KARAN @ FATIYA versus THE STATE OF MADHYA PRADESH

[2023] 2 S.C.R. 587

KARAN @ FATIYA

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 572-573 of 2019)

MARCH 03, 2023

[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]

Juvenile Justice (Care and Protection) Act, 2015 – Claim ofJuvenility – Appellant convicted for various offences under IPCand POCSO Act was awarded death sentence – Death sentenceaffirmed by High Court – During the pendency of the presentappeals, appellant claimed juvenility – Trial Court was directed tosubmit report after due inquiry – Report submitted, appellant’s dateof birth was found to be conclusively proved as 25.07.2002 – Dateof incident being 15.12.2017, the appellant was aged 15 years 04months and 20 days on the date of the incident – Held: No reasonto doubt the correctness of the conclusion arrived at by the TrialCourt regarding the date of birth of the appellant – Appellant heldto be aged 15 years, 4 months and 20 days on the date of the incident– Conviction of the appellant upheld, sentence set aside – Appellantbeing less than 16 years on the date of commission of the offence,the maximum punishment that could be awarded is upto 3 years –However, appellant has already undergone incarceration of morethan 5 years – Incarceration beyond 3 years would be illegal –Appellant to be released from judicial custody – Impugned judgementpassed by High Court modified – Penal Code, 1860 – ss. 363,376(2)(i), 302, 201 – POCSO Act – s.5(m)/6.

Juvenile Justice (Care and Protection) Act, 2015 – s.94 –Ossification test – Plea of the State that the appellant be subjectedto an ossification test for determining his correct age as thedocuments filed during the inquiry before the Trial Court were notcovered u/s.94 – Held: Rejected – First preference for determinationof age is the birth certificate issued by the school or matriculationcertificate – It is in the absence of the first category of documentsthat the birth certificate from the municipal corporation is to beconsidered – An ossification test comes into play when the documentsare not available under the first and second columns – In the instant

Acase, appellant’s birth certificate from the school (a governmentprimary school) was available – It has been duly proved in theinquiry before the Trial Court, no reason to doubt its correctness –Further, an ossification test only gives broad assessment of theage – It does not give an exact age – There is an element of marginof plus or minus 1 to 2 years – Thus, in the present case, even ifBossification test is permitted, it will have no bearing on theassessment made by the Trial Court after the inquiry.

Juvenile Justice (Care and Protection) Act, 2015 – s.9 – Pleaof Juvenility – Held: Can be raised before any Court and at anystage even after the case has been finally decided – The claim soCmade would be determined even if such person has seized to be achild whether on or before the commencement of 2015 Act.

Juvenile Justice (Care and Protection) Act, 2015 – s.18 –Held: Juvenile Justice Board having found child to be in conflictwith law who may have committed petty or serious offence andDwhere heinous offence is committed, the child should be below 16years, can pass various orders u/clauses (a) to (g) of sub-section(1) and also sub-section (2) – Whatever punishment is to be provided,the same cannot exceed period of three years.

Juvenile Justice (Care and Protection) Act, 2015 – s.9(3) –EAccused held to be juvenile after conviction at the stage of appeal,status of the trial, conviction and sentence recorded – Held: trialconducted and conviction recorded by the Sessions Court wouldnot be held to be vitiated in law even though subsequently the persontried has been held to be child – Intention of the legislature wasFto give benefit to person who is declared to be child on the dateof the offence only with respect to its sentence part – It is only thequestion of sentence for which the provisions of the 2015 Act wouldbe attracted – Any sentence in excess of what is permissible underthe 2015 Act will have to be accordingly amended as per theprovisions of the 2015 Act – Juvenile Justice (Care and ProtectionGof Children) Act, 2000 – s.7A.

Partly allowing the appeals, the Court

HELD: 1.1 During the inquiry before the Trial Court, theState did not take any objection whatsoever with regard to thedocuments filed on behalf of the appellant and the evidence ledH

on behalf of the appellant so much so that the State did not evencross- examine the witnesses who were examined in the inquiry.Permitting the State to raise such an objection now once theconclusive finding has been recorded by the Trial Court after anelaborate inquiry would be unjust and not warranted. The Statehad full opportunity to raise such plea before the Trial Court inthe inquiry and then it was for the Trial Court to take call as towhether any ossification test was necessary or not. Ossificationtest will only give broad assessment of the age. It cannot givean exact age. There is also an element of margin of plus or minus1 to 2 years. Even if the said test is permitted, it will have nobearing on the assessment made by the Trial Court after theinquiry. The first preference for determination of age is the birthcertificate issued by the school or matriculation certificate.Although it has been submitted that no birth certificate of theschool was submitted, learned counsel for the appellant haspointed out from the documents attached to the report that inaddition to the mark sheets and the school leaving certificate,the birth certificate was also filed which is Annexure I-3 to thereport. It is in the absence of the first category of documentsbeing not available that the birth certificate from the municipalcorporation is to be considered. If under the first and secondcolumns, documents are not available, then reference to medicalboard and holding of an ossification test comes into play. In thepresent case, there being birth certificate from the school availableand that too government primary school, there is no reason todoubt its correctness and all the more when it has been dulyproved in the inquiry before the Trial Court. Thus, the objectionsraised by the learned counsel for the State are liable to be rejected.[Paras 11 and 12][596-H; 597-A-G]

