SATYA DEO @ BHOOREY versus STATE OF UTTAR PRADESH

[2020] 12 S.C.R.

ASATYA DEO @ BHOOREY

STATE OF UTTAR PRADESH

(Criminal Appeal No.860 of 2019)

BOCTOBER 07, 2020

[S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2000– ss.2(l), 7A, 15, 16(2), 20, 64, 69 – Scheme and applicability of2000 Act – Appellant and co-accused persons convicted by trialCcourt in FIR dtd. 11.12.81 u/s.302 r/w s.34, IPC and sentenced toundergo imprisonment for life – Confirmed by impugned judgment– SLP in respect of co-accused persons dismissed, however in caseof appellant notice was issued on the plea of juvenility – Held:Supreme court at this stage can decide and determine the questionDof juvenility of the appellant, notwithstanding the fact that he wasnot entitled to the benefit of being juvenile on the date of theoffence, under the 1986 Act, and had turned an adult when the2000 Act was enforced – As the appellant was less than 18 years ofage on the date of commission of offence on 11.12.81, he is entitledto be treated as juvenile and be given benefit as per the 2000 ActE– Further, in light of s.6, General Clauses Act r/w s.25 of the 2015Act, an accused cannot be denied his right to be treated as juvenilewhen he was less than eighteen years of age at the time of commissionof the offence, right which he acquired and has fructified underthe 2000 Act, even if the offence was committed prior to enforcementFof the 2000 Act on 01.04.2001– In terms of s.25 of the 2015 Act,2000 Act would continue to apply and govern the proceedings whichwere pending when the 2015 Act was enforced – Appellant hasundergone incarceration for more than 2 years thus far – Convictionof the appellant is upheld, but sentence of life imprisonment setaside – Matter remitted to the Juvenile Justice Board for passingGappropriate order/directions u/s.15 of the 2000 Act including thequestion of determination and payment of appropriate quantum offine and compensation to be awarded to the family of deceased –Juvenile Justice Act, 1986 – Juvenile Justice (Care and Protection)Act, 2015 – s.2, 25, 111 – General Clauses Act, 1897 – s.6 – PenalHCode, 1860 – s.302 r/w s.34.

Juvenile Justice (Care and Protection of Children) Act, 2000– Applicability of vis-à-vis 2015 Act – Discussed – Juvenile Justice(Care and Protection) Act of 2015.

Juvenile Justice (Care and Protection) Act, 2015 – s.25 –Scope and application of – Discussed – Juvenile Justice (Care andProtection of Children) Act, 2000.

Partly allowing the appeal, the Court

HELD: 1.1 In light of the conflicting views expressed bythis Court on application of the 2000 Act to the pendingproceedings, vide decisions in Arnit Das v. State of Bihar andUmesh Chandra v. State of Rajasthan, the matter was referred toa Constitution Bench and decided in the case reported as PratapSingh v. State of Jharkhand and Another. Subsequent to thedecision of the Constitution Bench in Pratap Singh, severalamendments were made to the 2000 Act by the Amendment ActNo. 33 of 2006. These amendments are significant, but firstSection 2(l) of the 2000 Act will be referred which defines “juvenilein conflict with law” In terms of clause (l) to section 2 of the 2000Act, appellant, being less than 18 years of age, was juvenile onthe date of commission of offence. Section 20 of the 2000 Act,which provides special provision in respect of pending cases,post the amendment vide Act 33 of 2006, Section 20 is specialprovision with respect to pending cases and begins with limitednon-obstante or overriding clause notwithstanding anythingcontained in the 2000 Act. Legislative intent clearly expressedstates that all proceedings in respect of juvenile pending in anycourt on the date on which the 2000 Act came into force shallcontinue before that court as if the 2000 Act had not been passed.Though the proceedings are to continue before the court, thesection states that if the court comes to finding that juvenilehas committed the offence, it shall record the finding but insteadof passing an order of sentence, forward the juvenile to theJuvenile Justice Board (Board) which shall then pass orders inaccordance with the provisions of the 2000 Act, as if the Boarditself had conducted an inquiry and was satisfied that the juvenilehad committed the offence. The proviso however states that theBoard, for any adequate and special reasons, can review the caseand pass appropriate order in the interest of the juvenile.

AExplanation added to Section 20 vide Act 33 of 2006, which againis of significant importance, states that the court where ‘theproceedings’ are pending ‘at any stage’ shall determine thequestion of juvenility of the accused. The expression ‘all pendingcases’ includes not only trial but even subsequent proceedingsby way of appeal, revision etc. or any other criminal proceedings.BLastly, 2000 Act applies even to cases where the accused was ajuvenile on the date of commission of the offence, but had ceasedto be juvenile on or before the date of commencement of the2000 Act. In even such cases, provisions of the 2000 Act are toapply as if these provisions were in force for all purposes and atCall material time when the offence was committed. Thus, in respectof pending cases, Section 20 authoritatively commands that thecourt must at any stage, even post the judgment by the trial courtwhen the matter is pending in appeal, revision or otherwise,consider and decide upon the question of juvenility. Juvenility isdetermined by the age on the date of commission of the offence.DThe factum that the juvenile was an adult on the date ofenforcement of the 2000 Act or subsequently had attainedadulthood would not matter. If the accused was juvenile, the courtwould, even when maintaining conviction, send the case to theBoard to issue direction and order in accordance with theEprovisions of the 2000 Act. [Paras 9-11][136-E; 137-C-E; 138-C-H; 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

