KARAN @ FATIYAversusTHE STATE OF MADHYA PRADESH

                         [2023] 2 S.C.R. 587                              587


                        KARAN @ FATIYA                                    A
                                  v.
               THE STATE OF MADHYA PRADESH
               (Criminal Appeal Nos. 572-573 of 2019)
                          MARCH 03, 2023                                  B
 [B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
       Juvenile Justice (Care and Protection) Act, 2015 – Claim of
Juvenility – Appellant convicted for various offences under IPC
and POCSO Act was awarded death sentence – Death sentence
                                                                          C
affirmed by High Court – During the pendency of the present
appeals, appellant claimed juvenility – Trial Court was directed to
submit report after due inquiry – Report submitted, appellant’s date
of birth was found to be conclusively proved as 25.07.2002 – Date
of incident being 15.12.2017, the appellant was aged 15 years 04
months and 20 days on the date of the incident – Held: No reason          D
to doubt the correctness of the conclusion arrived at by the Trial
Court regarding the date of birth of the appellant – Appellant held
to be aged 15 years, 4 months and 20 days on the date of the incident
– Conviction of the appellant upheld, sentence set aside – Appellant
being less than 16 years on the date of commission of the offence,
                                                                          E
the maximum punishment that could be awarded is upto 3 years –
However, appellant has already undergone incarceration of more
than 5 years – Incarceration beyond 3 years would be illegal –
Appellant to be released from judicial custody – Impugned judgement
passed by High Court modified – Penal Code, 1860 – ss. 363,
376(2)(i), 302, 201 – POCSO Act – s.5(m)/6.                               F
       Juvenile Justice (Care and Protection) Act, 2015 – s.94 –
Ossification test – Plea of the State that the appellant be subjected
to an ossification test for determining his correct age as the
documents filed during the inquiry before the Trial Court were not
covered u/s.94 – Held: Rejected – First preference for determination      G
of age is the birth certificate issued by the school or a matriculation
certificate – It is in the absence of the first category of documents
that the birth certificate from the municipal corporation is to be
considered – An ossification test comes into play when the documents
are not available under the first and second columns – In the instant
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                                 587
588            SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A     case, appellant’s birth certificate from the school (a government
      primary school) was available – It has been duly proved in the
      inquiry before the Trial Court, no reason to doubt its correctness –
      Further, an ossification test only gives a broad assessment of the
      age – It does not give an exact age – There is an element of margin
      of plus or minus 1 to 2 years – Thus, in the present case, even if
B
      ossification test is permitted, it will have no bearing on the
      assessment made by the Trial Court after the inquiry.
            Juvenile Justice (Care and Protection) Act, 2015 – s.9 – Plea
      of Juvenility – Held: Can be raised before any Court and at any
      stage even after the case has been finally decided – The claim so
C     made would be determined even if such person has seized to be a
      child whether on or before the commencement of 2015 Act.
            Juvenile Justice (Care and Protection) Act, 2015 – s.18 –
      Held: Juvenile Justice Board having found a child to be in conflict
      with law who may have committed a petty or serious offence and
D     where heinous offence is committed, the child should be below 16
      years, 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 a period of three years.
             Juvenile Justice (Care and Protection) Act, 2015 – s.9(3) –
E     Accused held to be a juvenile after conviction at the stage of appeal,
      status of the trial, conviction and sentence recorded – Held: A trial
      conducted and conviction recorded by the Sessions Court would
      not be held to be vitiated in law even though subsequently the person
      tried has been held to be a child – Intention of the legislature was
F     to give benefit to a person who is declared to be a child on the date
      of the offence only with respect to its sentence part – It is only the
      question of sentence for which the provisions of the 2015 Act would
      be attracted – Any sentence in excess of what is permissible under
      the 2015 Act will have to be accordingly amended as per the
      provisions of the 2015 Act – Juvenile Justice (Care and Protection
G     of Children) Act, 2000 – s.7A.
            Partly allowing the appeals, the Court
            HELD: 1.1 During the inquiry before the Trial Court, the
      State did not take any objection whatsoever with regard to the
      documents filed on behalf of the appellant and the evidence led
H
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                          589


