DHARAMBIRversusSTATE (NCT OF DELHI) AND ANR.

                      [2010) 5 S.C.R. 137


                        DHARAMBIR                                   A
                             v.
            STATE (NCT OF DELHI) AND ANR.
             (Criminal Appeal No.860 of 2010)
                       APRIL 23, 2010
                                                                    B
           [D.K. JAIN AND J.M. PANCHAL,             .]

      Juvenile Justice (Care and Protection of Children) Act,
2000 - <\S. 2(k), 2(1), 7A, 20 and 49 - Relevant date for
determ111mg the applicability of the Act of 2000 - Murder and       C
attempt to murder - Incident occurred in 1991 - Accused-
appel/ant aged 16 years and 9 months at that time and hence
not a juvenile within meaning of the Act of 1986 - Conviction
and sentence of appellant by regular court - Meanwhile, Act
of 2000 came into force w.e.f 1st April, 2001 - Claim of            D
appellant that he was juvenile within meaning of the Act of
2000 since he had not completed 18 years of age at the time
of commission of the said offences - Tenability of - Held:
Tenable - All persons below the age of 18 years on the date
of commission of offence, even prior to 1st April, 2001, would      E
be treated as juveniles even if the claim of juvenility is raised
                                                                    I
after they have attained the age of 18 years on or before the
date of the commencement of the Act of 2000, and were
undergoing sentences upon being convicted - However, since
the maximum period of detention under the Act of 2000 was           F
for three years and appellant had already undergone an actual
period of sentence of 2 years, 4 months and 4 days and is
now c=iged about thirty five years, his case not forwarded to the
Juvenile Justice Board concerned for passing sentence in
accordance with the provisions of the Act of 2000 - Conviction      G
of appellant sustained but quantum of sentence reduced to
the period already uridergone - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - rr. 12 and 98 - Juvenile
Justice Act, 1986.
                              137
                                                                    H
    138      SUPREME COURT REPORTS                [2010] 5 S.C.R.


A      Appellant allegedly committed tt~e murder of a close
  relative and attempted to murder his brother. On the date
  of commission of the said off~nces i.e. on 25th August,
  1991, appellant was aged 16 years, 9 months and 8 days.
  He was thus not a juvenile Wi.ithin the meaning of the
B Juvenib Justice Act, 1986 when the offences were
  commit~ed. Appellant was convicted by the regular trial
  court u/s. 302 and 307 r/w s. 34 of IPC. The conviction
  was upheld by the High Court.

      Before this Court, the appellant contended at thE1
C very outset that since at the time of commission of tile
  said offences, he had not completed 18 years of age, he
  was a juvenile within the meaning of s.2(k) of the Juvenile
  Justice (Care and Protection of Children) Act, 2000.

D         Part~y allowing the appeal, the Court

          H~(D: 1.1. The issue with regard to the date, relevant
  for determining the applicability of either of the two Acts,
  i.e. Juvenile Justice Act, 1986 and Juvenile Justice (Care
E and Protection of Children) Act, 2000 insofar as the age
  of the accused, who claims to be a juvenile/child, is
  concerned, is no longer res integra. [Para 7] [144-D]

          1.2. In a Constitution Bench judgment of this Court,
   · it has been held that the relevant date for determining the
F age of the accused, who claims to ~e a juvenile/child,
     would be the date on whicJ::! the offence has been
     committed and not the date when he is produced before
     the authority or in the court. In the same judgment, the
    Bench also dealt with the question as to whether the Act
G ··of 2000 will be applicable in a case where proceedings
    were initiated under the 1986 Act and were pending when
     the .Ae<tof 2000 was enacted with effect from 1st April,
     2001. Taking into consideration the provisions of
     Sections 3 and 20 along with the definition of "juvenile"
H in Section 2(k) ,of the Act of 2000, as contrasted with the
  DHARAMBIR v. STATE (NCT OF DELHI) AND ANR.             139