Fv. 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 wasinserted in the 2000 Act setting-out the procedure to be followedby the court to determine the claim of juvenility. Section 7A cameGinto effect on 22.08.2006. Proviso to Section 7A is important as itstates that the claim of juvenility may be raised before ‘any court’‘at any stage’, even after the final disposal of the case. Whensuch claim is made, it shall be determined in terms of theprovisions of the 2000 Act and the rules framed thereunder, evenwhen the accused had ceased to be juvenile on or beforeH

commencement of the 2000 Act. Thus it would not matter if theaccused, though juvenile on the date of commission of theoffence, had become an adult before or after the date ofcommencement of the 2000 Act on 01.04.2001. He would beentitled to benefit of the 2000 Act. Section 64 of the 2000 Actwas also amended by Act No. 33 of 2006 by incorporating provisoand explanation and by replacing the words ‘may direct’ with thewords ‘shall direct’ in the main provision. Substitution of the words‘may direct’ with ‘shall direct’ in the main provision is to clarifythat the provision is mandatory and not directory. Section 64 hasto be read harmoniously with the newly added proviso andexplanation and also other amendments made vide Act 33 of 2006in Section 20 and by way of inserting Section 7A in the 2000 Act.The main provision states that where juvenile in conflict withlaw is undergoing any sentence of imprisonment at thecommencement of the 2000 Act, he shall, in lieu of undergoingthe sentence, be sent to special home or be kept in fitinstitution in such manner as the state government thinks fit forthe remainder of the period of sentence. Further, the provisionsof the 2000 Act are to apply as if the juvenile had been orderedby the Board to be sent to the special home or institution andordered to be kept under protective care under sub-section (2)of Section 16 of the Act. The proviso states that the stategovernment or the Board, for any adequate and special reasonsto be recorded in writing, review the case of the juvenile in conflictwith law who is undergoing sentence of imprisonment and whohad ceased to be juvenile on or before the commencement ofthe 2000 Act and pass appropriate orders. However, it is theexplanation which is of extreme significance as it states that inall cases where juvenile in conflict with law is undergoing asentence of imprisonment on the date of commencement of the2000 Act, the juvenile’s case including the issue of juvenility,shall be deemed to be decided in terms of clause (l) to Section 2and other provisions and rules made under the 2000 Actirrespective of the fact that the juvenile had ceased to be ajuvenile. Such juvenile shall be sent to special home or fitinstitution for the remainder period of his sentence but suchsentence shall not exceed the maximum period provided inSection 15 of the 2000 Act. The statute overrules and modifiesthe sentence awarded, even in decided cases. [Paras 12, 13][139-C-H; 140-A-C; 141-B-G]

A1.3 This court at this stage can decide and determine thequestion of juvenility of appellant, notwithstanding the fact thatappellant was not entitled to the benefit of being juvenile onthe date of the offence, under the 1986 Act, and had turned anadult when the 2000 Act was enforced. As appellant was less than18 years of age on the date of commission of offence onB11.12.1981, he is entitled to be treated as juvenile and be givenbenefit as per the 2000 Act. This brings this Court to the questionwhether 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) toCSection 111 states that notwithstanding this repeal anything doneor any action taken under the 2000 Act shall be deemed to havebeen done or taken under the corresponding provisions of the2015 Act. Section 69 ‘Repeal and saving clause’ of the 2000 Actis identical as sub-section (1) thereof had repealed the 1986 Actand sub-section (2) provides that notwithstanding such repealDanything done or any action taken under the 1986 Act shall bedeemed to have been done or taken under the correspondingprovisions of the 2000 Act. However, what is important andrelevant is Section 25 of the 2015 Act which, as per the headnoteto that Section, incorporates ‘special provision in respect ofEpending cases’. Section 25 is non-obstante clause which appliesto all proceedings in respect of child alleged or found to be inconflict with law pending before any Board or court on the date ofcommencement of the 2015 Act, that is, 31[st] December 2015. Itstates that the pending proceedings shall be continued in thatBoard or court as if the 2015 Act had not been passed. The useFof the word ‘any’ before the board or court in Section 25 of the2015 Act, would mean and include any court including theappellate court or court before which the revision petition ispending. This is also apparent from the use of the words ‘a childalleged or found to be in conflict with law’. The word ‘found’ isGused in past-tense and would apply in cases where an order/judgment has been passed. The word ‘alleged’ would refer tothose proceedings where no final order has been passed and thematter is sub-judice. Further, Section 25 of the 2015 Act appliesto proceedings before the board or the court and as noticed above,it would include any court, including the appellate court or theHcourt where the revision petition is pending. In the context ofSection 25, the expression ‘court’ is not restricted to mean acivil court which has the jurisdiction in the matter of ‘adoption’and ‘guardianship’ in terms of clause (23) to Section 2 of the 2015Act. The definition clause is applicable unless the contextotherwise requires. In case of Section 25, the legislature isobviously not referring to civil court as the section deals withpending proceedings in respect of child alleged or found to bein conflict with law, which cannot be proceedings pending beforea civil court. Since the Act of 2015 protects and affirms theapplication of the 2000 Act to all pending proceedings, this Courtdoes not read that the legislative intent of the 2015 Act is to thecontrary, that is, to apply the 2015 Act to all pending proceedings.Section 6 of the General Clauses Act,1897 that provides theconsequence of “repeal” of an enactment. Consequently, in lightof Section 6 of the General Clauses Act read with Section 25 ofthe 2015 Act, an accused cannot be denied his right to be treatedas juvenile when he was less than eighteen years of age at thetime of commission of the offence, right which he acquired andhas fructified under the 2000 Act, even if the offence wascommitted prior to enforcement of the 2000 Act on 01.04.2001.In terms of Section 25 of the 2015 Act, 2000 Act would continueto apply and govern the proceedings which were pending whenthe 2015 Act was enforced. (In the present case, this Court isnot required to examine and decide the question whether 2000Act or the 2015 Act would apply when the offence was committedbefore the enactment of the 2015 Act but the charge-sheet wasfiled after enactment of the 2015 Act. The answer would requireexamination of clause (1) to Article 20 of the Constitution andseveral other aspects as the 2015 Act provide an entirely differentregime in respect of children in conflict with law and the procedureto be followed in such cases. These aspects and issues have notbeen 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 andSessions Judge is not challenged and questioned. Appellant wasless than 18 years of age on the date of commission of offence