on behalf of the appellant so much so that the State did not even        A
cross- examine the witnesses who were examined in the inquiry.
Permitting the State to raise such an objection now once the
conclusive finding has been recorded by the Trial Court after an
elaborate inquiry would be unjust and not warranted. The State
had full opportunity to raise such a plea before the Trial Court in
                                                                         B
the inquiry and then it was for the Trial Court to take a call as to
whether any ossification test was necessary or not. Ossification
test will only give a broad assessment of the age. It cannot give
an exact age. There is also an element of margin of plus or minus
1 to 2 years. Even if the said test is permitted, it will have no
bearing on the assessment made by the Trial Court after the              C
inquiry. The first preference for determination of age is the birth
certificate issued by the school or a matriculation certificate.
Although it has been submitted that no birth certificate of the
school was submitted, learned counsel for the appellant has
pointed out from the documents attached to the report that in
                                                                         D
addition to the mark sheets and the school leaving certificate,
the birth certificate was also filed which is Annexure I-3 to the
report. It is in the absence of the first category of documents
being not available that the birth certificate from the municipal
corporation is to be considered. If under the first and second
columns, documents are not available, then reference to medical          E
board and holding of an ossification test comes into play. In the
present case, there being birth certificate from the school available
and that too a government primary school, there is no reason to
doubt its correctness and all the more when it has been duly
proved in the inquiry before the Trial Court. Thus, the objections
                                                                         F
raised 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 a right to a person alleged to
have committed an offence to claim that he is a child on the date
of commission of offence and if such a claim is raised, the Court
concerned shall make an inquiry, take such evidence as may be            G
necessary other than the affidavit to determine the age of such
person. The proviso to sub-section (2) further makes it clear
that such a claim can be raised before any Court and the same
could be recognised at any stage even after the case has been
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590            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     finally decided. The claim so made would be determined in
      accordance with the provisions of the 2015 Act and the rules
      made thereunder even if such person has seized to be a child
      whether on or before the commencement of 2015 Act. The law
      provides full coverage to a person who is established to be a
      child on the date of the offence to avail the benefits admissible to
B
      a child under the 2015 Act even if the case has been finally decided
      and also such person has attained majority. Further, sub-section
      (3) provides that if it is found in the inquiry that such person was
      a child on the date of commission of such offence then the Court
      is required to forward the child to the Juvenile Justice Board for
C     passing appropriate orders and further if any sentence has been
      imposed by the Court, the same shall be deemed to have no effect.
      In view of the above statutory provisions and in view of the
      findings recorded, the appellant having been held to be a child
      on the date of commission of the offence, the sentence imposed
      has to be made ineffective. [Para 14][598-H; 599-A-D]
D
             1.3 On a perusal of the aforesaid Section 18 of the 2015
      Act, it is to be noticed that the JJB having found a child to be in
      conflict with law who may have committed a petty or serious
      offence and where heinous offence is committed, the child should
      be below 16 years, can pass various orders under clauses (a) to
E     (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 a period of three years and the JJB has to take
      full care of ensuring the best facilities that could be provided to
      the child for providing reformative services including education,
F     skill development, counselling and psychiatric support. In the
      present case, the appellant is held to be less than 16 years, and
      therefore, the maximum punishment that could be awarded is
      upto 3 years. The appellant has already undergone more than 5
      years. His incarceration beyond 3 years would be illegal, and
      therefore, he would be liable to be released forthwith on this
G     count also. [Paras 16 and 17][601-C-E]
            1.4 According to sub-section (3) of section 9 of the 2015
      Act, the Court which finds that the person who committed the
      offence was a child on the date of commission of such offence

H
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                            591