1.2 Section 9 firstly gives right to person alleged tohave committed an offence to claim that he is child on the dateof commission of offence and if such claim is raised, the Courtconcerned shall make an inquiry, take such evidence as may benecessary other than the affidavit to determine the age of suchperson. The proviso to sub-section (2) further makes it clearthat such claim can be raised before any Court and the samecould be recognised at any stage even after the case has been

Afinally decided. The claim so made would be determined inaccordance with the provisions of the 2015 Act and the rulesmade thereunder even if such person has seized to be childwhether on or before the commencement of 2015 Act. The lawprovides full coverage to person who is established to be achild on the date of the offence to avail the benefits admissible toBa child under the 2015 Act even if the case has been finally decidedand also such person has attained majority. Further, sub-section(3) provides that if it is found in the inquiry that such person wasa child on the date of commission of such offence then the Courtis required to forward the child to the Juvenile Justice Board forCpassing appropriate orders and further if any sentence has beenimposed by the Court, the same shall be deemed to have no effect.In view of the above statutory provisions and in view of thefindings recorded, the appellant having been held to be childon the date of commission of the offence, the sentence imposedhas to be made ineffective. [Para 14][598-H; 599-A-D]D

1.3 On perusal of the aforesaid Section 18 of the 2015Act, it is to be noticed that the JJB having found child to be inconflict with law who may have committed petty or seriousoffence and where heinous offence is committed, the child shouldbe below 16 years, can pass various orders under clauses (a) toE(g) of sub-section (1) and also sub-section (2). However, the netresult is that whatever punishment is to be provided, the samecannot exceed period of three years and the JJB has to takefull care of ensuring the best facilities that could be provided tothe child for providing reformative services including education,Fskill development, counselling and psychiatric support. In thepresent case, the appellant is held to be less than 16 years, andtherefore, the maximum punishment that could be awarded isupto 3 years. The appellant has already undergone more than 5years. His incarceration beyond 3 years would be illegal, and

therefore, he would be liable to be released forthwith on thisGcount also. [Paras 16 and 17][601-C-E]

1.4 According to sub-section (3) of section 9 of the 2015Act, the Court which finds that the person who committed theoffence was child on the date of commission of such offence

would forward the child to the JJB for passing appropriate ordersand sentence, if any, passed by the Court shall be deemed tohave no effect. This does not specifically or even impliedly providethat the conviction recorded by any Court with respect to personwho has subsequently after the disposal of the case found to bejuvenile or child, would also lose its effect rather it is only thesentence if any passed by the Court would be deemed to have noeffect. There is another reason why trial conducted andconviction recorded by the Sessions Court would not be held tobe vitiated in law even though subsequently the person tried hasbeen held to be child. The intention of the legislature was togive benefit to person who is declared to be child on the dateof the offence only with respect to its sentence part. If theconviction was also to be made ineffective then either thejurisdiction of regular Sessions Court would have been completelyexcluded not only under section 9 of the 2015 Act but also undersection 25 of the 2015 Act, provision would have been made thaton finding being recorded that the person being tried is child,a pending trial should also be relegated to the JJB and also thatsuch trial would be held to be null and void. Instead, under section25 of the 2015 Act, it is clearly provided that any proceedingpending before any Board or Court on the date of commencementof the 2015 Act shall be continued in that Board or Court as ifthis Act had not been enacted. Merits of the conviction could betested and the conviction which was recorded cannot be held tobe vitiated in law merely because the inquiry was not conductedby JJB. It is only the question of sentence for which the provisionsof the 2015 Act would be attracted and any sentence in excess ofwhat is permissible under the 2015 Act will have to be accordinglyamended as per the provisions of the 2015 Act. Otherwise, theaccused who has committed heinous offence and who did notclaim juvenility before the Trial Court would be allowed to goscot-free. This is also not the object and intention provided inthe 2015 Act. The object under the 2015 Act dealing with therights and liberties of the juvenile is only to ensure that if he orshe could be brought into the main stream by awarding lessersentence and also directing for other facilities for welfare of thejuvenile in conflict with law during his stay in any of the institutionsdefined under the 2015 Act. [Paras 30-33][608-F-G; 609-A-D, F-H; 610-A]

A1.5 The conviction of the appellant is upheld; however, thesentence is set aside. Further as the appellant at present wouldbe more than 20 years old, there would be no requirement ofsending him to the JJB or any other child care facility orinstitution. Appellant is in judicial custody. He shall be releasedforthwith. The impugned judgement stands modified to theBaforesaid extent. [Para 35][610-C]

Jitendra Singh alias Babboo Singh and another vs. Stateof Uttar Pradesh (2013) 11 SCC 193 : [2013] 13 SCR764; Mahesh vs. State of Rajasthan and others (2018)SCC Online SC 3655; Satya Deo alias Bhoorey vs. StateCof Uttar Pradesh (2020) 10 SCC 555 – affirmed.

Raju vs. State of Haryana (2019) 14 SCC 401 : [2019]4 SCR 18; Ashok Kumar Mehra and Another vs. Stateof Punjab and Others (2019) 6 SCC 132 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 572-573 of 2019.

From the Judgment and Order dated 15.11.2018 of the High Courtof Madhya Pradesh at Indore in CRRFC No.04 of 2018 and CRA No.4379 of 2018.F

Aman Lekhi, Sr. Adv., Ritwiz Rishab, Ms. Sakshi Jain, Ms. SnehaSonam, Rajat Mittal, Advs. for the Appellant.