Aand this remains undisputed and unchallenged. Appellant hasundergone incarceration for more than 2 years thus far. Whilethe conviction of appellant is uphold, the sentence of lifeimprisonment is set aside. The matter is remitted to thejurisdiction of the Board for passing appropriate order/directionsunder Section 15 of the 2000 Act including the question ofBdetermination and payment of appropriate quantum of fine andthe compensation to be awarded to the family of the deceased.[Paras 21, 22][150-C-F]

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

CDharambir 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 PradeshD(2013) 11 SCC 193 : [2013] 13 SCR 764 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.G860 of 2019.

From the Judgment and Order dated 20.04.2018 of the High Courtof Allahabad, Bench at Lucknow in Criminal Appeal No. 994 of 1982.

Apoorv Kurup, Nirmal Ambastha, Ishan Baghel, Ms. UpmaBhattacharjee, Ashish Madaam, Ms. Taruna Ardhendumauli Prasad,Parmanand Pandey, Utkarsh Pandey, Advs. for the appearing parties.

The Judgment of the Court was delivered by

SANJIV KHANNA, J.

1. By the order dated 17.08.2018, the Special Leave Petition,challenging the judgment dated 20.4.2018 of the Lucknow Bench of theAllahabad High Court, filed by Keshav Ram and Ram Kuber wasdismissed, albeit in the case of co-accused Satya Deo@ Bhoorey noticewas issued on the plea of juvenility. The impugned judgment had confirmedthe conviction of Keshav Ram, Ram Kuber and Satya Deo by the trialcourt in FIR No. 156/1981 dated 11.12.1981 Police Station Gilaula, Distt.Bahraich, Uttar Pradesh for the offence under Section 302 read withsection 34 of the Indian Penal Code, 1860 (‘IPC’ for short) and theorder of sentence directing them to undergo imprisonment for life.

2. By order dated 02.05.2019 leave was granted in the case ofSatya Deo.

3. By order dated 22.11.2019 the trial court was directed to conductan inquiry to ascertain if Satya Deo was juvenile on the date ofoccurrence i.e. 11.12.1981, on the basis of material which would beplaced on record.

4. Pursuant to the directions, the First Additional District andSessions Judge, Bahraich, Uttar Pradesh has conducted an inquiry andsubmitted the report dated 06.03.2020. As per the report, the date ofbirth of Satya Deo is 15.4.1965. Accordingly, he was 16 years 7 monthsand 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, whichdocuments were proved by Sh. Krishn Deo, Clerk at Ram NarayanSingh Inter College, Ramnagar Khajuri, Bahraich, and Smt. AnupamSingh, 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 thisexamination is 15.04.1965.

5. The report states that the complainant had died and consequentlynotice was served on the heirs of the complainant, who did not appearbefore the First Additional District and Sessions Judge, Bahraich. Theprosecution had not led any evidence.

6. The date of birth of Satya Deo is undisputed and not challengedBbefore us.

7. Notwithstanding this finding, the First Additional District andSessions Judge, Bahraich has observed that Satya Deo was not juvenileas per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16year 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’ underthe 1986 Act, which was below sixteen years in case of boy and beloweighteen years in case of girl on the date the boy or girl is brought forfirst appearance before the court or the competent authority, whereasthe 2000 Act, as noticed below, does not distinguish between boy orDgirl and person under the age of eighteen years is juvenile. Further,under the 2000 Act, the age on the date of commission of the offence isthe determining factor.