would forward the child to the JJB for passing appropriate orders          A
and sentence, if any, passed by the Court shall be deemed to
have no effect. This does not specifically or even impliedly provide
that the conviction recorded by any Court with respect to a person
who has subsequently after the disposal of the case found to be
juvenile or a child, would also lose its effect rather it is only the
                                                                           B
sentence if any passed by the Court would be deemed to have no
effect. There is another reason why a trial conducted and
conviction recorded by the Sessions Court would not be held to
be vitiated in law even though subsequently the person tried has
been held to be a child. The intention of the legislature was to
give benefit to a person who is declared to be a child on the date         C
of the offence only with respect to its sentence part. If the
conviction was also to be made ineffective then either the
jurisdiction of regular Sessions Court would have been completely
excluded not only under section 9 of the 2015 Act but also under
section 25 of the 2015 Act, provision would have been made that
on a finding being recorded that the person being tried is a child,        D
a pending trial should also be relegated to the JJB and also that
such trial would be held to be null and void. Instead, under section
25 of the 2015 Act, it is clearly provided that any proceeding
pending before any Board or Court on the date of commencement
of the 2015 Act shall be continued in that Board or Court as if            E
this Act had not been enacted. Merits of the conviction could be
tested and the conviction which was recorded cannot be held to
be vitiated in law merely because the inquiry was not conducted
by JJB. It is only the question of sentence for which the provisions
of the 2015 Act would be attracted and any sentence in excess of
what is permissible under the 2015 Act will have to be accordingly         F
amended as per the provisions of the 2015 Act. Otherwise, the
accused who has committed a heinous offence and who did not
claim juvenility before the Trial Court would be allowed to go
scot-free. This is also not the object and intention provided in
the 2015 Act. The object under the 2015 Act dealing with the               G
rights and liberties of the juvenile is only to ensure that if he or
she could be brought into the main stream by awarding lesser
sentence and also directing for other facilities for welfare of the
juvenile in conflict with law during his stay in any of the institutions
defined under the 2015 Act. [Paras 30-33][608-F-G; 609-A-D, F-
H; 610-A]                                                                  H
592            SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A            1.5 The conviction of the appellant is upheld; however, the
      sentence is set aside. Further as the appellant at present would
      be more than 20 years old, there would be no requirement of
      sending him to the JJB or any other child care facility or
      institution. Appellant is in judicial custody. He shall be released
      forthwith. The impugned judgement stands modified to the
B
      aforesaid extent. [Para 35][610-C]
            Jitendra Singh alias Babboo Singh and another vs. State
            of Uttar Pradesh (2013) 11 SCC 193 : [2013] 13 SCR
            764; Mahesh vs. State of Rajasthan and others (2018)
            SCC Online SC 3655; Satya Deo alias Bhoorey vs. State
C           of 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. State
            of Punjab and Others (2019) 6 SCC 132 – referred to.
                             Case Law Reference
D
      [2019] 4 SCR 18                   referred to               Para 26
      [2013] 13 SCR 764                 affirmed                  Para 34
      (2020) 10 SCC 555                 affirmed                  Para 25
      (2019) 6 SCC 132                  referred to               Para 28
E
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 572-573 of 2019.
            From the Judgment and Order dated 15.11.2018 of the High Court
      of 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. Sneha
      Sonam, Rajat Mittal, Advs. for the Appellant.
           Mrs. Ankita Choudhary, D.A.G., Sunny Choudhary, Yashraj Singh
      Bundela, Abhinav Shrivastava, Karan Bishnoi, Advs. for the Respondent.
G           The Judgment of the Court was delivered by
            VIKRAM NATH, J.
            1. The present appeals assail the correctness of the judgment and
      order dated 15.11.2018 whereby a Division Bench of the High Court of
      Madhya Pradesh, Bench at Indore, affirmed the death sentence awarded
H     by the Trial Court and at the same time dismissed the appeal preferred
     KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                593
                    [VIKRAM NATH, J.]

by the appellant against his conviction and sentence awarded by the               A
Trial Court.
      2. The present appellant was charged for offences under sections
363, 376(2)(i) of the Indian Penal Code1, sections 5(m)/6 of the POCSO
Act and sections 302 and 201 IPC. The Trial Court vide judgment dated
17.05.2018 convicted the appellant for all the offences and awarded the           B
following sentences as against each of the offences:




                                                                                  C




                                                                                  D
      3. The appeal preferred by the appellant was dismissed by the
High Court and the death reference forwarded by the Trial Court was
affirmed, as already noted above.
       4. During the pendency of these appeals, the appellant moved an
application being I.A.No.43271 of 2019 claiming juvenility and                    E
consequently the benefits available under the provisions of the Juvenile
Justice (Care and Protection) Act, 20152. This application was apparently
filed under Section 9(2) of the 2015 Act. This Court, vide order dated
28.09.2022 required the Trial Court to submit its report after due inquiry
as to whether the appellant was a juvenile on the date when the offence
                                                                                  F
in question was committed. The order dated 28.09.2022 is reproduced
below:
          “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,
                                                                                  G
          we direct as under:
          a. The copies of the record be sent to the concerned Trial Court
          as early as possible in physical form as well as in digitized form.
1
    In short, “IPC”
2
    The 2015 Act                                                                  H
594             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A           b. The accused shall be produced before the concerned Trial Court
            within a week’s time.
            c. The Trial Court shall endeavour to consider whether the
            appellant was juvenile as on the date when the offence in question
            was committed.
B           d. For arriving at this conclusion, the Trial Court shall be entitled
            to call for and consider all the relevant documents as well as have
            the facility of medical check-up of the appellant in a manner known
            to law.
            e. The Report in that behalf shall be submitted in the Registry of
C           this Court within four weeks.
            List this matter for further consideration along with the Report in
            the week commencing 31st October 2022.”
             5. Pursuant to the said order, a report has been received from the
D     Court of First Additional Sessions Judge, Manawar, District Dhar, Madhya
      Pradesh dated 27.10.2022 running into 20 pages along with all the material
      evidence both documentary and oral adduced before it on the basis of
      which the report has been submitted. As per the said report, the appellant’s
      date of birth was found to be conclusively proved as 25.07.2002. The
      date of the incident being 15.12.2017, the appellant was 15 years 04
E     months and 20 days of age on the date of the incident. The operative
      part 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 account
            25.07.2002 as his date of birth, the applicant was 15 years 04
F           months 20 days of age as on 15.12.2017, and being below 16
            years 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 has
      clarified that for the present he is only pressing the plea of juvenility and
G     if he fails on that count would address on the issue of conviction and
      sentence. Further based on the said report, learned senior counsel for
      the appellant submitted firstly that the sentence awarded cannot be given
      effect to under Section 9(2) of the 2015 Act. Secondly, it is submitted
      that from the date of the arrest in December, 2017, the appellant has
      already undergone incarceration of more than 5 years whereas under
H
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                 595
                 [VIKRAM NATH, J.]

section 18 of the 2015 Act, a juvenile below 16 years, even if convicted        A
for a heinous offence, the maximum sentence that can be awarded is 3
years stay in a special home. In view of the above, according to learned
senior counsel the appellant is liable to be released forthwith.
       7. Learned counsel for the State of Madhya Pradesh has
strenuously urged that the appellant be subjected to an ossification test       B
to determine the correct age, as according to her, the documents filed
during the inquiry before the Trial Court are not covered under Section
94 of the 2015 Act, and therefore, the only option left was that an
ossification test be conducted by a medical board. No other submission
has been advanced on behalf of the State.
                                                                                C
       8. Before considering the submissions advanced by learned
counsel for the parties, it would be necessary to first consider the inquiry
report submitted by the Trial Court dated 27.10.2022. If the said report
is accepted and approved, then the appellant would be declared to be a
child which may then entail necessary consequences as per the 2015
Act. It would be relevant to note here that no objection has been filed by      D
the respondent-State to the report submitted by the Trial Court. The only
submission advanced on behalf of the respondent-State is for getting the
ossification test conducted.
       9. We have perused the report and also the material evidence led
before the Trial Court on the basis of which the conclusion has been            E
drawn by the Trial Court. The report is based upon documentary evidence
as also oral evidence of the present head-mistress (IW-01), the retired
headmaster (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 a     F
private institution but is a government primary school and this Court
does not find any reason to dis-believe or even doubt the testimony of
government servants both working and retired. In addition to the mark
sheets by the institution, there is also the date of birth certificate issued
by the institution (I-3). Further, the original Scholar register and other
documents were also produced before the Trial Court in the inquiry.             G
This Court, therefore, has no reason to doubt the correctness of the
conclusion arrived at by the Trial Court regarding the date of birth of the
appellant. We, therefore, accept the report of the Trial Court and hold
that the appellant was aged 15 years, 4 months and 20 days on the date
of the incident.                                                                H
596            SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A           10. In order to test the submission of learned counsel for the
      respondent-State, Section 94 of the 2015 Act which is relevant is
      reproduced hereunder:
            “94 Presumption and determination of age:
            (1) Where, it is obvious to the Committee or the Board, based on
B           the appearance of the person brought before it under any of the
            provisions of this Act (other than for the purpose of giving evidence)
            that the said person is a child, the Committee or the Board shall
            record such observation stating the age of the child as nearly as
            may be and proceed with the inquiry under section 14 or section
C           36, as the case may be, without waiting for further confirmation
            of the age.
            (2) In case, the Committee or the Board has reasonable grounds
            for doubt regarding whether the person brought before it is a child
            or not, the Committee or the Board, as the case may be, shall
D           undertake the process of age determination, by seeking evidence
            by obtaining –
            (i) the date of birth certificate from the school, or the matriculation
            or equivalent certificate from the concerned examination Board,
            if available; and in the absence thereof;
E           (ii) the birth certificate given by a corporation or a municipal
            authority or a panchayat;
            (iii) and only in the absence of (i) and (ii) above, age shall be
            determined by an ossification test or any other latest medical age
            determination test conducted on the orders of the Committee or
F           the Board:
            Provided such age determination test conducted on the order of
            the Committee or the Board shall be completed within fifteen
            days from the date of such order.
            (3) The age recorded by the Committee or the Board to be the
G           age of person so brought before it shall, for the purpose of this
            Act, be deemed to be the true age of that person.”
             11. On a careful perusal of the above noted provision and the
      facts of the present case, the above argument of the learned counsel for
      the State is liable to be rejected for the following reasons:
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  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                597
                 [VIKRAM NATH, J.]

