Patna High Court
SANJAY TANTI and ORSversusTHE STATE OF BIHAR
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The appellants were juveniles at the time of the alleged offence, the trial court erred in not applying the Juvenile Justice Act, and the prosecution failed to establish the elements of IPC 363A, leading to the setting aside of all convictions.
Summary
The appellants – three brothers – were convicted in 2010 for kidnapping, criminal conspiracy and tampering with evidence under IPC sections 363A, 120B and 201, and sentenced to rigorous imprisonment. They contended that they were juveniles at the time of the alleged offence (October‑December 2000) and that the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended) required the trial court to determine their age and forward them to the Juvenile Justice Board, rendering the conviction and sentence void. The High Court examined the provisions of Section 7‑A, Section 20 and Section 64 of the 2000 Act, the retrospective application of the Act to pending cases, and the Supreme Court’s pronouncements in several juvenile‑justice cases. It held that the appellants were indeed juveniles on the date of the offence and that the trial court had failed to apply the statutory procedure, but also found that the prosecution had not proved the essential ingredients of kidnapping for the purpose of begging under Section 363A. Consequently, the convictions under all three IPC sections were set aside and the appellants were acquitted. The appeal was therefore allowed and the lower‑court judgment quashed.
Issues considered
- Whether the appellants were juveniles at the time of the alleged offence and whether the Juvenile Justice (Care and Protection of Children) Act, 2000 applies retrospectively to pending cases.
- Whether the trial court was obligated to determine juvenility under Section 7‑A and forward the case to the Juvenile Justice Board.
- Whether the prosecution proved the essential ingredients of the offence under IPC section 363A (kidnapping a minor for the purpose of begging).
- Whether the convictions under IPC sections 120B and 201 stand in view of the lack of proof of conspiracy and tampering with evidence.
Legislation cited
- Code of Criminal Procedure — s. 313, 374(2), 389(1)
- Indian Penal Code — s. 120B, 201, 363A
- Juvenile Justice (Care and Protection of Children) Act, 2000 — s. 20, 2(l), 64, 7-A
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 7-A
Subjects
- juvenile justice
- juvenility
- IPC 363A
- kidnapping
- criminal conspiracy
- tampering with evidence
- Section 7-A
- Section 20
- appeal
- acquittal
- concurrent sentencing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.645 of 2010
======================================================
1. Sanjay Tanti S/o Sri Radhey Shyam Tanti R/O Vill-Kabil, P.S.-Laxhmipur,
Distt-Jamui
2. Vijay Tanti S/o Sri Radhey Shayam Tanti R/O Vill-Kabil, P.S.-Laxhmipur,
Distt-Jamui
3. Amarjit Tanti S/o Sri Radhey Shayam Tanti R/O Vill-Kabil, P.S.-Laxhmipur,
Distt-Jamui
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Indu Bhushan, Advocate.
Mr. Narsingh Tanti, Advocate.
For the Respondent/s : Mr. Abhay Kumar, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 15-05-2026
Heard Mr. Indu Bhushan, learned counsel along with
Mr. Narsingh Tanti, learned counsel appearing on behalf of the
appellants and Mr. Abhay Kumar, learned APP for the State.
2. The appellants have preferred the present appeal
under Section 374(2) read with Section 389(1) of the Code of
Criminal Procedure challenging the judgment of conviction and
order of sentence dated 14.06.2010 passed by the learned
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Additional District and Sessions Judge, F.T.C.-IV, Jamui in S.T.
No. 154 of 2007, whereby and whereunder, the appellants have
been convicted for the offence punishable under Sections 363A,
120B and 201 of the Indian Penal Code and have been
sentenced to undergo rigorous imprisonment for seven years
and Rs. 2000/- fine and in default of payment of fine, to
undergo rigorous imprisonment for one year under Section
363A IPC; to undergo rigorous imprisonment for two years for
the offence under Section 120B IPC and R.I. for three years and
fine of Rs. 1000/- and and in default of payment of fine, to
undergo rigorous imprisonment for six months under Section
201 IPC. All the sentences were directed to run concurrently.
BRIEF FACTS OF THE CASE
3. The prosecution story, in brief, is that on
10.10.2000 co-accused Mania Devi came to the house of the
complainant/informant Chameli Devi and requested her to send
her son Sanjay Ram along with her sons Sanjay and Vijay to
Delhi, but the complainant refused. It is alleged that on the
same day at about 10:00 P.M., accused persons Radhey Tanti,
Vijay Tanti, Sanjay Tanti and Amarjit Tanti came to the house
of the informant and talked with her son Sanjay Ram.