9. In light of the conflicting views expressed by this Court onapplication of the 2000 Act to the pending proceedings, vide decisions inEArnit Das v. State of Bihar[1] and Umesh Chandra v. State ofRajasthan[2], the matter was referred to Constitution Bench and decidedin the case reported as Pratap Singh v. State of Jharkhand andAnother[3]. The Constitution Bench formulated two points for decision,namely:

F“(a) Whether the date of occurrence will be the reckoning datefor determining the age of the alleged offender as juvenile offenderor the date when he is produced in the court/competent authority.

(b) Whether the Act of 2000 will be applicable in the case aproceeding is initiated under the 1986 Act and pending when theAct of 2000 was enforced with effect from 1-4-2001.”G

On the second question, the Constitution Bench held that the 2000Act would be applicable in pending proceeding instituted under the

1 (2000) 5 SCC 4882 (1982) 2 SCC 202H3 (2005) 3 SCC 551

1986 Act in any court or authority, if the person had not completed eighteenyears of age as on 1[st] April 2001, when the 2000 Act came into force.On the first question, it was held that the reckoning date for thedetermination of the age of the juvenile is the date of the offence and notthe date when he is produced before the authority or in court.Consequently, the 2000 Act would have prospective effect and notretrospective effect except in cases where the person had not completedthe age of eighteen years on the date of commencement of the 2000Act. Other pending cases would be governed by the provisions of the1986 Act.

10. Subsequent to the decision of the Constitution Bench in PratapSingh (supra), several amendments were made to the 2000 Act by theAmendment Act No. 33 of 2006. These amendments are significant, butfirst we will begin by referring to Section 2(l) of the 2000 Act whichdefines “juvenile in conflict with law” as:

“(l) “juvenile in conflict with law” means juvenile who is allegedto have committed an offence and has not completed eighteenthyear 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 commissionof offence.

11. Section 20 of the 2000 Act, which provides special provisionin 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, allproceedings in respect of juvenile pending in any court inany area on the date on which this Act comes into force inthat area, shall be continued in that court as if this Act hadnot been passed and if the court finds that the juvenile hascommitted an offence, it shall record such finding and insteadof passing any sentence in respect of the juvenile, forwardthe juvenile to the Board which shall pass orders in respectof that juvenile in accordance with the provisions of this Actas if it had been satisfied on inquiry under this Act that ajuvenile has committed the offence:

Provided that the Board may, for any adequate and specialreason to be mentioned in the order, review the case and passappropriate order in the interest of such juvenile.

Explanation.—In all pending cases including trial, revision,appeal or any other criminal proceedings in respect of aBjuvenile in conflict with law, in any court, the determinationof juvenility of such juvenile shall be in terms of clause (l)of Section 2, even if the juvenile ceases to be so on or beforethe date of commencement of this Act and the provisions ofthis Act shall apply as if the said provisions had been in force,for all purposes and at all material times when the allegedCoffence was committed.”Section 20 is special provision with respect to pending casesand begins with limited non-obstante or overriding clausenotwithstanding anything contained in the 2000 Act. Legislative intentclearly expressed states that all proceedings in respect of juvenileDpending in any court on the date on which the 2000 Act came into forceshall continue before that court as if the 2000 Act had not been passed.Though the proceedings are to continue before the court, the sectionstates that if the court comes to finding that juvenile has committedthe offence, it shall record the finding but instead of passing an order ofEsentence, forward the juvenile to the Juvenile Justice Board (Board)which shall then pass orders in accordance with the provisions of the2000 Act, as if the Board itself had conducted an inquiry and was satisfiedthat the juvenile had committed the offence. The proviso however statesthat the Board, for any adequate and special reasons, can review thecase and pass appropriate order in the interest of the juvenile. ExplanationFadded to Section 20 vide Act 33 of 2006, which again is of significantimportance, 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 evensubsequent proceedings by way of appeal, revision etc. or any otherGcriminal proceedings. Lastly, 2000 Act applies even to cases where theaccused was juvenile on the date of commission of the offence, buthad ceased to be juvenile on or before the date of commencement ofthe 2000 Act. In even such cases, provisions of the 2000 Act are toapply as if these provisions were in force for all purposes and at allmaterial time when the offence was committed.H

Thus, in respect of pending cases, Section 20 authoritativelycommands that the court must at any stage, even post the judgment bythe trial court when the matter is pending in appeal, revision or otherwise,consider and decide upon the question of juvenility. Juvenility is determinedby the age on the date of commission of the offence. The factum thatthe juvenile was an adult on the date of enforcement of the 2000 Act orsubsequently had attained adulthood would not matter. If the accusedwas juvenile, the court would, even when maintaining conviction, sendthe case to the Board to issue direction and order in accordance with theprovisions of the 2000 Act.