Mrs. Ankita Choudhary, D.A.G., Sunny Choudhary, Yashraj SinghBundela, Abhinav Shrivastava, Karan Bishnoi, Advs. for the Respondent.

GThe Judgment of the Court was delivered by

VIKRAM NATH, J.

1. The present appeals assail the correctness of the judgment andorder dated 15.11.2018 whereby Division Bench of the High Court ofMadhya Pradesh, Bench at Indore, affirmed the death sentence awardedHby the Trial Court and at the same time dismissed the appeal preferred

by the appellant against his conviction and sentence awarded by theTrial Court.

2. The present appellant was charged for offences under sections363, 376(2)(i) of the Indian Penal Code[1], sections 5(m)/6 of the POCSOAct and sections 302 and 201 IPC. The Trial Court vide judgment dated17.05.2018 convicted the appellant for all the offences and awarded thefollowing sentences as against each of the offences:

3. The appeal preferred by the appellant was dismissed by theHigh Court and the death reference forwarded by the Trial Court wasaffirmed, as already noted above.

4. During the pendency of these appeals, the appellant moved anapplication being I.A.No.43271 of 2019 claiming juvenility andconsequently the benefits available under the provisions of the JuvenileJustice (Care and Protection) Act, 2015[2]. This application was apparentlyfiled under Section 9(2) of the 2015 Act. This Court, vide order dated28.09.2022 required the Trial Court to submit its report after due inquiryas to whether the appellant was juvenile on the date when the offencein question was committed. The order dated 28.09.2022 is reproducedbelow:

“Pursuant to directions issued on the last occasion, certain Reports/Documents have been placed on record.

Without commenting on merits or demerits of the rival submissions,we direct as under:

a. The copies of the record be sent to the concerned Trial Courtas early as possible in physical form as well as in digitized form.

1 In short, “IPC”

2 The 2015 Act

Ab. The accused shall be produced before the concerned Trial Courtwithin week’s time.

c. The Trial Court shall endeavour to consider whether theappellant was juvenile as on the date when the offence in questionwas committed.

d. For arriving at this conclusion, the Trial Court shall be entitledto call for and consider all the relevant documents as well as havethe facility of medical check-up of the appellant in manner knownto law.

e. The Report in that behalf shall be submitted in the Registry ofCthis Court within four weeks.

List this matter for further consideration along with the Report inthe week commencing 31st October 2022.”

5. Pursuant to the said order, report has been received from theDCourt of First Additional Sessions Judge, Manawar, District Dhar, MadhyaPradesh dated 27.10.2022 running into 20 pages along with all the materialevidence both documentary and oral adduced before it on the basis ofwhich the report has been submitted. As per the said report, the appellant’sdate of birth was found to be conclusively proved as 25.07.2002. Thedate of the incident being 15.12.2017, the appellant was 15 years 04Emonths and 20 days of age on the date of the incident. The operativepart of the report is reproduced below:

“It is found conclusively proved that date of birth of the applicant/accused Karan is 25.07.2002. It is also proved taking into account25.07.2002 as his date of birth, the applicant was 15 years 04Fmonths 20 days of age as on 15.12.2017, and being below 16years of age, he was Child as per section 2(12) of J.J. Act, 2015.Accordingly, the inquiry proceedings are concluded.”

6. At the outset learned senior counsel for the appellant hasclarified that for the present he is only pressing the plea of juvenility andGif he fails on that count would address on the issue of conviction andsentence. Further based on the said report, learned senior counsel forthe appellant submitted firstly that the sentence awarded cannot be giveneffect to under Section 9(2) of the 2015 Act. Secondly, it is submittedthat from the date of the arrest in December, 2017, the appellant hasalready undergone incarceration of more than 5 years whereas underH

section 18 of the 2015 Act, juvenile below 16 years, even if convictedfor heinous offence, the maximum sentence that can be awarded is 3years stay in special home. In view of the above, according to learnedsenior counsel the appellant is liable to be released forthwith.

7. Learned counsel for the State of Madhya Pradesh hasstrenuously urged that the appellant be subjected to an ossification testto determine the correct age, as according to her, the documents filedduring the inquiry before the Trial Court are not covered under Section94 of the 2015 Act, and therefore, the only option left was that anossification test be conducted by medical board. No other submissionhas been advanced on behalf of the State.

8. Before considering the submissions advanced by learnedcounsel for the parties, it would be necessary to first consider the inquiryreport submitted by the Trial Court dated 27.10.2022. If the said reportis accepted and approved, then the appellant would be declared to be achild which may then entail necessary consequences as per the 2015Act. It would be relevant to note here that no objection has been filed bythe respondent-State to the report submitted by the Trial Court. The onlysubmission advanced on behalf of the respondent-State is for getting theossification test conducted.