Thereafter, at about 3:00 A.M., the informant woke up on
hearing some sound and allegedly saw the accused persons
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persuading her son to accompany them on the assurance of
earning handsome money, though he was refusing to go. It is
further alleged that accused Vijay and Sanjay forcibly took
away Sanjay Ram, while the other accused persons assured the
informant that her son would safely return. The informant
subsequently made enquiries from the accused persons, who
allegedly kept giving false assurances and later demanded a
sum of Rs. 80,000/- in lieu of her son. On the basis of the
complaint petition, Luxmipur P.S. Case No. 85/2001 dated
07.08.2001 was instituted under Sections 120B, 363A and 201
of the Indian Penal Code against the accused persons. After
investigation, charge-sheet No. 52/2004 dated 15.07.2004 was
submitted against accused Vijay Tanti, Sanjay Tanti and Amarjit
Tanti, while investigation against the remaining accused
persons was kept pending.
ARGUMENT ON BEHALF OF THE APPELLANTS
4. Learned counsel appearing on behalf of the
appellants submitted that there is no dispute in the present case
with regard to the age of the appellants, who were juveniles on
the date of the alleged offence. The judgment is of the year
2010, by which time the Juvenile Justice (Care and Protection
of Children) Act, 2000 (hereinafter referred to as “ Act, 2000”)
had already been amended by Act 33 of 2006, whereby Section
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7-A was inserted with effect from 22.08.2006. The provisions
of Section 7-A read as follows:
“7-A. Procedure to be followed when claim
of juvenility is raised before any court. – (1) Whenever a
claim of juvenility is raised before any court or a court is of
the opinion that an accused person was a juvenile on the
date of commission of the offence, the court shall make an
inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and
shall record a finding whether the person is a juvenile or a
child or not, stating his age as nearly as may be: Provided
that a claim of juvenility may be raised before any court
and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of this Act.
(2) If the court finds a person to be a
juvenile on the date of commission of the offence under
sub-section (1), it shall forward the juvenile to the Board
for passing appropriate orders and the sentence, if any,
passed by a court shall be deemed to have no effect.”
5. Learned counsel submitted that a bare perusal of
the provisions of Section 7-A and the procedure prescribed
therein makes it evident that the learned trial court is required to
determine the age of the appellants in accordance with the
provisions of the Act, 2000 and the Rules framed thereunder. It
is further submitted that if the court finds a person to be a
juvenile on the date of commission of the offence, as
contemplated under sub-section (1) of Section 7-A, the court is
required to forward the juvenile to the Juvenile Justice Board
for passing appropriate orders, and any sentence passed by the
court is deemed to have no effect.
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6. Referring to the allegations made in the
complaint petition, which was subsequently converted into an
F.I.R., learned counsel submitted that, on the basis of the
materials that surfaced during the course of inquiry and trial, no
case is made out under Section 363A of the Indian Penal Code.
At best, according to the learned counsel, an offence of
wrongful confinement punishable under Section 341 of the
Indian Penal Code is made out, and the sentence is required to
be reduced accordingly, considering the juvenility of the
appellants in light of the provisions of the Act, 2000. It is
further submitted that the issue of juvenility was ignored by the
learned trial court, and there is no dispute that all the appellants
have since crossed the age of 18 years. Nevertheless, for the
purpose of hearing the present appeal, the proceedings continue
as if they are juveniles and there being serious procedural
lapses, the impugned judgment is required to be interfered with.
ARGUMENT ON BEHALF OF THE STATE
7. Per contra, Mr. Abhay Kumar, learned APP
appearing for the State submitted that the question of juvenility
was never raised at any stage of the trial. However, he contends
that the mandatory provision of Section 7-A of the Act, 2000,
which is para materia with the provisions of sub-section (2) of
Section 9 of the Juvenile Justice (Care and Protection of
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Children) Act, 2015, permits the plea of juvenility to be raised
in “any court” “at any stage”, even after final disposal of a
Special Leave Petition under Article 136 of the Constitution of
India.