12. By the amendment Act No. 33 of 2006, Section 7-A wasinserted in the 2000 Act setting-out the procedure to be followed by thecourt to determine the claim of juvenility. Section 7A, which came intoeffect on 22.08.2006, reads:

“7-A. Procedure to be followed when claim of juvenility israised before any court.—(1) Whenever claim of juvenilityis raised before any court or court is of the opinion that anaccused person was juvenile on the date of commission ofthe offence, the court shall make an enquiry, take suchevidence as may be necessary (but not an affidavit) so as todetermine the age of such person, and shall record findingwhether the person is juvenile or child or not, stating hisage as nearly as may be:

Provided that claim of juvenility may be raised before anycourt and it shall be recognised at any stage, even after finaldisposal of the case, and such claim shall be determined interms of the provisions contained in this Act and the Rulesmade thereunder, even if the juvenile has ceased to be so onor before the date of commencement of this Act.

(2) If the court finds person to be juvenile on the date ofcommission of the offence under sub-section (1), it shallforward the juvenile to the Board for passing appropriateorder, and the sentence if any, passed by court shall bedeemed to have no effect.”

Proviso to Section 7A is important for our purpose as it states thatthe 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

Ashall be determined in terms of the provisions of the 2000 Act and therules framed thereunder, even when the accused had ceased to be ajuvenile on or before commencement of the 2000 Act. Thus it would notmatter if the accused, though juvenile on the date of commission of theoffence, had become an adult before or after the date of commencementof the 2000 Act on 01.04.2001. He would be entitled to benefit of theB2000 Act.

13. Section 64 of the 2000 Act was also amended by Act No. 33of 2006 by incorporating proviso and explanation and by replacing thewords ‘may direct’ with the words ‘shall direct’ in the main provision.Post the amendment, Section 64 reads as under:C

“64. Juvenile in conflict with law undergoing sentence atcommencement of this Act-

In any area in which this Act is brought into force, theState Government shall direct that juvenile in conflict withDlaw who is undergoing any sentence of imprisonment at thecommencement of this Act, shall, in lieu of undergoing suchsentence, be sent to special home or be kept in fit institutionin such manner as the State Government thinks fit for theremainder of the period of the sentence; and the provisionsof this Act shall apply to the juvenile as if he had been orderedEby the Board to be sent to such special home or institution or,as the case may be, ordered to be kept under protective careunder sub-section (2) of section 16 of this Act.

Provided that the State Government, or as the case maybe the board, may, for any adequate and special reason to berecorded in writing, review the case of juvenile in conflictwith law undergoing sentence of imprisonment, who hasceased 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 juvenile in conflictwith law is undergoing sentence of imprisonment at anystage on the date of commencement of this Act, his caseincluding the issue of juvenility, shall be deemed to be decidedin terms of clause (l) of section 2 and other provisionscontained in this act and the rules made thereunder,irrespective of the fact that he ceases to be juvenile on or

before such date and accordingly he shall be sent to thespecial home or fit institution, as the case may be, for theremainder of the period of the sentence but such sentenceshall not in any case exceed the maximum period provided insection 15 of this act.”

Substitution of the words ‘may direct’ with ‘shall direct’ in themain provision is to clarify that the provision is mandatory and notdirectory. Section 64 has to be read harmoniously with the newly addedproviso and explanation and also other amendments made vide Act 33of 2006 in Section 20 and by way of inserting Section 7A in the 2000Act. The main provision states that where juvenile in conflict with lawis undergoing any sentence of imprisonment at the commencement ofthe 2000 Act, he shall, in lieu of undergoing the sentence, be sent to aspecial home or be kept in fit institution in such manner as the stategovernment 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 beenordered by the Board to be sent to the special home or institution andordered to be kept under protective care under sub-section (2) of Section16 of the Act. The proviso states that the state government or the Board,for any adequate and special reasons to be recorded in writing, reviewthe case of the juvenile in conflict with law who is undergoing sentenceof imprisonment and who had ceased to be juvenile on or before thecommencement of the 2000 Act and pass appropriate orders. However,it is the explanation which is of extreme significance as it states that inall cases where juvenile in conflict with law is undergoing sentenceof imprisonment on the date of commencement of the 2000 Act, thejuvenile’s case including the issue of juvenility, shall be deemed to bedecided in terms of clause (l) to Section 2 and other provisions and rulesmade under the 2000 Act irrespective of the fact that the juvenile hadceased to be juvenile. Such juvenile shall be sent to special home or fitinstitution for the remainder period of his sentence but such sentenceshall not exceed the maximum period provided in Section 15 of the 2000Act. The statute overrules and modifies the sentence awarded, even indecided cases.

14. This Court in Dharambir v. State (NCT of Delhi) andAnother[4]had analysed the scheme and application of the 2000 Act tothe accused who were below the age of eighteen years on the date of

Acommission of offence which was committed prior to the enactment ofthe 2000 Act, to opine and hold:

“14. Proviso to sub-section (1) of Section 7-A contemplatesthat claim of juvenility can be raised before any court andhas to be recognised at any stage even after disposal of theBcase and such claim is required to be determined in terms ofthe provisions contained in the Act of 2000 and the Rulesframed thereunder, even if the juvenile has ceased to be soon or before the date of the commencement of the Act of 2000.The effect of the proviso is that juvenile who had notcompleted eighteen years of age on the date of commissionCof the offence would also be entitled to the benefit of the Actof 2000 as if the provisions of Section 2(k) of the said Act,which defines “juvenile” or “child” to mean person whohas not completed eighteenth year of age, had always beenin existence even during the operation of the 1986 Act.