definition of a male juvenile in Section 2(h) of the 1986       A
Act, by majority, it was held that the Act of 2000 would
be applicable in a pending proceeding in any Court/
Authority initiated under the 1986 Act and is pending
when the Act of 2000 came into force and the person
concerned had not completed 18 years of age as on 1st           s
April, 2001. In other words, it was held that a male
offender, against whom proceedings had been initiated
under the 1986 Act in any Court/Authority and had not
completed the age of 18 years as on 1st April, 2001,
would be governed by the provisions of the Act of 2000.         c
The said decision led to substitution of Section 2(1); the
insertion of Section 7A and Proviso and E.xplanation to
Section 20 of the Act of 2000 by Act No.33 of 2006 as also
introduction of the Juvenile Justice (Care and Protection
of Children) Rules, 2007 containing Rule12, which lays          D
down the procedure to be followed in determination of
age of a child or a juvenile. [Paras 7, 8, 9) [144-F-G; 145-
A-D]
    Pratap Singh v. State of Jharkhand & Anr. (2005) 3 SCC
551, followed.                                                  E
     Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202
 and Amit Das v. State of Bihar (2000) 5 SCC 488, referred
.to.

       2.1. It is plain from the language of the Explanation    F
  to Section 20 of the Juvenile Justice (Care and Protection
  of Children) Act, 2000 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 ajuvenile has to be in terms   G
. ~f Clause (I) of Section 2, even if the juvenile ceases to
  be a juvenile on or before 1st April, 2001, when the Act
  of 2000 came into force, and the provisions of the Act
  would apply as if the said provision had been in force for
  all purposes and for all material times when the alleged      H
    140    SUPREME COURT REPORTS              [2010] 5 S.C.R.

A offence was committed. Clause (I) of Section 2 of the Act
  of 2000 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
B enal,les the Court to consider and determine the
  juve,1ility 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
C concerned for passing sentence in accordance with the
  provisions of the Act of 2000. [Para 11] [146-D-G]

          2.2. The 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
D   even after disposal of the case and such claim is required
    to be determined in terms of the provisions .contained in
    the Act of 2000 and the rules framed thereunder, even if -
    the juvenile has ceased to be so on or before the date of
    the commencement of the Act of 2000. The effect of the
E   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 Act of 2000 as
    if the provisions of Section 2(k) of the said .Act, which
    defines "juvenile" or "child" to mean a person who has
F   not completed eighteenth year. of age; had always been
    in existence even during the operation of the 1986 Act. It
    is, thus, manifest from a conjoint reading of Sections 2(k),
    2(/), 7A, 20 and 49 of the Act of 2000, read with Rules 12
    and 98 of the Juvenile Justice (Care and Protection of
G   Children) Rules, 2007 that all persons who were below
    the age of eighteen years on the date of commission of
    the offence even prior to 1st April, 2001 would be treated
    as juveniles even if the claim of juvenility is raised after
    they have attained the age of eighteen years on or before
H   the date of the commencement of the Act of 2000 and
 DHARAMBIR v. STATE (NCT OF DELHI) AND ANR.               141


were undergoing sentences upon being convicted. [Para            A
12) [147-E-H; 148-A-B]

    Hari Ram v. State af Rajasthan & Another (2009) 13 SCC
211, relied on.

    3. In the present case, since the age of appellant as        8
on the date of commission of offences, i.e., 25th August,
1991, was 16 years, 9 months and 8 days, he has to be
held to be a juvenile as on the date of the commission of
the offences for which he has been convicted and is to
be governed by the provisions of the Act of 2000. [Para          C
14] [148-0-E]

     4. As regards the sentence, section 15 of the Act of
2000 provides for various orders which the Juvenile
Justice Board may pass against a juvenile when it is             D
satisfied that the juvenile has committed an offence,
which includes an order directing the juvenile to be sent
to a special home for a period of three years. Section 16
of the Act of 2000 stipulates that where a juvenile who has
attained the age of sixteen years has ce>mmitted an              E
offence and the Board is satisfied that the offence
committed is so serious in nature that it would not be in
his interest or in the interest of other juvenile in a special
home to send him to such special home and that none
of the other measures provided under the Act is suitable
                                                                 F
or sufficient, the Board may order the juvenile in conflict
with law to be kept in such place of safety and in such
manner as it thinks fit and shall report the case for the
order of the State Government. Proviso to sub-section (2)
of Section 16 of the Act of 2000 provides that the period
of detention so ordered shall not exceed in any case the         G
maximum period provided under Section 15 of the said
Act, i.e., for three years. In the instant case, the appellant
underwent an actual period of sentence of 2 years, 4
months and 4 days and is now aged about thirty five
years. Keeping in view the age of the appellant, it may not      H
    142     ·SUPREME COURT REPORTS               [2010] 5 S.C.R. ·