8. He further submitted that, on the plain reading of
Section 7-A, the courts are under an obligation to consider the
plea of juvenility and to grant appropriate relief, if upon inquiry,
it is found that the convict was a juvenile on the date of
commission of the offence. In support of his submission,
learned counsel has relied upon the judgment of the Apex Court
in case of Hansraj v. State of U.P., Writ Petition (Criminal)
No. 340 of 2025.
ANALYSIS AND CONCLUSION
9. Heard the parties.
10. Having heard the rival submissions made on
behalf of the parties, it appears from the records that the
question of juvenility was never raised at any stage during the
trial, and the trial court proceeded in accordance with the
provisions of the Code of Criminal Procedure. The alleged
offence is said to have continued from 10.10.2000 to
12.12.2000. The complaint was subsequently converted into an
F.I.R., being Laxmipur P.S. Case No. 85 of 2001, on
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07.08.2001. The judgment was delivered on 14.06.2010 and on
the date their statement was recorded under Section 313 Cr.P.C.,
i.e. on 19.05.2010, appellant no. 1 was 23 years old, appellant
no. 2 was 26 years old, and appellant no. 3 was 22 years old.
Thus, all the appellants were below 16 years of age on the date
of the alleged occurrence. The Act, 2000 came into force with
effect from 01.04.2001. The said Act has prospective effect and
not retrospective effect, except in cases where the person
concerned had not attained the age of eighteen years as on the
date of commencement of the Act, 2000.
11. For the better appreciation of the case, I find it
apt to reproduce Sections 363A, 120-B and 201 of IPC which is
as under:
363A. Kidnapping or maiming a
minor for purposes of begging.—
(1)Whoever kidnaps any minor or, not being the
lawful guardian of a minor, obtains the custody of
the minor, in order that such minor may be em-
ployed or used for the purpose of begging shall be
punishable with imprisonment of either description
for a term which may extend to ten years, and shall
also be liable to fine.
(2)Whoever maims any minor in order that such mi-
nor may be employed or used for the purposes of
begging shall be punishable with imprisonment for
life, and shall also be liable to fine.
(3)Where any person, not being the lawful guardian
of a minor, employs or uses such minor for the pur-
poses of begging, it shall be presumed, unless the
contrary is proved, that he kidnapped or otherwise
obtained the custody of that minor in order that the
minor might be employed or used for the purposes
of begging.
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(4)In this section,—
(a)‘begging’ means—(i)soliciting or receiving alms
in a public place, whether under the pretence of
singing, dancing, fortune-telling, performing tricks
or selling articles or otherwise;
(ii)entering on any private premises for the purpose
of soliciting or receiving alms;
(iii)exposing or exhibiting, with the object of obtain-
ing or extorting alms, any sore, wound, injury, de-
formity or disease, whether of himself or of any
other person or of an animal;
(iv)using a minor as an exhibit for the purpose of
soliciting or receiving alms;
(b)‘minor’ means—(i)in the case of a male, a per-
son under sixteen years of age; and(ii)in the case of
a female, a person under eighteen years of age.
120B. Punishment of criminal conspiracy.—
(1)Whoever is a party to a criminal conspiracy to
commit an offence punishable with death, imprison-
ment for life or rigorous imprisonment for a term of
two years or upwards, shall, where no express pro-
vision is made in this Code for the punishment of
such a conspiracy, be punished in the same manner
as if he had abetted such offence.
(2)Whoever is a party to a criminal conspiracy
other than a criminal conspiracy to commit an of-
fence punishable as aforesaid shall be punished
with imprisonment of either description for a term
not exceeding six months, or with fine or with both.
201. Causing disappearance of evidence of offence,
or giving false information to screen offender.—
Whoever, knowing or having reason to believe that
an offence has been committed, causes any evidence
of the commission of that offence to disappear, with
the intention of screening the offender from legal
punishment, or with that intention gives any infor-
mation respecting the offence which he knows or be-
lieves to be false;if a capital offence.— shall, if the
offence which he knows or believes to have been
committed is punishable with death, be punished
with imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine;if punishable with imprisonment for
life.— and if the offence is punishable with impris-
onment for life, or with imprisonment which may ex-
tend to ten years, shall be punished with imprison-
ment of either description for a term which may ex-
tend to three years, and shall also be liable to fine;if
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punishable with less than ten years’ imprisonment.