      a) firstly, that during the inquiry before the Trial Court, the State    A
      did not take any objection whatsoever with regard to the
      documents filed on behalf of the appellant and the evidence led
      on behalf of the appellant so much so that the State did not even
      cross-examine the witnesses who were examined in the inquiry.
      Permitting the State to raise such an objection now once the
                                                                               B
      conclusive finding has been recorded by the Trial Court after an
      elaborate inquiry would be unjust and not warranted. The State
      had full opportunity to raise such a plea before the Trial Court in
      the inquiry and then it was for the Trial Court to take a call as to
      whether any ossification test was necessary or not;
      b) Secondly, ossification test will only give a broad assessment of      C
      the age. It cannot give an exact age. There is also an element of
      margin of plus or minus 1 to 2 years. Even if we permit the said
      test, it does not lead us anywhere. It will have no bearing on the
      assessment made by the Trial Court after the inquiry;
      c) Thirdly, the first preference for determination of age is the         D
      birth certificate issued by the school or a matriculation certificate.
      Although it has been submitted that no birth certificate of the
      school was submitted, learned counsel for the appellant has pointed
      out from the documents attached to the report that in addition to
      the mark sheets and the school leaving certificate, the birth            E
      certificate was also filed which is Annexure I-3 to the report. It is
      in the absence of the first category of documents being not
      available that the birth certificate from the municipal corporation
      is to be considered; and
      d) Lastly, if under the first and second columns, documents are          F
      not available, then reference to medical board and holding of an
      ossification test comes into play.
      12. In the present case, there being birth certificate from the school
available and that too a government primary school, we do not find any
reason to doubt its correctness and all the more when it has been duly         G
proved in the inquiry before the Trial Court. Thus, the objections raised
by the learned counsel for the State are liable to be rejected.
       13. The next question is as to what relief the appellant can be
granted in view of the fact that he has been held to be a child and
that too below 16 years of age under the 2015 Act. In this context
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598            SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     Section 9 of the 2015 Act would be relevant. The same is reproduced
      hereunder:
            “9. Procedure to be followed by a Magistrate who has not
            been empowered under this Act.—
            (1) When a Magistrate, not empowered to exercise the powers
B           of the Board under this Act is of the opinion that the person alleged
            to have committed the offence and brought before him is a child,
            he shall, without any delay, record such opinion and forward the
            child immediately along with the record of such proceedings to
            the Board having jurisdiction.
C           (2) In case a person alleged to have committed an offence claims
            before a court other than a Board, that the person is a child or
            was a child on the date of commission of the offence, or if the
            court itself is of the opinion that the person was a child on the date
            of commission of the offence, the said court shall make an inquiry,
D           take such evidence as may be necessary (but not an affidavit) to
            determine the age of such person, and shall record a finding on
            the matter, stating the age of the person as nearly as may be:
            Provided that such a claim may be raised before any court and it
            shall be recognised at any stage,even after final disposal of the
E           case, and such a claim shall be determined in accordance with
            theprovisions contained in this Act and the rules made thereunder
            even if the person has ceased to be a childon or before the date of
            commencement of this Act.
            (3) If the court finds that a person has committed an offence and
F           was a child on the date ofcommission of such offence, it shall
            forward the child to the Board for passing appropriate orders and
            thesentence, if any, passed by the court shall be deemed to have
            no effect.
            (4) In case a person under this section is required to be kept in
            protective custody, while the person’sclaimof being a child is being
G
            inquired into, such person may be placed, in the intervening period
            in aplace of safety.”
            14. A perusal of the aforesaid section firstly gives a right to a
      person alleged to have committed an offence to claim that he is a child
      on the date of commission of offence and if such a claim is raised, the
H
     KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                              599
                    [VIKRAM NATH, J.]