9. We have perused the report and also the material evidence ledbefore the Trial Court on the basis of which the conclusion has beendrawn by the Trial Court. The report is based upon documentary evidenceas also oral evidence of the present head-mistress (IW-01), the retiredheadmaster (IW-08), five teachers of the primary institution (IW-02,IW-04, IW-07, IW-09 and IW-10) and also the guardian of the appellant(IW-06). It would also be pertinent to notice that the institution is not aprivate institution but is government primary school and this Courtdoes not find any reason to dis-believe or even doubt the testimony ofgovernment servants both working and retired. In addition to the marksheets by the institution, there is also the date of birth certificate issuedby the institution (I-3). Further, the original Scholar register and otherdocuments were also produced before the Trial Court in the inquiry.This Court, therefore, has no reason to doubt the correctness of theconclusion arrived at by the Trial Court regarding the date of birth of theappellant. We, therefore, accept the report of the Trial Court and holdthat the appellant was aged 15 years, 4 months and 20 days on the dateof the incident.

A10. In order to test the submission of learned counsel for therespondent-State, Section 94 of the 2015 Act which is relevant isreproduced hereunder:

“94 Presumption and determination of age:

(1) Where, it is obvious to the Committee or the Board, based onBthe appearance of the person brought before it under any of theprovisions of this Act (other than for the purpose of giving evidence)that the said person is child, the Committee or the Board shallrecord such observation stating the age of the child as nearly asmay be and proceed with the inquiry under section 14 or sectionC36, as the case may be, without waiting for further confirmationof the age.

(2) In case, the Committee or the Board has reasonable groundsfor doubt regarding whether the person brought before it is childor not, the Committee or the Board, as the case may be, shallDundertake the process of age determination, by seeking evidenceby obtaining –

(i) the date of birth certificate from the school, or the matriculationor equivalent certificate from the concerned examination Board,if available; and in the absence thereof;

E(ii) the birth certificate given by corporation or municipalauthority or panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall bedetermined by an ossification test or any other latest medical agedetermination test conducted on the orders of the Committee orFthe Board:

Provided such age determination test conducted on the order ofthe Committee or the Board shall be completed within fifteendays from the date of such order.

(3) The age recorded by the Committee or the Board to be theGage of person so brought before it shall, for the purpose of thisAct, be deemed to be the true age of that person.”

11. On careful perusal of the above noted provision and thefacts of the present case, the above argument of the learned counsel forthe State is liable to be rejected for the following reasons:H

a) firstly, that during the inquiry before the Trial Court, the Statedid not take any objection whatsoever with regard to thedocuments filed on behalf of the appellant and the evidence ledon behalf of the appellant so much so that the State did not evencross-examine the witnesses who were examined in the inquiry.Permitting the State to raise such an objection now once theconclusive finding has been recorded by the Trial Court after anelaborate inquiry would be unjust and not warranted. The Statehad full opportunity to raise such plea before the Trial Court inthe inquiry and then it was for the Trial Court to take call as towhether any ossification test was necessary or not;

b) Secondly, ossification test will only give broad assessment ofthe age. It cannot give an exact age. There is also an element ofmargin of plus or minus 1 to 2 years. Even if we permit the saidtest, it does not lead us anywhere. It will have no bearing on theassessment made by the Trial Court after the inquiry;

c) Thirdly, the first preference for determination of age is thebirth certificate issued by the school or matriculation certificate.Although it has been submitted that no birth certificate of theschool was submitted, learned counsel for the appellant has pointedout from the documents attached to the report that in addition tothe mark sheets and the school leaving certificate, the birthcertificate was also filed which is Annexure I-3 to the report. It isin the absence of the first category of documents being notavailable that the birth certificate from the municipal corporationis to be considered; and

d) Lastly, if under the first and second columns, documents arenot available, then reference to medical board and holding of anossification test comes into play.

12. In the present case, there being birth certificate from the schoolavailable and that too government primary school, we do not find anyreason to doubt its correctness and all the more when it has been dulyproved in the inquiry before the Trial Court. Thus, the objections raisedby the learned counsel for the State are liable to be rejected.

13. The next question is as to what relief the appellant can begranted in view of the fact that he has been held to be child andthat too below 16 years of age under the 2015 Act. In this context

ASection 9 of the 2015 Act would be relevant. The same is reproducedhereunder:

“9. Procedure to be followed by Magistrate who has notbeen empowered under this Act.—

(1) When Magistrate, not empowered to exercise the powersBof the Board under this Act is of the opinion that the person allegedto have committed the offence and brought before him is child,he shall, without any delay, record such opinion and forward thechild immediately along with the record of such proceedings tothe Board having jurisdiction.

(2) In case person alleged to have committed an offence claimsbefore court other than Board, that the person is child orwas child on the date of commission of the offence, or if thecourt itself is of the opinion that the person was child on the dateof commission of the offence, the said court shall make an inquiry,Dtake such evidence as may be necessary (but not an affidavit) todetermine the age of such person, and shall record finding onthe matter, stating the age of the person as nearly as may be:

Provided that such claim may be raised before any court and itshall be recognised at any stage,even after final disposal of theEcase, and such claim shall be determined in accordance withtheprovisions contained in this Act and the rules made thereundereven if the person has ceased to be childon or before the date ofcommencement of this Act.

(3) If the court finds that person has committed an offence andwas child on the date ofcommission of such offence, it shallFforward the child to the Board for passing appropriate orders andthesentence, if any, passed by the court shall be deemed to haveno effect.

(4) In case person under this section is required to be kept inprotective custody, while the person’sclaimof being child is beingGinquired into, such person may be placed, in the intervening periodin aplace of safety.”