— and if the offence is punishable with imprison-
ment for any term not extending to ten years, shall
be punished with imprisonment of the description
provided for the offence, for a term which may ex-
tend to one-fourth part of the longest term of the im-
prisonment provided for the offence, or with fine, or
with both.IllustrationA, knowing that B has mur-
dered Z, assists B to hide the body with the intention
of screening B from punishment. A is liable to im-
prisonment of either description for seven years,
and also to fine.
201. Causing disappearance of evidence of of-
fence, or giving false information to screen of-
fender.—
Whoever, knowing or having reason to believe that
an offence has been committed, causes any evidence
of the commission of that offence to disappear, with
the intention of screening the offender from legal
punishment, or with that intention gives any infor-
mation respecting the offence which he knows or be-
lieves to be false;if a capital offence.— shall, if the
offence which he knows or believes to have been
committed is punishable with death, be punished
with imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine;if punishable with imprisonment for
life.— and if the offence is punishable with impris-
onment for life, or with imprisonment which may ex-
tend to ten years, shall be punished with imprison-
ment of either description for a term which may ex-
tend to three years, and shall also be liable to fine;if
punishable with less than ten years’ imprisonment.
— and if the offence is punishable with imprison-
ment for any term not extending to ten years, shall
be punished with imprisonment of the description
provided for the offence, for a term which may ex-
tend to one-fourth part of the longest term of the im-
prisonment provided for the offence, or with fine, or
with both.IllustrationA, knowing that B has mur-
dered Z, assists B to hide the body with the intention
of screening B from punishment. A is liable to im-
prisonment of either description for seven years,
and also to fine.
12. Subsequent amendment was brought in the Act,
2000 vide Amendment Act 33 of 2006. Section 2(l) of the Act,
2000 defines “juvenile in conflict with law” as under:
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“2. (l) “juvenile in conflict with law” means a juvenile
who is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of
commission of such offence.”
(emphasis supplied)
13. In the present case, in terms of clause (l) of
Section 2 of the Act, 2000, all the appellants were below 18
years of age on the date their statements under Section 313
Cr.P.C. were recorded, i.e., on 19.05.2010, and were therefore
juveniles on the date of commission of the offence.
14. I also find that the Section 20 of the Act, 2000
provides a special provision in respect of pending cases, post
the amendment vide Act 33 of 2006, reads as under:
“20. Special provision in respect of pending cases.—
Notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any court in
any area on the date on which this Act comes into force in
that area, shall be continued in that court as if this Act had
not been passed and if the court finds that the juvenile has
committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass orders
in respect of that juvenile in accordance with the provisions
of this Act as if it had been satisfied on inquiry under this
Act that a juvenile has committed the offence:
Provided that the Board may, for any adequate and special
reason to be mentioned in the order, review the case and
pass appropriate order in the interest of such juvenile.
Explanation.—In all pending cases including trial, revision,
appeal or any other criminal proceedings in respect of a
juvenile in conflict with law, in any court, the
determination of juvenility of such a juvenile shall be in
terms of clause (l) of Section 2, even if the juvenile ceases
to be so on or before the date of commencement of this
Act and the provisions of this Act shall apply as if the said
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provisions had been in force, for all purposes and at all
material times when the alleged offence was committed.”
(emphasis supplied)
15. The mandate of Section 20 provides that where
a juvenile is found to have committed an offence, the court,
instead of recording a finding of conviction, is required to
forward the juvenile to the Juvenile Justice Board, which shall,
thereafter, pass appropriate orders in accordance with the
provisions of the Juvenile Justice Act, 2000, as if, the Board
itself had conducted the inquiry and was satisfied that the
juvenile had committed the offence.
16. Thus the expression “all pending cases”
includes not only trials, but also subsequent proceedings by
way of appeal, revision, or any other criminal proceeding. The
Act is applicable even in cases where the accused was a
juvenile on the date of commission of the offence, but had
ceased to be a juvenile on or before the date of commencement
of the Juvenile Justice Act, 2000.
17. Section 7-A of the Act, 2000 provides that the
claim of juvenility may be raised before “any court” “at any
stage”, even after the final disposal of the case. When such
claim is made, it shall be determined in terms of the provisions
of the 2000 Act and the Rules framed thereunder.
18. Section 64 of the Act 2000 provides that a
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juvenile in conflict with law who is undergoing any sentence of
imprisonment at the commencement of this Act, shall, in lieu of
undergoing such sentence, be sent to a special home or be kept
in fit institution in such manner as the State Government thinks
fit.
