper care,  protection  

and treatment  by catering  to their  development  needs,  

and  by  adopting  a  child-friendly  approach  in  the  

adjudication and disposition of matters in the best interest  

of  children  and  for  their  ultimate  rehabilitation  and  for  

matters connected therewith or incidental thereto. It will  

be useful to have a look at the Statement of Objects and  

Reasons:

A review of the working of the Juvenile Act, 1986  (53  of  1986)  would  indicate  that  much  greater  attention  is  required  to  be  given  to  children  in  conflict  with  law  or  those  in  need  of  care  and  protection.  The  justice  system  as  available  for  adults is not considered suitable for being applied  to  a  juvenile  or  the  child  or  any  one  on  their  behalf  including  the  police,  voluntary  organizations,  social  workers,  or  parents  and  guardians, throughout the country. There is also  an  urgent  need  for  creating  adequate  infrastructure necessary for the implementation of  the proposed legislation with a larger involvement  of  informal  systems  specially  the  family,  the  voluntary organizations and the community.

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In  this  context,  the  following  further  proposals  have been made—

(i) to  lay  down  the  basic  principles  for  administering justice to a juvenile or  the  child in the Bill;

(ii) to make the juvenile system meant for a  juvenile or the child more appreciative of  the developmental needs in comparison to  criminal  justice  system  as  applicable  to  adults;

(iii) to bring the juvenile law in conformity with  the United Convention on the Rights of the  Child;

(iv) to  prescribe  a  uniform  age  of  eighteen  years for both boys and girls;

(v) to ensure speedy disposal of cases by the  authorities  envisaged  under  this  Bill  regarding  juvenile  or  the  child  within  a  time limit of four months;

(vi) to  spell  out  the  role  of  the  State  as  a  facilitator  rather  than  doer  by  involving  voluntary organizations and local bodies in  the  implementation  of  the  proposed  legislation;

(vii) to create special juvenile police units with  a humane approach through sensitization  and training of police personnel;

(viii) to  enable  increased  accessibility  to  a  juvenile  or  the  child  by  establishing  Juvenile Justice Boards and Child Welfare  Committees and Homes in each district or  group of districts;

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(ix) to minimize the stigma and in keeping with  the developmental needs of the juvenile or  the  child,  to  separate  the  Bill  into  two  parts—one for juveniles in conflict with law  and the other for the juvenile or the child  in need of care and protection;

(x) to  provide  for  effective  provisions  and  various  alternatives  for  rehabilitation and  social  reintegration  such  as  adoption,  foster  care,  sponsorship  and  aftercare  of  abandoned,  destitute,  neglected  and  delinquent juvenile and child.

The Bill seeks to repeal and re-enact the Juvenile  Justice  Act,  1986  with  a  view  to  achieving  the  above objects.

13.Section 2(k) of the 2000 Act provides that ‘juvenile’ or  

‘child’ means a person who has not completed eighteenth  

year of age and Section 2(l) says 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.

14.In  Pratap Singh  (supra), the Constitution Bench taking  

into consideration the provisions of Sections 3 and 20 and  

the relevant definitions of ‘juvenile’ in Section 2(k) of the  

2000 Act, held that the 2000 Act would be applicable in a  

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pending proceeding in any Court/Authority initiated under  

the 1986 Act and is pending when the 2000 Act came into  

force  and  the  person  concerned  has  not  completed  18  

years of age as on 1.4.2001. It  is  further held “…even  

where  an  inquiry  has  been  initiated  and  the  juvenile  

ceases to be a juvenile  i.e. crosses the age of 18 years,  

the inquiry must be continued and orders made in respect  

of such person as if such person had continued to be a  

juvenile”.

15.In the present case, when the inquiry has been initiated  

against  the  appellants  herein,  they  were  admittedly  

‘juvenile’ even under the provisions of 1986 Act but this  

issue has been ignored by the trial Court and as well as  

the appellate Court. There is no dispute whatsoever that  

both the appellants have crossed the age of 18 years, yet  

both the appellants, for the purposes of hearing of this  

appeal  continued  as  if  they  were  to  be  ‘juvenile’.  In  

Dharambir (supra) this Court took the view:

“It is plain from the language of the Explanation to  Section 20 that in all pending cases, which would  

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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 1st  

April, 2001, when the Act of 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”.

      It is further held:

“It  is,  thus,  manifest from a conjoint  reading of  Sections 2(k), 2(l), 7A, 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 1st April, 2001 would be treated as  juveniles even if the 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 and  Anr. (2009) 13 SCC 211”.

16.Thus this is the complete answer for the determination of  

the issues that have arisen for our consideration.