14. perusal of the aforesaid section firstly gives right to aperson alleged to have committed an offence to claim that he is childon the date of commission of offence and if such claim is raised, theH

Court concerned shall make an inquiry, take such evidence as may benecessary other than the affidavit to determine the age of such person.The proviso to sub-section (2) further makes it clear that such claimcan be raised before any Court and the same could be recognised at anystage even after the case has been finally decided. The claim so madewould be determined in accordance with the provisions of the 2015 Actand the rules made thereunder even if such person has seized to be achild whether on or before the commencement of 2015 Act. The lawprovides full coverage to person who is established to be child on thedate of the offence to avail the benefits admissible to child under the2015 Act even if the case has been finally decided and also such personhas attained majority. Further, sub-section (3) provides that if it is foundin the inquiry that such person was child on the date of commission ofsuch offence then the Court is required to forward the child to the JuvenileJustice Board[3 ]for passing appropriate orders and further if any sentencehas been imposed by the Court, the same shall be deemed to have noeffect. In view of the above statutory provisions and in view of thefindings recorded, the appellant having been held to be child on thedate of commission of the offence, the sentence imposed has to be madeineffective.

15. The relief to be extended to the appellant may be examinedthrough different perspective also, that is, whether he has alreadyundergone maximum sentence which can be awarded against child inconflict with law for committing heinous offence and who is belowage of 16 years. Section 18 of the 2015 Act would be relevant in thisrespect and the same is reproduced hereunder:

“18. Orders regarding child found to be in conflict with law.—

(1) Where Board is satisfied on inquiry that child irrespectiveof age has committed petty offence, or serious offence, ora child below the age of sixteen years has committed heinousoffence, then, notwithstanding anything contrary contained inany other law for the time being in force, and based on thenature of offence, specific need for supervision or intervention,circumstances as brought out in the social investigation reportand past conduct of the child, the Board may, if it so thinksfit,—

3 In short, “JJB”

A(a) allow the child to go home after advice or admonition byfollowing appropriate inquiry and counselling to such child and tohis parents or the guardian;

(b) direct the child to participate in group counselling and similaractivities;

(c) order the child to perform community service under thesupervision of an organisation or institution, or specified person,persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to payfine:

Provided that, in case the child is working, it may be ensuredthat the provisions of any labour law for the time being in forceare not violated;

(e) direct the child to be released on probation of good conductand placed under the care of any parent, guardian or fit person,Don such parent, guardian or fit person executing bond, with orwithout surety, as the Board may require, for the good behaviourand child’s well-being for any period not exceeding three years;

(f) direct the child to be released on probation of good conductand placed under the care and supervision of any fit facility forEensuring the good behaviour and child’s well-being for any periodnot exceeding three years;

(g) direct the child to be sent to special home, for such period,not exceeding three years, as it thinks fit, for providing reformativeservices including education, skill development, counselling,Fbehaviour modification therapy, and psychiatric support during theperiod of stay in the special home:

Provided that if the conduct and behaviour of the child hasbeen such that, it would not be in the child’s interest, or in theinterest of other children housed in special home, the BoardGmay send such child to the place of safety.

(2) If an order is passed under clauses (a) to (g) of sub-section(1), the Board may, in addition pass orders to—

(i) attend school; or

(ii) attend vocational training centre; or

(iii) attend therapeutic centre; or

(iv) prohibit the child from visiting, frequenting or appearing at aspecified place; or

(v) undergo de-addiction programme.

(3) Where the Board after preliminary assessment under section15 pass an order that there is need for trial of the said child asan adult, then the Board may order transfer of the trial of the caseto the Children’s Court having jurisdiction to try such offences.”

16. On perusal of the aforesaid Section 18 of the 2015 Act, it isto be noticed that the JJB having found child to be in conflict with lawwho may have committed petty or serious offence and where heinousoffence is committed, the child should be below 16 years, can pass variousorders under clauses (a) to (g) of sub-section (1) and also sub-section(2). However, the net result is that whatever punishment is to be provided,the same cannot exceed period of three years and the JJB has to takefull care of ensuring the best facilities that could be provided to the childfor providing reformative services including education, skill development,counselling and psychiatric support.

17. In the present case, the appellant is held to be less than 16years, and therefore, the maximum punishment that could be awarded isupto 3 years. The appellant has already undergone more than 5 years.His incarceration beyond 3 years would be illegal, and therefore, hewould be liable to be released forthwith on this count also.

18. Having considered the facts of the case and the findingsrecorded above, it would also be appropriate to briefly deal with thecase law on the point as to whether once an accused after convictionat the stage of appeal is held to be juvenile/child under the provisionsof the 2015 Act,what would be the status of the trial, the convictionand sentence recorded by the Trial Court and the appellateCourts.Whether the trial itself would stand vitiated for lack of jurisdictionby the regular Sessions Court and it would be the JJB alone whichcould make an inquiry into the offence committed based upon theevidence led by the prosecution. If the inquiry has not been conductedby the JJB, then whether the entire proceedings need to be quashed oronly the sentencing aspect would require consideration in accordancewith the 2015 Act.