19. In light of the provisions of the Juvenile Justice
Act, 2000, and considering that the appellants were below 18
years of age on the date of commission of the offence, which
continued from 10.10.2000 to 12.12.2000, whether they are
entitled to the benefit contemplated under the Act, 2000?
20. The another question which arises for
consideration whether after coming into force of the Juvenile
Justice (Care and Protection of Children) Act, 2015
(“hereinafter referred to as “the 2015 Act”), in the case of the
present appeal which is pending since year 2010 till date when
we are in year 2026, the 2015 Act which is in force would be
applicable?
21. This question was considered by the Apex
Court in the case of Satya Deo @ Bhoorey v. State of U.P.,
reported in (2020) 10 SCC 555, I find it apt to reproduce the
following discussion made by the Apex Court, which inter alia
is as under:
“17. This Court in Dharambir v. State (NCT of Delhi)
[Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 :
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(2010) 2 SCC (Cri) 1274] had analysed the scheme and
application of the 2000 Act to the accused who were below
the age of eighteen years on the date of commission of
offence which was committed prior to the enactment of the
2000 Act, to opine and hold : (SCC p. 348, paras 14-15)
“14. Proviso to sub-section (1) of Section 7-A
contemplates that a claim of juvenility can be raised before
any court and has to be recognised at any stage even after
disposal of the case and such claim is required to be
determined in terms of the provisions contained in the 2000
Act and the Rules framed thereunder, even if the juvenile
has ceased to be so on or before the date of the
commencement of the 2000 Act. The effect of the proviso is
that a juvenile who had not completed eighteen years of
age on the date of commission of the offence would also be
entitled to the benefit of the 2000 Act as if the provisions of
Section 2(k) of the said Act, which defines “juvenile” or
“child” to mean a person who has not completed
eighteenth year of age, had always been in existence even
during the operation of the 1986 Act.
15. It is, thus, manifest from a conjoint reading of Sections
2(k), 2(l), 7-A, 20 and 49 of the 2000 Act, read with Rules
12 and 98 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 that all persons who were below the
age of eighteen years on the date of commission of the
offence even prior to 1-4-2001 would be treated as
juveniles even if the claim of juvenility is raised after they
have attained the age of eighteen years on or before the
date of the commencement of the 2000 Act and were
undergoing sentences upon being convicted. In the view we
have taken, we are fortified by the dictum of this Court in a
recent decision in Hari Ram v. State of Rajasthan [Hari
Ram v. State of Rajasthan, (2009) 13 SCC 211 : (2010) 1
SCC (Cri) 987] .”
18. In Mumtaz v. State of U.P. [Mumtaz v. State of U.P.,
(2016) 11 SCC 786 : (2017) 1 SCC (Cri) 610] , while
referring to several earlier decisions, this Court dealt with
the effect of Section 20 of the 2000 Act and its interplay
with the 1986 Act, to elucidate : (SCC pp. 793-95, paras
18-21)
“18. The effect of Section 20 of the 2000 Act was
considered in Pratap Singh v. State of Jharkhand [Pratap
Singh v. State of Jharkhand, (2005) 3 SCC 551 : 2005 SCC
(Cri) 742] and it was stated as under : (SCC p. 570, para
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31)
‘31. Section 20 of the Act as quoted above deals with the
special provision in respect of pending cases and begins
with a non obstante clause. The sentence “notwithstanding
anything contained in this Act, all proceedings in respect of
a juvenile pending in any court in any area on the date on
which this Act came into force” has great significance. The
proceedings in respect of a juvenile pending in any court
referred to in Section 20 of the Act are relatable to
proceedings initiated before the 2000 Act came into force
and which are pending when the 2000 Act came into force.
The term “any court” would include even ordinary
criminal courts. If the person was a “juvenile” under the
1986 Act the proceedings would not be pending in criminal
courts. They would be pending in criminal courts only if the
boy had crossed 16 years or the girl had crossed 18 years.
This shows that Section 20 refers to cases where a person
had ceased to be a juvenile under the 1986 Act but had not
yet crossed the age of 18 years then the pending case shall
continue in that court as if the 2000 Act has not been
passed and if the court finds that the juvenile has
committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile,
shall forward the juvenile to the Board which shall pass
orders in respect of that juvenile.’