A J>. be• conducive to the environment in the special .home and
      to the interest of other juveniles housed in the special'3rlt
   . home, to refer him to the Board for passing orders for
      sending the appellant to special home or for keeping him
      at some other place of safety for the remaining period of
B less than eight months, the maximum period for which
      he can now be kept in either of the two places.
      Accordingly, while sustaining the conviction of the
      appellant for the afore-stated offences, the sentences
      awarded to him are quashed and his release is directed
c     forthwith, if not required in any other case. [Paras 15, 16]
      [148-G-H; 149-A-F]
                 ...
                           Case Law Reference:
          (1982) 2 sec 202        referred to           Para 7
D         (2000) 5 sec 488        referred to           Para 7
          (2005) 3 sec 551        followed              Para 7
       _(2009) 13 sec 211         relied on             Para 13
E       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 860 of 2010.

        From the Judgment & Order dated 6.11.2009 of the High
    Court of Delhi at New Delhi in Crl. Appeal No. 140 of 1994.
F         K. Parasaran, Pradeep R. Tiwary, Ramesh K. Sharma,
    Atithi Dipankar for the Appellant.

        H.P. Raval, ASG, P.K. Dey, Anil Katiyar, Rakesh K.
    Sharma for the Respondents.
G
          _The Judgment of.the Court was delivered by

          Leave granted.

      2. This appeal is directed against the final judgment and
H order dated 6th November, 2009, delivered by the High Court
 DHARAMBIR v. STATE (NCT OF DELHI) AND ANR.                   143


of Delhi at New Delhi, in Criminal Appeal No: 140 of 1994. Sy , : A .
the impugned judgment, while acquitting one of the co-convicts,
the High Court has upheld the conviction of the appellant for
offences punishable under Sections 302 and 307 read with
Section 34 of the Indian Penal Code, 1860 (for short "the IPC"),
for committing murder of one of their close relative and for B
attempting to murder his brother. The appellant has been
sentenced to imprisonment for life under Sections 302/34 IPC
and to pay a fine of Rs.500/-. For offence under Section 307/
34 IPC, he has been sentenced 'to undergo rigorous
imprisonment for a term of seven years and to pay a fine of c
Rs.500/-, with default stipulation.

       3. When the matter came up for motion hearing, Mr. K.
 Parasaran, learned senior counsel, appearing for the appellant,
 submitted at the very outset that since at the time of commission
 ofJ~e said offences, the appellant had not completed eighteen       D
 yea'ts of age, he was a juvenile within the meaning of Section.
 2(k) of the Juvenile Justice (Care and Protection of Children)
 Act, 2000 (for short "the Act of 2000"), an inquiry in terms of
 Section 7 A of the Act of 2000 has to be made so as to
.determine the age of the appellant. In support of the submission,   E
 learned counsel relied on the appellant's school leaving
 certificate dated 2nd December, 2009.

     4. In view of the said claim, while issuing notice to the
State, a Registrar of this Court was directed to make an inquiry     F
and determine the age of the appellant on the date of
commission of the offences. Pursuant to the said order, the
Registrar (Judicial) of this Court has conducted a detailed
inquiry by recording the sratements of the Principal and other
office bearers of three schools where the appellant had studied      G
and has reported that as on the date when the offences were
committed, i.e., 25th August, 1991, the appellant was of the age
of 16 years, 9 months and 8 days. The matter has now been
place : before us along with the report.

                                                                     H
    144     · SUPREME COURT REPORTS               [2010] 5 S.C.R.


A       5. We have heard learned senior counsel appearing on
    behalf of the appellant and Mr. H.P. Raval, learned Additional"
    Solidtor General on behalf of the State ..