A19. We may note here at the outset that the appellant for thepresent has chosen not to challenge the conviction but is only claimingjuvenility and consequently the benefit of sentence provided under the2015 Act, reserving his right to address on conviction and sentence if hefails on the preliminary issue of juvenility.B20. There are series of judgments on the said issue. Some have

B20. There are series of judgments on the said issue. Some haveset aside the conviction, sentence and have terminated the proceedings,others have upheld the conviction but on the basis of sentence alreadyundergone being more than the maximum permissible under the JuvenileJustice (Care and Protection of Children) Act, 2000[4] have directed forrelease of the accused and third, where after maintaining the conviction,Cthis Court has referred the matter to the JJB for passing appropriateorders on sentence. All the judgments delivered earlier which are brieflydiscussed hereunder relate to the 2000 Act. Present case falls under the2015 Act as the offence itself is of the year 2017.

21. In the case of Jitendra Singh alias Babboo Singh andDanother vs. State of Uttar Pradesh[5], two-Judge Bench of this Courtconfirmed the conviction but as the appellant therein could only beawarded imposition of fine, the existing fine of Rs.100/- was found to begrossly inadequate and accordingly, the matter was remitted to the JJBfor determining the appropriate quantum of fine that should be levied onEthe appellant and the compensation that should be awarded to the familyof the victim.

22. Justice Madan B. Lokur, the first author of the judgmentdealt with the issue as to whether the conviction could be sustained bythis Court or it was only the sentence which was to be dealt with inFaccordance with the 2000 Act. Almost all the previous judgments werereferred to in paragraphs 24, 24.1 to 24.7, 25, 25.1 to 25.2, 26, 26.1 to26.2 and 27 of the report with respect to all the four categories of thecases wherein different views have been taken by this Court. The firstcategory was where conviction was upheld but sentence quashed. Thesecond category was where conviction was upheld but sentence wasGmodified to the period already undergone. The third category was whereconviction and sentence both were set aside and the fourth categorywas where the conviction was upheld and the matter referred to the JJB

4 In short “2000 Act”H5 2013 (11) SCC 193

for awarding suitable sentence. In paragraph 28 of the report JusticeLokur sums up the four categories. Further in paragraph 29, referenceis made to section 20 of the 2000 Act and it was finally concluded inparagraph 30 that the matter needs to be examined on merits and if thejuvenile is found guilty of the offence, he could not be allowed to gounpunished but considering the provisions of the 2000 Act, the questionof sentence must be left to the JJB. It would be proper to reproduceparagraphs 28, 29 and 30 of the report of Justice Lokur, which read asfollows:

“28.The sum and substance of the above discussion is that inone set of cases this Court has found the juvenile guilty of thecrime alleged to have been committed by him but he has gonevirtually unpunished since this Court quashed the sentenceawarded to him. In another set of cases, this Court has takenthe view, on the facts of the case that the juvenile is adequatelypunished for the offence committed by him by serving out someperiod in detention. In the third set of cases, this Court hasremitted the entire case for consideration by the jurisdictionalJuvenile Justice Board, both on the innocence or guilt of thejuvenile as well as the sentence to be awarded if the juvenile isfound guilty. In the fourth set of cases, this Court has examinedthe case on merits and after having found the juvenile guilty ofthe offence, remitted the matter to the jurisdictional JuvenileJustice Board on the award of sentence.29. In our opinion, the course to adopt is laid down in Section 20of the Juvenile Justice (Care and Protection of Children) Act,2000. This reads as follows:

“20. Special provision in respect of pending cases.—Notwithstanding anything contained in this Act, all proceedings inrespect of juvenile pending in any court in any area on the dateon which this Act comes into force in that area, shall be continuedin that court as if this Act had not been passed and if the courtfinds that the juvenile has committed an offence, it shall recordsuch finding and instead of passing any sentence in respect of thejuvenile, forward the juvenile to the Board which shall pass ordersin respect of that juvenile in accordance with the provisions ofthis Act as 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, appealor any other criminal proceedings in respect of juvenile in conflictBwith law, in any court, the determination of juvenility of such ajuvenile shall be in terms of clause (l) of Section 2, even if thejuvenile ceases to be so on or before the date of commencementof this Act and the provisions of this Act shall apply as if the saidprovisions had been in force, for all purposes and at all materialtimes when the alleged offence was committed.”

30. It is clear that the case of the juvenile has to be examined onmerits. If it found that the juvenile is guilty of the offence allegedto have been committed, he simply cannot go unpunished.However, as the law stands, the punishment to be awarded to himor her must be left to the Juvenile Justice Board constituted underDthe Juvenile Justice (Care and Protection of Children) Act, 2000.This is the plain requirement of Section 20 of the Juvenile Justice(Care and Protection of Children) Act, 2000. In other words,Ashwani Kumar Saxena (2012) 9 SCC 750, should befollowed.”