19. In Bijender Singh v. State of Haryana [Bijender Singh v.
State of Haryana, (2005) 3 SCC 685 : 2005 SCC (Cri) 889]
, the legal position as regards Section 20 was stated in the
following words : (SCC pp. 687-88, paras 8-10 & 12):
‘8. One of the basic distinctions between the 1986 Act and
the 2000 Act relates to the age of males and females. Under
the 1986 Act, a juvenile means a male juvenile who has not
attained the age of 16 years, and a female juvenile who has
not attained the age of 18 years. In the 2000 Act, the
distinction between male and female juveniles on the basis
of age has not been maintained. The age-limit is 18 years
for both males and females.
9. A person above 16 years in terms of the 1986 Act was
not a juvenile. In that view of the matter, the question
whether a person above 16 years becomes “juvenile”
within the purview of the 2000 Act must be answered
having regard to the object and purport thereof.
10. In terms of the 1986 Act, a person who was not juvenile
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could be tried in any court. Section 20 of the 2000 Act takes
care of such a situation stating that despite the same the
trial shall continue in that court as if that Act has not been
passed and in the event, he is found to be guilty of
commission of an offence, a finding to that effect shall be
recorded in the judgment of conviction, if any, but instead
of passing any sentence in relation to the juvenile, he would
be forwarded to the Juvenile Justice Board (in short “the
Board”) which shall pass orders in accordance with the
provisions of the Act as if it has been satisfied on inquiry
that a juvenile has committed the offence. A legal fiction
has, thus, been created in the said provision. A legal fiction
as is well known must be given its full effect although it has
its limitations. …
11. ***
12. Thus, by reason of legal fiction, a person, although not
a juvenile, has to be treated to be one by the Board for the
purpose of sentencing, which takes care of a situation that
the person although not a juvenile in terms of the 1986 Act
but still would be treated as such under the 2000 Act for 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 one of the issues and it was stated : (SCC p.
347, paras 11-12)
‘11. It is plain from the language of the Explanation of
Section 20 that in all pending cases, which would include
not only trials but even subsequent proceedings by way of
revision or appeal, etc., the determination of juvenility of a
juvenile has to be in terms of clause (l) of Section 2, even if
the juvenile ceases to be a juvenile on or before 1-4-2001,
when the 2000 Act came into force, and the provisions of
the Act would apply as if the said provision had been in
force for all purposes and for all material times when the
alleged offence was committed.
12. Clause (l) of Section 2 of the 2000 Act provides that
“juvenile in conflict with law” means a “juvenile” who is
alleged to have committed an offence and has not
completed eighteenth year of age as on the date of
commission of such offence. Section 20 also enables the
court to consider and determine the juvenility of a person
even after conviction by the regular court and also
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empowers the court, while maintaining the conviction, to
set aside the sentence imposed and forward the case to the
Juvenile Justice Board concerned for passing sentence in
accordance with the provisions of the 2000 Act.’
21. Similarly in Kalu v. State of Haryana [Kalu v. State of
Haryana, (2012) 8 SCC 34 : (2012) 3 SCC (Cri) 761] this
Court summed up as under : (SCC p. 41, para 21)
‘21. Section 20 makes a special provision in respect of
pending cases. It states that notwithstanding anything
contained in the Juvenile Act, all proceedings in respect of
a juvenile pending in any court in any area on the date on
which the Juvenile Act comes into force in that area shall
be continued in that court as if the Juvenile Act had not
been passed and if the court finds that the juvenile has
committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile
forward the juvenile to the Board which shall pass orders in
respect of that juvenile in accordance with the provisions of
the Juvenile Act as if it had been satisfied on inquiry under
the Juvenile Act that the juvenile has committed the offence.
The Explanation of Section 20 makes it clear that in all
pending cases, which would include not only trials but even
subsequent proceedings by way of revision or appeal, the
determination of juvenility of a juvenile would be in terms
of clause (l) of Section 2, even if the juvenile ceased to be a
juvenile on or before 1-4-2001, when the Juvenile Act came
into force, and the provisions of the Juvenile Act would
apply as if the said provision had been in force for all
purposes and for all material times when the alleged
offence was committed.’”