Court concerned shall make an inquiry, take such evidence as may be             A
necessary other than the affidavit to determine the age of such person.
The proviso to sub-section (2) further makes it clear that such a claim
can be raised before any Court and the same could be recognised at any
stage even after the case has been finally decided. The claim so made
would be determined in accordance with the provisions of the 2015 Act
                                                                                B
and the rules made thereunder even if such person has seized to be a
child whether on or before the commencement of 2015 Act. The law
provides full coverage to a person who is established to be a child on the
date of the offence to avail the benefits admissible to a child under the
2015 Act even if the case has been finally decided and also such person
has attained majority. Further, sub-section (3) provides that if it is found    C
in the inquiry that such person was a child on the date of commission of
such offence then the Court is required to forward the child to the Juvenile
Justice Board3 for passing appropriate orders and further if any sentence
has been imposed by the Court, the same shall be deemed to have no
effect. In view of the above statutory provisions and in view of the
                                                                                D
findings recorded, the appellant having been held to be a child on the
date of commission of the offence, the sentence imposed has to be made
ineffective.
      15. The relief to be extended to the appellant may be examined
through a different perspective also, that is, whether he has already
undergone maximum sentence which can be awarded against a child in              E
conflict with law for committing a heinous offence and who is below
age of 16 years. Section 18 of the 2015 Act would be relevant in this
respect and the same is reproduced hereunder:
          “18. Orders regarding child found to be in conflict with law.—
                                                                                F
          (1) Where a Board is satisfied on inquiry that a child irrespective
          of age has committed a petty offence, or a serious offence, or
          a child below the age of sixteen years has committed a heinous
          offence, then, notwithstanding anything contrary contained in
          any other law for the time being in force, and based on the
          nature of offence, specific need for supervision or intervention,     G
          circumstances as brought out in the social investigation report
          and past conduct of the child, the Board may, if it so thinks
          fit,—

3
    In short, “JJB”                                                             H
600      SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     (a) allow the child to go home after advice or admonition by
      following appropriate inquiry and counselling to such child and to
      his parents or the guardian;
      (b) direct the child to participate in group counselling and similar
      activities;
B     (c) order the child to perform community service under the
      supervision of an organisation or institution, or a specified person,
      persons or group of persons identified by the Board;
      (d) order the child or parents or the guardian of the child to pay
      fine:
C
         Provided that, in case the child is working, it may be ensured
      that the provisions of any labour law for the time being in force
      are not violated;
      (e) direct the child to be released on probation of good conduct
      and placed under the care of any parent, guardian or fit person,
D
      on such parent, guardian or fit person executing a bond, with or
      without surety, as the Board may require, for the good behaviour
      and child’s well-being for any period not exceeding three years;
      (f) direct the child to be released on probation of good conduct
      and placed under the care and supervision of any fit facility for
E     ensuring the good behaviour and child’s well-being for any period
      not exceeding three years;
      (g) direct the child to be sent to a special home, for such period,
      not exceeding three years, as it thinks fit, for providing reformative
      services including education, skill development, counselling,
F     behaviour modification therapy, and psychiatric support during the
      period of stay in the special home:
         Provided that if the conduct and behaviour of the child has
      been such that, it would not be in the child’s interest, or in the
      interest of other children housed in a special home, the Board
G     may 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
H     (ii) attend a vocational training centre; or
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                 601
                 [VIKRAM NATH, J.]