E23. Justice T.S. Thakur while concurring with the view takenby Justice Lokur, in his supplementing opinion also dealt with this aspectof the matter and in paragraph 82 of the report was of the view thatinsofar as the conviction was concerned, the same could be examinedby this Court, however, on the sentence part, the benefit admissible underFthe 2000 Act ought to be extended. Paragraph 82 of the report isreproduced hereunder: -

“82. careful reading of the above would show that although aclaim of juvenility can be raised by person at any stage andbefore any court, upon such court finding the person to be juvenileGon the date of the commission of the offence, it has to forwardthe juvenile to the Board for passing appropriate orders and thesentence, if any, passed shall be deemed to have (sic no) effect.There is no provision suggesting, leave alone making it obligatoryfor the court before whom the claim for juvenility is made, to setaside the conviction of the juvenile on the ground that on the dateHof commission of the offence he was juvenile, and hence not

triable by an ordinary criminal court. Applying the maximexpression unius est exclusion alterius, it would be reasonableto hold that the law insofar as it requires reference to be madeto the Board excludes by necessary implication any intention onthe part of the legislature requiring the courts to set aside theconviction recorded by the lower court. Parliament, it appears,was content with setting aside the sentence of imprisonmentawarded to the juvenile and making of reference to the Boardwithout specifically or by implication requiring the court concernedto alter or set aside the conviction. That perhaps is the reasonwhy this Court has in several decisions simply set aside the sentenceawarded to the juvenile without interfering with the convictionrecorded by the court concerned and thereby complied with themandate of Section 7-A(2) of the Act.”

24. Similar view was taken by two-Judge Bench of this Court inthe case of Mahesh vs. State of Rajasthan and others[6],wherein thisCourt confirmed the conviction. However, the sentence imposed wasmodified to the period undergone. The aforesaid judgment relies uponthe law laid down in the case of Jitendra (supra).After framing theissue as to whether the validity/correctness of the conviction recordedby Trial Court could be maintained, this Court proceeded to give dueconsideration in paragraph nos. 4, 5 and 6 of the judgment. Thereafterthe Bench proceeded to consider the merits of the conviction and upheldthe same in paragraph no.7. Paragraph nos. 4 to 7 of the report arereproduced hereunder:

“4. In the aforesaid facts, two questions arise for determination inthe present appeals before us. The first is with regard to the validity/correctness of the conviction recorded by the learned trial Courtand affirmed by the High Court and, secondly, if the conviction tobe maintained what should be the appropriate measure ofpunishment/sentence and whether the same should be imposedby this Court or the matter be remanded to the Juvenile JusticeBoard in accordance with the provisions of Section 20 of the Actof 2000.

5. The position in law in this regard is somewhat unsettled as hasbeen noticed and dealt with by this Court in Jitendra Singh alias

Babboo Singh and another versus State of Uttar Pradesh whereinin paragraphs 24 to 27 four categories of cases have been culledout where apparently different approaches had been adopted bythis Court. The net result is summed up in paragraph 28 of theaforesaid report which explains the details of the categorizationmade in the earlier paragraphs of the said report. Paragraph 28 ofthe said report, therefore, would require specific notice and isreproduced below:

“28. The sum and substance of the above discussion is that inone set of cases this Court has found the juvenile guilty of thecrime alleged to have been committed by him but he has gonevirtually unpunished since this Court quashed the sentenceawarded to him. In another set of cases, this Court has takenthe view, on the facts of the case that the juvenile is adequatelypunished for the offence committed by him by serving out someperiod in detention. In the third set of cases, this Court hasremitted the entire case for consideration by the jurisdictionalJuvenile Justice Board, both on the innocence or guilt of thejuvenile as well as the sentence to be awarded if the juvenile isfound guilty. In the fourth set of cases, this Court has examinedthe case on merits and after having found the juvenile guilty ofthe offence, remitted the matter to the jurisdictional Juvenile

Justice Board on the award of sentence.”

6. The validity of the conviction in respect of the incident whichoccurred almost two decades back, in our considered view, oughtto be decided in these appeals and the entire of the proceedingsincluding the punishment/sentence awarded should not be interferedwith on the mere ground that the accused appellants were juvenileson the date of commission of the alleged crime. Judicial approachesmust always be realistic and have some relation to the groundrealities. We, therefore, adopt one of the possible approaches thathas been earlier adopted by this Court in the four categories ofcases mentioned above to examine the correctness of theconviction of the accused appellants under the provisions of theIPC, as noticed above.

7. In this regard, having perused the materials on record we findno ground whatsoever to take view different from what hasbeen recorded by the learned trial Court and affirmed by the High

Court. The conviction of the accused appellants under Sections323, 324, 325, 427, 455 read with Section 149 IPC accordinglyshall stand affirmed.”

25. In the case of Satya Deo alias Bhoorey vs. State of UttarPradesh[7], following the ratio and legal position laid down in JitendraSingh (supra), this Court upheld the conviction and after setting asidethe sentence of life imprisonment awarded to the appellant, it was directedthat the jail authorities would produce the appellant before the JJB withinseven days, and thereafter, the JJB would pass appropriate ordersregarding the detention and custody with respect to the appellant therein.

26. We may also refer to the judgment of this Court in the case of Rajuvs. State of Haryana[8], wherein Justice Mohan M. Shantanagoudarspeaking for himself, Justice N.V.Ramana (as he then was) and JusticeIndira Banerjee, set aside the conviction and sentence of the appellanttherein and as the appellant therein had already undergone almost sixyears’ incarceration but had been released on bail, the bail bonds weredischarged and all proceedings against the appellant were declared tohave terminated.