17.The  fact  remains  that  the  issue  as  to  whether  the  

appellants were juvenile did not come up for consideration  

for  whatever  reason,  before  the  Courts  below.  The  

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question is whether the same could be considered by this  

Court  at  this  stage  of  the  proceedings.  A  somewhat  

similar situation had arisen in Umesh Singh & Anr. Vs.  

State  of  Bihar3 wherein  this  Court  relying  upon  the  

earlier decisions in  Bhola Bhagat Vs. State of Bihar4,  

Gopinath Ghosh Vs. State of W.B.5 and  Bhoop Ram  

Vs. State of U.P.6 while sustaining the conviction of the  

appellant  therein  under  all  the  charges,  held  that  the  

sentences awarded to them need to be set aside. It was  

also a case where the appellant therein was aged below  

18 years and was a child for the purposes of the Bihar  

Children  Act,  1970 on the  date  of  the occurrence.  The  

relevant paragraph reads as under:

“So far  as  Arvind  Singh,  appellant   in  Crl.A.No.659/99,  is concerned,  his case stands  on  a  different  footing.   On   the  evidence   on  record, the learned counsel for the  appellant, was  not  in  a position to point out any infirmity  in the  conviction  recorded  by the trial court as affirmed  by the appellate court.  The only contention put  forward before the court is that the appellant is  born on 1.1.67 while the date of the incident is  

3 (2000) 6 SCC 89 4 (1997) 8 SCC 720 5 1984 Supp SCC 228 6 (1989) 3 SCC 1

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14.12.1980 and on that  date he was hardly  13  years old.  We called for  report  of  experts being  placed before the  court   as  to  the  age  of  the  appellant,  Arvind Singh. The report made to the  court clearly indicates that on  the  date  of  the incident he may be 13 years old. This fact  is  also supported by the school certificate as well as  matriculation   certificate  produced  before  this  court   which  indicate   that  his  date  of  birth  is  1.1.67.  On this  basis, the contention put forward  before the court is that although the  appellant is  aged below 18 years and is a child for the purpose  of the Bihar Children Act, 1970 on the date of the  occurrence, his trial having been conducted along  with other accused who are not children is not in  accordance with law. However, this contention had  not been raised either  before the  trial  court  or  before the  High  Court. In such circumstances,  this  Court  in Bhola Bhagat vs.  State  of Bihar,  1997(8) SCC 720, following the earlier decisions  in  Gopinath   Ghosh vs.   State  of  West  Bengal,  1984 Supp.SCC 228 and  Bhoop Ram vs.  State of  U.P.   1989(3)  SCC  1  and  Pradeep  Kumar  vs.  State   of  U.P.,  1995  Supp(4)   SCC  419,  while  sustaining  the conviction of the appellant under  all the charges,  held that the sentences awarded  to them need to be set  aside.   In view of  the  exhaustive discussion of the law on the matter in  Bhola Bhagat case [supra], we are obviated of the  duty to examine the same but following the same,  with  respect,   we pass  similar   orders   in  the  present  case. Conviction of the appellant, Arvind  Singh,  is  confirmed  but  the  sentence  imposed  upon him stand set aside.   He is, therefore, set at  liberty, if not required in  any  other case”.

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18.The  next  question  for  our  consideration  is  as  to  what  

order and sentence is to be passed against the appellants  

for the offences committed by them under Section 302  

read with Section 34 of the IPC? Both the appellants have  

crossed the age of 40 years as at present and therefore it  

will  not be conducive to the environment in the special  

home and at  any rate,  they have undergone an actual  

period  of  sentence  of  more  than  three  years  the  

maximum period provided under Section 15 of the 2000  

Act. In the circumstances, while sustaining the conviction  

of  the  appellants  for  the  offences  punishable  under  

Section  302  read  with  Section  34  of  the  IPC,  the  

sentences  awarded  to  them  are  set  aside.  They  are  

accordingly directed to be released forthwith. This view of  

ours  to  set  aside  the  sentence  is  supported  by  the  

decision of this Court in Dharambir (supra).

19.The appellants are directed to be released forthwith if not  

required in any other case. The appeals are partly allowed  

accordingly.

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20.We place on record our appreciation for the invaluable  

and  dispassionate  assistance  rendered  by  Shri  Manish  

Kumar, Advocate, appearing for Shri Gopal Singh, learned  

counsel for the State of Bihar.

…………………………………………J. (B. SUDERSHAN REDDY)

NEW DELHI, …………………………………………J. JANUARY 14, 2011. (SURINDER SINGH NIJJAR)

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