19. This position of law and principle in Mumtaz case
[Mumtaz v. State of U.P., (2016) 11 SCC 786 : (2017) 1
SCC (Cri) 610] was affirmed by this Court for the first time
in Hari Ram v. State of Rajasthan [Hari Ram v. State of
Rajasthan, (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987] in
the following words : (SCC p. 223, para 39)
“39. The Explanation which was added in 2006, makes it
very clear that in all pending cases, which would include
not only trials but even subsequent proceedings by way of
revision or appeal, the determination of juvenility of a
juvenile would be in terms of clause (l) of Section 2, even if
the juvenile ceased to be a juvenile on or before 1-4-2001,
when the Juvenile Justice Act, 2000, came into force, and
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
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the provisions of the Act would apply as if the said
provision had been in force for all purposes and for all
material times when the alleged offence was committed. In
fact, Section 20 enables the court to consider and
determine the juvenility of a person even after conviction
by the regular court and also empowers the court, while
maintaining the conviction, to set aside the sentence
imposed and forward the case to the Juvenile Justice
Board concerned for passing sentence in accordance with
the provisions of the Juvenile Justice Act, 2000.”
22. In the aforesaid case, the appellant Satyadeo @
Bhoorey was in judicial custody when the judgment was
rendered by the Hon’ble Supreme Court and after setting aside
the judgment and the sentence, direction was issued to the
learned trial court, in terms of Section 20, to forward the case to
the Juvenile Justice Board for passing sentence in accordance
with law. Recently, the Hon’ble Apex Court, while entertaining
Writ Petition (Criminal) No. 340 of 2025 (Hansraj v. State of
U.P.), having considered the provisions of the Juvenile Justice
Acts of 1960, 1986, 2000, and 2015 and after taking into
account the judgment of the Constitution Bench in case of
Pratap Singh v. State of Jharkhand, reported in (2005) 3 SCC
551, and several other judgments finally concluded and held as
under:
“12. No provision in the 1960 Act has been brought to our
notice that creates a legal impediment and, thus, limits our
authority to grant relief to the petitioner. Incidentally, the
developments in legislation in relation to juvenile justice
introduced by the Parliament from time to time can hardly
be overlooked. The proviso to sub-section (2) of Section 9
of the Juvenile Justice (Care and Protection of Children)
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
18/23
Act, 2015 is the new avatar of Section 7-A of the JJ Act,
2000. Section 7-A of the JJ Act, 2000, relevant for the
present case, permits raising of a plea of juvenility in any
court at any stage and even after final disposal of a special
leave petition under Article 136 of the Constitution. On the
plain terms of Section 7-A, the courts are under an
obligation to consider the plea of juvenility and to grant
appropriate relief if, in an enquiry, it is found that the
convict was a juvenile on the date of offence. The object
and purpose of the JJ Act, 2000 has been noticed in great
detail by the coordinate Bench in Vinod Katara (supra). We
share the view expressed therein. Incidentally, in Vinod
Katara (supra), the coordinate Bench, having regard to
the facts and circumstances, had directed the Sessions
Court, Agra, to examine the claim of the writ applicant
that he was a juvenile on the date of the offence. In the
present case, no such determination is required since the
petitioner stands on firmer footing. The petitioner’s date
of birth and his age on the date of the offence are not
disputed by the respondent and, therefore, no enquiry is
needed to ascertain his age.
13. Since there is no quarrel with the fact that the petitioner
was a child at the time of commission of the offence and the
petitioner has remained behind bars for more than three
years, his liberty has been curtailed not in accordance with
procedure established by law. The breach of the right
guaranteed under Article 21 is writ large and, hence, the
benefit of release from detention ought to be extended to
the petitioner.
14. Accordingly, there shall be an order in terms of prayer
(a) of the writ petition. The petitioner shall be immediately
released, if not wanted in any other case.”
(emphasis supplied)
23. Considering the mandate of Article 21 of the
Constitution of India, and in view of the admitted position that
the parties have not disputed the age of the appellants, who
were admittedly less than 18 years of age on the date their
statements under Section 313 Cr.P.C. on 19.05.2010 were
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
19/23
recorded, as well as, on the date of judgment, i.e., 14.06.2010,
and further considering that they remained in judicial custody
from 18.05.2004 to 18.10.2004 for about five months, I hold
that the appellants were juveniles on the date of commission of
the offence, which continued from 10.10.2000 to 12.12.2000.