       6. The question for determination is whether or not the
B appellant, who was ad.mittedly not a juvenile within the meaning
  ofthe Juvenile Justice Act, 1986 (for short "the 1986 Act") when
  the offences were committed but had not completed 18 years
  of age on that date, will be governed by the Act of 2000 and
  be declared as a juvenile in relation to the offences alleged to
c have \:>een committed by him?
        7. Before adverting to the question, we may note that the
  issue with regard to the .date, relevant for determining the
  applicability of either of the two Acts, insofar as the age of the
  accused, who claims to be a juvenile/child, is coneerned, is no
D longer res integra. On account of divergence of views on the
  point .in Umesh Chandra Vs. State of Rajasthan1 and Amit Das
  Vs. State of Bihar, 2 the matter was referred to the Constitution
  Bench in Pratap Singh Vs. State of Jharkhand & Anr3.
  Affirming_ the view taken by a Bench of three Judges in Umesh
E Chandra's case (supra), the Constitution Bench held that the
  relevant date for determining the age of the ac-cused, who
  claims to be a juvenile/child, would be the date on which the
  offence has been committed and not the date when he is
  produced before the authority or in the court.
F     8. In the same judgment, the Bench also dealt with the
  question as to whether the Act of 2000 will be applicable in a
  case where proceedings were initiated under the 1986 Act and
  were pending when the Act of 2000 was enacted with effect
  from 1st April, 2001. Taking into consideration the provisions
G of Sections 3 and 20 along with the definition of "juvenile" in


    1.   (1982) 2 sec 202.
    2.   (2000) 5 sec 488.
H 3. (2005) 3 sec 551
  DHARAMBIR v. STATE (NCT OF DELHI) AND ANR.                     145
 1 .~   bo •   I



SeC1ion 2(k) of the Act of 2000, as contrasted with the definition     A
of a male juvenile in Section 2(h) of the 1986 Act, by majority,
it was held that the Act of 2000 would b~ applicabl~, in a
pending proceeding in any Court/Authority initiated under the
1986 Act and is pending when the Act of 2000 came into force
and the person concerned had not completed 18 years of age             B
as on 1st April, 2001. In other words, it was held that a male
offender, against whom proceedings had been initiated under
the 1986 Act in any Court/Authority and had not completed the
age of 18 years as on 1st April, 2001, would be governed by
the provisions of the Act of 2000.                                     c
    9. The decision in Pratap Singh's case (supra) led to
substitution of Section '2(1); the insertion of Section 7A and
Proviso and Explanation to Section 20 of the Act of 2000 by
Act No.33 of 2006 as also introduction of the Juvenile justice
(Care and Protection of Children) Rules, 2007 containing               D
Rule12, which lays down the procedure to be followed in
determination of age of a child or a juvenile.

    10. Section 20 of the Act of 2000, the pivotal provision,
as amended, reads as follows: .                                        E

         "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
                                                                        F
          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 ofpassing 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 G
         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       H
    146       SUPREME COURT REPORTS                   [2010) 5 S.C.R.


A         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
B
          determination of juvenility of such a juvenile shall be in
          terms of clause (I) of section 2, even if the juvenile ceases
          to be so on or before the date of commencement of this
          Act and the provisions of this Act shall apply as if the said
          provisions had been in force, for all purposes and at all
c         material times when the.alleged offence was committed."

         11. It is plain from the language of the Explanation to
    Section 20 that in all pending cases, which would include not
    only trials but even subsequent proceedings by way of revision
D   or appeal, etc., the determination of juvenility of a juvenile has
    to be in terms of Clause (!) of Section 2, even if the juvenile
    ceases to be a juvenile on or before 1st April, 2001, when the
    Act of 2000 came into force, and the provisions of the Act would
    apply as if the said provision had been in force for all purposes
E   and for all material times when 1the alleged offence was
    committed. Clause (I) of Section 2 of the Act of 2000 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
F   offence. Section 20 also enables the Court to consider and
    deterl"fline the juvenility of a person even after conviction by the
    regular Court and also erl)powers the Court, while maintaining
    the conviction, to set aside the sentence imposed and forward
    the case to the Juvenile Justice Board concerned for passing
G   sentence in accordance with the provisions of the Act of 2000.