      (iii) attend a therapeutic centre; or                                     A
      (iv) prohibit the child from visiting, frequenting or appearing at a
      specified place; or
      (v) undergo a de-addiction programme.
      (3) Where the Board after preliminary assessment under section            B
      15 pass an order that there is a need for trial of the said child as
      an adult, then the Board may order transfer of the trial of the case
      to the Children’s Court having jurisdiction to try such offences.”
       16. On a perusal of the aforesaid Section 18 of the 2015 Act, it is
to be noticed that the JJB having found a child to be in conflict with law      C
who may have committed a petty or serious offence and where heinous
offence is committed, the child should be below 16 years, can pass various
orders 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 a period of three years and the JJB has to take          D
full care of ensuring the best facilities that could be provided to the child
for providing reformative services including education, skill development,
counselling and psychiatric support.
       17. In the present case, the appellant is held to be less than 16
years, and therefore, the maximum punishment that could be awarded is           E
upto 3 years. The appellant has already undergone more than 5 years.
His incarceration beyond 3 years would be illegal, and therefore, he
would be liable to be released forthwith on this count also.
       18. Having considered the facts of the case and the findings
recorded above, it would also be appropriate to briefly deal with the           F
case law on the point as to whether once an accused after conviction
at the stage of appeal is held to be a juvenile/child under the provisions
of the 2015 Act,what would be the status of the trial, the conviction
and sentence recorded by the Trial Court and the appellate
Courts.Whether the trial itself would stand vitiated for lack of jurisdiction
by the regular Sessions Court and it would be the JJB alone which               G
could make an inquiry into the offence committed based upon the
evidence led by the prosecution. If the inquiry has not been conducted
by the JJB, then whether the entire proceedings need to be quashed or
only the sentencing aspect would require consideration in accordance
with the 2015 Act.                                                              H
602                SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A            19. We may note here at the outset that the appellant for the
      present has chosen not to challenge the conviction but is only claiming
      juvenility and consequently the benefit of sentence provided under the
      2015 Act, reserving his right to address on conviction and sentence if he
      fails on the preliminary issue of juvenility.
B            20. There are a series of judgments on the said issue. Some have
      set aside the conviction, sentence and have terminated the proceedings,
      others have upheld the conviction but on the basis of sentence already
      undergone being more than the maximum permissible under the Juvenile
      Justice (Care and Protection of Children) Act, 20004 have directed for
      release of the accused and third, where after maintaining the conviction,
C     this Court has referred the matter to the JJB for passing appropriate
      orders on sentence. All the judgments delivered earlier which are briefly
      discussed hereunder relate to the 2000 Act. Present case falls under the
      2015 Act as the offence itself is of the year 2017.
             21. In the case of Jitendra Singh alias Babboo Singh and
D     another vs. State of Uttar Pradesh5, a two-Judge Bench of this Court
      confirmed the conviction but as the appellant therein could only be
      awarded imposition of fine, the existing fine of Rs.100/- was found to be
      grossly inadequate and accordingly, the matter was remitted to the JJB
      for determining the appropriate quantum of fine that should be levied on
E     the appellant and the compensation that should be awarded to the family
      of the victim.
             22. Justice Madan B. Lokur, the first author of the judgment
      dealt with the issue as to whether the conviction could be sustained by
      this Court or it was only the sentence which was to be dealt with in
F     accordance with the 2000 Act. Almost all the previous judgments were
      referred to in paragraphs 24, 24.1 to 24.7, 25, 25.1 to 25.2, 26, 26.1 to
      26.2 and 27 of the report with respect to all the four categories of the
      cases wherein different views have been taken by this Court. The first
      category was where conviction was upheld but sentence quashed. The
      second category was where conviction was upheld but sentence was
G     modified to the period already undergone. The third category was where
      conviction and sentence both were set aside and the fourth category
      was where the conviction was upheld and the matter referred to the JJB

      4
          In short “2000 Act”
      5
H         2013 (11) SCC 193
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                               603
                 [VIKRAM NATH, J.]