15. It is, thus, manifest from conjoint reading of Sections2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, read with Rules12 and 98 of the Juvenile Justice (Care and Protection ofChildren) Rules, 2007 that all persons who were below theage of eighteen years on the date of commission of the offenceEeven prior to 1-4-2001 would be treated as juveniles even ifthe claim of juvenility is raised after they have attained theage of eighteen years on or before the date of thecommencement of the Act of 2000 and were undergoingsentences upon being convicted. In the view we have taken,we are fortified by the dictum of this Court in recent decisionFin 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 earlierdecisions, this court dealt with effect of Section 20 of the 2000 Act andits inter-play with the 1986 Act, to elucidate:

“18. The effect of Section 20 of the 2000 Act was consideredin Pratap Singh v. State of Jharkhand [Pratap Singh v. Stateof Jharkhand, (2005) 3 SCC 551: 2005 SCC (Cri) 742] andit was stated as under: (SCC p. 570, para 31)

H5 (2016) 11 SCC 786

“31. Section 20 of the Act as quoted above deals with thespecial provision in respect of pending cases and beginswith non obstante clause. The sentence ‘notwithstandinganything contained in this Act, all proceedings in respectof juvenile pending in any court in any area on the dateon which this Act came into force’ has great significance.The proceedings in respect of juvenile pending in anycourt referred to in Section 20 of the Act are relatable toproceedings initiated before the 2000 Act came into forceand which are pending when the 2000 Act came into force.The term “any court” would include even ordinary criminalcourts. If the person was “juvenile” under the 1986 Actthe proceedings would not be pending in criminal courts.They would be pending in criminal courts only if the boyhad crossed 16 years or the girl had crossed 18 years.This shows that Section 20 refers to cases where personhad ceased to be juvenile under the 1986 Act but hadnot yet crossed the age of 18 years then the pending caseshall continue in that court as if the 2000 Act has not beenpassed and if the court finds that the juvenile has committedan offence, it shall record such finding and instead ofpassing any sentence in respect of the juvenile, shallforward the juvenile to the Board which shall pass ordersin respect of that juvenile.”

19. In Bijender Singh v. State of Haryana [BijenderSingh v. State of Haryana, (2005) 3 SCC 685 : 2005 SCC(Cri) 889] , the legal position as regards Section 20 was statedin the following words: (SCC pp. 687-88, paras 8-10 & 12):

“8. One of the basic distinctions between the 1986 Actand the 2000 Act relates to the age of males and females.Under the 1986 Act, juvenile means male juvenile whohas not attained the age of 16 years, and female juvenilewho has not attained the age of 18 years. In the 2000 Act,the distinction between male and female juveniles on thebasis of age has not been maintained. The age-limit is 18years for both males and females.

9. person above 16 years in terms of the 1986 Act wasnot juvenile. In that view of the matter the question

ABC

whether person above 16 years becomes “juvenile”within the purview of the 2000 Act must be answered havingregard to the object and purport thereof.

10. In terms of the 1986 Act, person who was not juvenilecould be tried in any court. Section 20 of the 2000 Acttakes care of such situation stating that despite the samethe trial shall continue in that court as if that Act has notbeen passed and in the event, he is found to be guilty ofcommission of an offence, finding to that effect shall berecorded in the judgment of conviction, if any, but insteadof passing any sentence in relation to the juvenile, he wouldbe forwarded to the Juvenile Justice Board (in short “theBoard”) which shall pass orders in accordance with theprovisions of the Act as if it has been satisfied on inquirythat juvenile has committed the offence. legal fictionhas, thus, been created in the said provision. legal fictionas is well known must be given its full effect although ithas its limitations. …

12. Thus, by reason of legal fiction, person, althoughnot juvenile, has to be treated to be one by the Board forthe purpose of sentencing, which takes care of situationthat the person although not juvenile in terms of the 1986Act but still would be treated as such under the 2000 Actfor 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 oneof the issues and it was stated: (SCC p. 347, paras 11-12)

“11. It is plain from the language of the Explanation toSection 20 that in all pending cases, which would includenot only trials but even subsequent proceedings by way ofrevision or appeal, etc., the determination of juvenility ofa juvenile has to be in terms of clause (l) of Section 2,even if the juvenile ceases to be juvenile on or before 1-4-2001, when the 2000 Act came into force, and theprovisions of the Act would apply as if the said provision

had been in force for all purposes and for all materialtimes when the alleged offence was committed.

12. Clause (l) of Section 2 of the 2000 Act provides that“juvenile in conflict with law” means “juvenile” who isalleged to have committed an offence and has not completedeighteenth year of age as on the date of commission ofsuch offence. Section 20 also enables the court to considerand determine the juvenility of person even afterconviction by the regular court and also empowers thecourt, while maintaining the conviction, to set aside thesentence imposed and forward the case to the JuvenileJustice Board concerned for passing sentence inaccordance with the provisions of the 2000 Act.”