27. In the aforesaid case, the appellant had not taken the plea ofjuvenility before the Trial Court, however, such plea was raised beforethe High Court but the same was rejected. However, this Court got aninquiry conducted by the Registrar (Judicial) of this Court who foundhim to be aged less than 18 years. The judgment in this case mainly dealtwith the issue as to whether the report of Registrar (Judicial) of thisCourt could be accepted over and above the finding of the High Courtwhich was different. The judgment proceeds to deal with this issue andultimately comes to the conclusion that this could be done provided thisCourt itself tests the correctness of the report of the Registrar (Judicial).It is only in the penultimate paragraph no. 27 while allowing the appeal itgranted the relief of setting aside the conviction, sentence and furtherterminated the entire proceedings. There is no prior discussion on theissue whether conviction was required to be set aside or not on thistechnical ground. Merits of the conviction was not gone into. No ratio islaid down in the said case on this issue. Only while granting relief,conviction has also been set aside.

7 (2020) 10 SCC 555

8 (2019) 14 SCC 401

A28. Following the above judgment in the case of Raju (supra), atwo-judge Bench of this Court in the case of Ashok Kumar Mehraand Another Vs. State of Punjab and Others[9] set aside the judgmentof conviction and sentence awarded to appellant no. 2 therein who hadclaimed to be juvenile. Paragraph No. 14 of the said judgment whichgrants the relief is reproduced herein:B

“In view of the foregoing discussion, we are of the consideredopinion that since Appellant 2 was juvenile on the date ofcommission of the offence and though till date he has alreadyundergone considerable jail sentence partly as an undertrial andCpartly as convict, yet the appeal filed by Appellant 2 has to beallowed as was done in the case of Raju (supra) without goinginto the merits of the case and passing any other consequentialorder in that regard.”

29. It will be pertinent to mention that in this judgment also thereDis no discussion with regard to the issue as to whether the convictionshould be set aside. This judgment also does not lay down any ratio thatif with respect to juvenile trial has been conducted by SessionsCourt without the accused having claimed juvenility before it, convictioncould be set aside as being vitiated in law if subsequently it is held thatthe accused was juvenile.E

30. The above judgments relate to an offence covered by eitherthe Juvenile Justice Act, 1986[10] or the 2000 Act. We now proceed tobriefly discuss the provisions under the 2015 Act. Section 9 of the 2015Act is already reproduced in the earlier part of this judgment. AccordingFto sub-section (3) of section 9 of the 2015 Act, the Court which findsthat the person who committed the offence was child on the date ofcommission of such offence would forward the child to the JJB forpassing appropriate orders and sentence, if any, passed by the Courtshall be deemed to have no effect. This does not specifically or evenimpliedly provide that the conviction recorded by any Court with respectGto person who has subsequently after the disposal of the case found tobe juvenile or child, would also lose its effect rather it is only thesentence if any passed by the Court would be deemed to have no effect.

9 In 2019 (6) SCC 132

10 “the 1986 Act”

31. There is another reason why trial conducted and convictionrecorded by the Sessions Court would not be held to be vitiated inlaw even though subsequently the person tried has been held to be achild.

32. The intention of the legislature was to give benefit to personwho is declared to be child on the date of the offence only with respectto its sentence part. If the conviction was also to be made ineffectivethen either the jurisdiction of regular Sessions Court would have beencompletely excluded not only under section 9 of the 2015 Act but alsounder section 25 of the 2015 Act, provision would have been made thaton finding being recorded that the person being tried is child, pendingtrial should also be relegated to the JJB and also that such trial would beheld to be null and void. Instead, under section 25 of the 2015 Act, it isclearly provided that any proceeding pending before any Board or Courton the date of commencement of the 2015 Act shall be continued in thatBoard or Court as if this Act had not been enacted. Section 25 isreproduced hereunder:

-“25. Special provision in respect of pending cases.Notwithstanding anything contained in this Act, all proceedings inrespect of child alleged or found to be in conflict with law pendingbefore any Board or court on the date of commencement of thisAct, shall be continued in that Board or court as if this Act had notbeen enacted.”

33. Having considered the statutory provisions laid down in section9 of the 2015 Act and also section 7A of the 2000 Act which is identicalto section 9 of the 2015 Act, we are of the view that merits of theconviction could be tested and the conviction which was recorded cannotbe held to be vitiated in law merely because the inquiry was not conductedby JJB. It is only the question of sentence for which the provisions of the2015 Act would be attracted and any sentence in excess of what ispermissible under the 2015 Act will have to be accordingly amended asper the provisions of the 2015 Act. Otherwise, the accused who hascommitted heinous offence and who did not claim juvenility before theTrial Court would be allowed to go scot-free. This is also not the objectand intention provided in the 2015 Act. The object under the 2015 Actdealing with the rights and liberties of the juvenile is only to ensure thatif he or she could be brought into the main stream by awardinglessersentence and also directing for other facilities for welfare of the juvenile

Ain conflict with law during his stay in any of the institutions defined underthe 2015 Act.

34. In view of the above discussion and the position in law as laiddown by the aforesaid judgments and many others referred to in theabove judgments, we approve the view taken by this court in the case ofBJitendra Singh (supra), Mahesh (supra) and Satya Deo (supra).

35. For all the reasons recorded above, it is ordered as follows:

The conviction of the appellant is upheld;however,the sentence isset aside. Further as the appellant at present would be more than 20years old, there would be no requirement of sending him to the JJB orCany other child care facility or institution. Appellant is in judicial custody.He shall be released forthwith. The impugned judgement shall standmodified to the aforesaid extent.

36. Both the appeals stand partly allowed.

D37. Pending applications, if any, are disposed of.

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeals partly allowed.