         12. At this juncture, it will be profitable to take note of
    Section 7A, inserted in the Act of 2000 with effect from 22nd
    August, 2006. It reads as follows:

H         "7A. Procedure to be followed when claim of juvenility is
 DHARAMBIR v. STATE {NCT OF DELHI) AND ANR.                147

    raised before any court.- (1) Whenever a claim of A
    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, B
    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 C
    ~e 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
                                                                   D
    (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."                                  E

     Proviso to sub-section (1) of Section 7A 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 Act of 2000 and the rules framed F
thereunder, even if the juvenile has ceased to be so on or before
the date of the commencement of the Act of 2000. 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 Act of 2000 as if the G
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. It is, thus, manifest from
a conjoint reading of Sections 2{k), 2(1), 7A, 20 and 49 of the H
    148       SUPREME COURT REPORTS                 [2010) 5 S.C.R.


A   Act of 2000, read with Rules 12 and 98 of the Juvenile Justice
    (Care and Protection of Children) Rules, 2007 that all persons
    who were below the age of eighteen years on, :the date of
    commission of the offence even .prior to 1st April, 2001 would
    be treated as juveniles even if the claim of juvenility is raised
B   after they have attained the age of eighteen years on or before
    the date of the commencement of the Act of 2000 and were
    undergoing sentences l:ipon·being convicted.

         13. In the view we have taken, we are fortified by the dictum
    of this Court in a recent decision in Hari Ram Vs. State of
C   Rajasthan & Another.

         14. In the present case, as per the report of the Registrar
    submitted in terrns of Section 7A of the Act of 2000, the age
    of appellant as on the date of commission of offences, i.e., 25th
D August, 1991, was 16 years, 9 months and·8· days. The
    correctness of ihe estimate of age by the Registrar is not
    questioned by the State. The parties have, therefore, accepted
  · the correctness of the age determined by the learned Registrar.
 · In our considered opinion, in the light of the afore-stated legal
E position, the appellant has to be held to be a juvenile as on the
    date of the Commission of the offences for which he has been
    convicted and is to be governed by the provisions of the Act of
    2000 .

         . 15. Having held so, the n~xt question for consideration is
F   as to what order on sentence is to be passed against the
    appellant forthe offences committed by him under Sections 302
    and 307 read with Section 34 IPC, correctness whereof has
    not been put in issue before us. Section 15 of the Act of 2000
    provides for various orders which the Juvenile Justice· Board
G   (for short "the Board") may pass against a juvenile when it is
    satisfied that the juvenile has committed an offence, which
    includes an order directing the juvenile to be sent to a special
    home for a period of three years. Section 16 of the Act of 2000

H   4.   (2009) 13· sec 211.
 DHARAMBIR v. STATE (NCT OF DELHI) AND ANR.                    149


S11pulates that where a juvenile who has attained the age of           A
sixteen years has committed an offence and the Board is
satisfied that the offence committed is so serious in nature that
it would not be in his interest or in the interest of other juvenile
in a special home to send him to such special home and that
none of the other measures provided under the Act is suitable          B·
or sufficient, the Board may order the juvenile in conflict with
law to be kept in such place of safety and in such manner as it
thinks fit and shall report the case for the order of the State
Government. Proviso to sub-section (2) of Section 16 of the Act
of 2000 provides that the period of detention so ordered shall         c
not exceed in any case the maximum period provided under
Section 15 of the said Act, i.e., for three years. In the instant
case, as per the information furnished to us, the appellant has
undergone an actual period of sentence of 2 years, 4 months
and 4 days and is now aged about thirty five years. We feel            D
that, keeping in view the age of the appellant, it may not be
conducive to the environment in the special home and to the
interest mOther juveniles housed in the special home, to refer
him to the Board for passing orders for sending the appellant
to special home or for keeping him at some other place of
safety for the remaining period of less than-eight months, the         E
maximum period for which he can now be kept in either of the
two places.

      16. Accordingly, while sustaining the conviction of the
 appellant for the afore-stated offences, we quash the sentences       F
 awarded to him and direct his release forthwith, if not required
-in any other case. The appeal succeeds partly to the extent
 indicated above.

B.B.B.                                    Appeal partly allowed.