21. Similarly in Kalu v. State of Haryana [Kalu v. State ofHaryana, (2012) 8 SCC 34 : (2012) 3 SCC (Cri) 761] thisCourt summed up as under: (SCC p. 41, para 21)

“21. Section 20 makes special provision in respect ofpending cases. It states that notwithstanding anythingcontained in the Juvenile Act, all proceedings in respectof juvenile pending in any court in any area on the dateon which the Juvenile Act comes into force in that areashall be continued in that court as if the Juvenile Act hadnot been passed and if the court finds that the juvenilehas committed an offence, it shall record such finding andinstead of passing any sentence in respect of the juvenileforward the juvenile to the Board which shall pass ordersin respect of that juvenile in accordance with the provisionsof the Juvenile Act as if it had been satisfied on inquiryunder the Juvenile Act that the juvenile has committed theoffence. The Explanation to Section 20 makes it clear thatin all pending cases, which would include not only trialsbut even subsequent proceedings by way of revision orappeal, the determination of juvenility of juvenile wouldbe in terms of clause (l) of Section 2, even if the juvenileceased to be juvenile on or before 1-4-2001, when theJuvenile Act came into force, and the provisions of theJuvenile Act would apply as if the said provision had been

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Ain force for all purposes and for all material times whenthe alleged offence was committed.”

16. This position of law and principle was affirmed by this courtfor the first time in Hari Ram v. State of Rajasthan[6 ]in the followingwords:B“

“39. The Explanation which was added in 2006, makes it veryclear that in all pending cases, which would include not onlytrials but even subsequent proceedings by way of revision orappeal, the determination of juvenility of juvenile would bein terms of clause (l) of Section 2, even if the juvenile ceasedCto be juvenile on or before 1-4-2001, when the JuvenileJustice Act, 2000, came into force, and the provisions of theAct would apply as if the said provision had been in force forall purposes and for all material times when the alleged offencewas committed. In fact, Section 20 enables the court toconsider and determine the juvenility of person even afterDconviction by the regular court and also empowers the court,while maintaining the conviction, to set aside the sentenceimposed and forward the case to the Juvenile Justice Boardconcerned for passing sentence in accordance with theprovisions of the Juvenile Justice Act, 2000.”

17. In light of the legal position as expounded above and in theaforementioned judgments, this court at this stage can decide anddetermine the question of juvenility of Satya Deo, notwithstanding thefact that Satya Deo was not entitled to the benefit of being juvenile onthe date of the offence, under the 1986 Act, and had turned an adultFwhen the 2000 Act was enforced. As Satya Deo was less than 18 yearsof age on the date of commission of offence on 11.12.1981, he is entitledto be treated as 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 asthe 2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act,Galbeit sub-section (2) to Section 111 states that notwithstanding this repealanything done or any action taken under the 2000 Act shall be deemedto have been done or taken under the corresponding provisions of the2015 Act. Section 69 ‘Repeal and saving clause’ of the 2000 Act is

H6 (2009) 13 SCC 211

identical as sub-section (1) thereof had repealed the 1986 Act and sub-section (2) provides that notwithstanding such repeal anything done orany action taken under the 1986 Act shall be deemed to have been doneor taken under the corresponding provisions of the 2000 Act. However,what is important and relevant for us is Section 25 of the 2015 Actwhich, as per the headnote to that Section, incorporates ‘special provisionin respect of pending cases’ and reads:

“Notwithstanding anything contained in this Act, all proceedingsin respect of child alleged or found to be in conflict with lawpending before any Board or court on the date of commencementof this Act, shall be continued in that Board or court as if this Acthad not been enacted.”

Section 25 is non-obstante clause which applies to all proceedingsin respect of child[7] alleged or found to be in conflict with law pendingbefore any Board or court on the date of commencement of the 2015Act, that is, 31[st] December 2015. It states that the pending proceedingsshall be continued in that Board or court as if the 2015 Act had not beenpassed. In Akhtari Bi v. State of M.P.[8], it was observed that the right toappeal being statutory right, the trial court’s verdict does not attainfinality during the pendency of the appeal and for that purpose the trial isdeemed to be continuing despite conviction. Thus, the use of the word‘any’ before the board or court in Section 25 of the 2015 Act, wouldmean and include any court including the appellate court or court beforewhich the revision petition is pending. This is also apparent from the useof the words ‘a child alleged or found to be in conflict with law’. Theword ‘found’ is used in past-tense and would apply in cases where anorder/judgment has been passed. The word ‘alleged’ would refer to thoseproceedings where no final order has been passed and the matter is sub-judice. Further, Section 25 of the 2015 Act applies to proceedings beforethe board or the court and as noticed above, it would include any court,including the appellate court or the court where the revision petition ispending. In the context of Section 25, the expression ‘court’ is not restrictedto mean 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[9].The definition clause is applicable unless the context otherwise requires.7 The expression ‘child’ as per clause (12) to Section 2 of the 2015 Act reads – ‘a personwho has not completed eighteen years of age’.8 (2001) 4 SCC 355

9 “(23) – “court” means civil court, which has jurisdiction in matters of adoption andguardianship and may include the District Court, Family Court and City Civil Courts’;”

AIn case of Section 25, the legislature is obviously not referring to civilcourt as the section deals with pending proceedings in respect of childalleged or found to be in conflict with law, which cannot be proceedingspending before civil court. Since the Act of 2015 protects and affirmsthe application of the 2000 Act to all pending proceedings, we do notread that the legislative intent of the 2015 Act is to the contrary, that is,Bto apply the 2015 Act to all pending proceedings.