24. Now reverting to the question of conviction
under Section 363A of the Indian Penal Code, this Court finds
that the victim was admittedly a minor at the time of the
occurrence. The essential ingredients of the offence, therefore,
require determination, particularly as to whether the act of
taking away the minor would constitute an offence punishable
under Section 363A of the Indian Penal Code?
25. In the case of S. Varadarajan v. State of
Madras, reported in AIR 1965 SC 942, the Hon’ble Supreme
Court dealing with the provision of Section 363 IPC held that
there is a clear distinction between “taking” a minor and merely
allowing a minor to accompany a person, as the two
expressions are not synonymous. It has been held in the said
case that, where the minor, having sufficient understanding and
capacity to know the consequences of her conduct, voluntarily
leaves the protection of her guardian and joins the accused, the
accused cannot be said to have “taken” her away from the
lawful guardianship. The Court further held that in such cases,
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
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something more is required to be established, namely, some
form of inducement, enticement, or active participation on the
part of the accused in the formation of the intention of the
minor to leave the guardian’s custody. Mere facilitation of the
fulfillment of the minor’s own intention would not amount to
“taking” within the meaning of law.
26. The above proposition of law was reiterated by
the Apex Court in case of Anversinh v. State of Gujarat,
reported in (2021) 3 SCC 12.
27. Admitting to the facts of the case and the
evidences available on record, it is admitted that the occurrence
had taken place about eight years prior to the passing of the
judgment. The mother of the victim was fully aware of the
circumstances under which the victim had left the village and
she herself admitted that after having conversation with the
appellants, she had left for Calcutta on the same day. She was
subsequently informed by her own sister that the victim had
gone to Delhi along with the appellants. The victim ultimately
returned on his own after about three years. It has also come in
evidence that the Hotel Manager had paid a sum of
Rs.1,00,000/- to the appellants. Moreover, the Investigating
Officer has not been examined in the present case to establish
the veracity of the allegation of sending the victim by these
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
21/23
appellants. In such facts and circumstances, I find that
forwarding the case to the Juvenile Justice Board in accordance
with the provision of Section 20 for determination of the age of
the appellants will serve no purpose.
28. Upon appreciation of the evidences available
on record and the settled principles of law governing the
offence under Section 363A of the Indian Penal Code, this
Court finds that the essential ingredients constituting the
offence have not been established by the prosecution beyond
reasonable doubt. To attract the offence under Section 363A
IPC, the prosecution is required to prove not only the act of
kidnapping or obtaining custody of a minor from lawful
guardianship, but also that such kidnapping or custody was for
the specific purpose of employing or using the minor for
begging. The expression “kidnapping” contemplates taking or
enticing a minor away from lawful guardianship without
consent, whereas the offence under Section 363A further
requires proof of intention that the minor be employed or used
for begging. In the present case, there is no evidence on record
to show that the victim was ever employed, used, or intended to
be used for the purpose of begging, nor is there any allegation
that the victim was forced to solicit alms or was maimed for
such purpose. The prosecution has also failed to prove any act
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
22/23
of inducement or enticement on the part of the appellants
sufficient to constitute kidnapping within the meaning of law.
On the contrary, the evidence on record indicates that the victim
had accompanied the appellants voluntarily and ultimately
returned on her own after about three years. In absence of any
cogent evidence establishing the necessary ingredients of
kidnapping coupled with the object of begging, the conviction
of the appellants under Section 363A IPC cannot be sustained
in the eyes of law.
29. In the facts and circumstances of the case, and
for the reasons recorded, hereinabove, so far as, the conviction
of the appellants under Sections 363A, 120B and 201 of the
Indian Penal Code is concerned, I do not find that the same can
sustain, as such, the impugned judgment of conviction and
order of sentence dated 14.06.2010 passed by the learned
Additional District and Sessions Judge, F.T.C.-IV, Jamui in S.T.
No. 154 of 2007 is hereby set aside and quashed. Consequently,
the above-named appellants/accused are acquitted from all the
charges levelled against them. Since the appellants are on bail,
they are discharged from the liability of their bail bonds. The
fine deposited by the appellants, if any, shall be refunded to
them.
30. Accordingly, the present appeal stands allowed.
Patna High Court CR. APP (SJ) No.645 of 2010 dt.15-05-2026
23/23
31. Office is directed to send back the lower court
records along with a copy of this judgment to the learned court
below forthwith.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 18.05.2026
Transmission Date 18.05.2026
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