Section 6 of the General Clauses Act, 1897 that provides theconsequence of “repeal” of an enactment reads:

C6. Effect of repeal. Where this Act, or any Central Act orRegulation made after the commencement of this Act, repealsany enactment hitherto made or hereafter to be made, then,unless different intention appears, the repeal shall not:

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(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 Actread with Section 25 of the 2015 Act, an accused cannot be denied hisEright to be treated as juvenile when he was less than eighteen years ofage at the time of commission of the offence, right which he acquiredand has fructified under the 2000 Act, even if the offence was committedprior to enforcement of the 2000 Act on 01.04.2001. In terms of Section25 of the 2015 Act, 2000 Act would continue to apply and govern theFproceedings which were pending when the 2015 Act was enforced. (Inthe present case, we are not required to examine and decide the questionwhether 2000 Act or the 2015 Act would apply when the offence wascommitted before the enactment of the 2015 Act but the charge-sheetwas filed after enactment of the 2015 Act. The answer would requireexamination of clause (1) to Article 20 of the Constitution and severalGother aspects as the 2015 Act provide an entirely different regime inrespect of children in conflict with law and the procedure to be followedin such cases. These aspects and issues have not been argued beforeus.)

19. Decision of this court in Gaurav Kumar @ Monu v. State ofHaryana[10], which was relied upon by the learned counsel for the stateis of no avail as this decision is on interpretation and application of Rule12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007,for the procedure to be followed in determination of age. The procedureadopted by the learned District and Sessions Judge is not challenged andquestioned before us. We would again record that Satya Deo was lessthan 18 years of age on the date of commission of offence and thisremains undisputed and unchallenged.

20. Satya Deo has undergone incarceration for more than 2 yearsthus far. In Mumtaz @ Muntyaz (supra), dealing with quantum andnature of punishment which should be given to person who was ajuvenile on the date of commission of offence, this court, while placingreliance upon an earlier decision in Jitendra Singh v. State of UttarPradesh[11], had held:

22. It is thus well settled that in terms of Section 20 of the2000 Act, in all cases where the accused was above 16 yearsbut below 18 years of age on the date of occurrence, theproceedings pending in the court would continue and be takento the logical end subject to an exception that upon findingthe juvenile to be guilty, the court would not pass an order ofsentence against him but the juvenile would be referred tothe Board for appropriate orders under the 2000 Act. Whatkind of order could be passed in matter where claim ofjuvenility came to be accepted in situation similar to thepresent case, was dealt with by this Court in JitendraSingh 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. perusal of the “punishments” provided for underthe Juvenile Justice Act, 1986 indicate that given the natureof the offence committed by the appellant, advising oradmonishing him [clause (a)] is hardly “punishment”that can be awarded since it is not at all commensuratewith the gravity of the crime. Similarly, considering hisage of about 40 years, it is completely illusory to expect

10 (2019) 4 SCC 549

11 (2013) 11 SCC 193

Athe appellant to be released on probation of good conduct,to be placed under the care of any parent, guardian or fitperson [clause (b)]. For the same reason, the appellantcannot be released on probation of good conduct underthe care of fit institution [clause (c)] nor can he be sentto special home under Section 10 of the Juvenile JusticeBAct, 1986 which is intended to be for the rehabilitationand reformation of delinquent juveniles [clause (d)]. Theonly realistic punishment that can possibly be awarded tothe appellant on the facts of this case is to require him topay fine under clause (e) of Section 21(1) of the JuvenileCJustice Act, 1986.”

21. Following the aforesaid ratio and the legal position elucidatedabove, while we uphold the conviction of Satya Deo, we would set asidethe sentence of life imprisonment. We would remit the matter to thejurisdiction of the Board for passing appropriate order/directions underDSection 15 of the 2000 Act including the question of determination and

payment of appropriate quantum of fine and the compensation to beawarded to the family of the deceased. We make no affirmative ornegative comments either way on the order/direction under Section 15of the 2000 Act.

22. We would, accordingly, direct the jail authorities to produceSatya Deo before the Board within seven days from the date of receiptof copy of this judgment. The Board shall then pass appropriate orderregarding detention and custody and proceed thereafter to pass order/directions under the 2000 Act. -

F23. The appeal filed by the Satya Deo is partly allowed in theaforesaid terms and all the pending application are disposed of.

Divya Pandey

Appeal partly allowed.