for awarding a suitable sentence. In paragraph 28 of the report Justice       A
Lokur sums up the four categories. Further in paragraph 29, reference
is made to section 20 of the 2000 Act and it was finally concluded in
paragraph 30 that the matter needs to be examined on merits and if the
juvenile is found guilty of the offence, he could not be allowed to go
unpunished but considering the provisions of the 2000 Act, the question
                                                                              B
of sentence must be left to the JJB. It would be proper to reproduce
paragraphs 28, 29 and 30 of the report of Justice Lokur, which read as
follows:
      “28.The sum and substance of the above discussion is that in
      one set of cases this Court has found the juvenile guilty of the
      crime alleged to have been committed by him but he has gone             C
      virtually unpunished since this Court quashed the sentence
      awarded to him. In another set of cases, this Court has taken
      the view, on the facts of the case that the juvenile is adequately
      punished for the offence committed by him by serving out some
      period in detention. In the third set of cases, this Court has          D
      remitted the entire case for consideration by the jurisdictional
      Juvenile Justice Board, both on the innocence or guilt of the
      juvenile as well as the sentence to be awarded if the juvenile is
      found guilty. In the fourth set of cases, this Court has examined
      the case on merits and after having found the juvenile guilty of
      the offence, remitted the matter to the jurisdictional Juvenile         E
      Justice Board on the award of sentence.
      29. In our opinion, the course to adopt is laid down in Section 20
      of the Juvenile Justice (Care and Protection of Children) Act,
      2000. This reads as follows:
                                                                              F
          “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       G
      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:                                     H
604            SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A              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
B           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
            provisions had been in force, for all purposes and at all material
            times when the alleged offence was committed.”
C
            30. It is clear that the case of the juvenile has to be examined on
            merits. If it found that the juvenile is guilty of the offence alleged
            to have been committed, he simply cannot go unpunished.
            However, as the law stands, the punishment to be awarded to him
            or her must be left to the Juvenile Justice Board constituted under
D           the 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 be
            followed.”
E            23. Justice T.S. Thakur while concurring with the view taken
      by Justice Lokur, in his supplementing opinion also dealt with this aspect
      of the matter and in paragraph 82 of the report was of the view that
      insofar as the conviction was concerned, the same could be examined
      by this Court, however, on the sentence part, the benefit admissible under
F     the 2000 Act ought to be extended. Paragraph 82 of the report is
      reproduced hereunder: -
            “82. A careful reading of the above would show that although a
            claim of juvenility can be raised by a person at any stage and
            before any court, upon such court finding the person to be a juvenile
G           on the date of the commission of the offence, it has to forward
            the juvenile to the Board for passing appropriate orders and the
            sentence, if any, passed shall be deemed to have (sic no) effect.
            There is no provision suggesting, leave alone making it obligatory
            for the court before whom the claim for juvenility is made, to set
            aside the conviction of the juvenile on the ground that on the date
H           of commission of the offence he was a juvenile, and hence not
     KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                  605
                    [VIKRAM NATH, J.]

         triable by an ordinary criminal court. Applying the maxim                  A
         expression unius est exclusion alterius, it would be reasonable
         to hold that the law insofar as it requires a reference to be made
         to the Board excludes by necessary implication any intention on
         the part of the legislature requiring the courts to set aside the
         conviction recorded by the lower court. Parliament, it appears,
                                                                                    B
         was content with setting aside the sentence of imprisonment
         awarded to the juvenile and making of a reference to the Board
         without specifically or by implication requiring the court concerned
         to alter or set aside the conviction. That perhaps is the reason
         why this Court has in several decisions simply set aside the sentence
         awarded to the juvenile without interfering with the conviction            C
         recorded by the court concerned and thereby complied with the
         mandate of Section 7-A(2) of the Act.”
       24. Similar view was taken by a two-Judge Bench of this Court in
the case of Mahesh vs. State of Rajasthan and others6,wherein this
Court confirmed the conviction. However, the sentence imposed was                   D
modified to the period undergone. The aforesaid judgment relies upon
the law laid down in the case of Jitendra (supra).After framing the
issue as to whether the validity/correctness of the conviction recorded
by Trial Court could be maintained, this Court proceeded to give due
consideration in paragraph nos. 4, 5 and 6 of the judgment. Thereafter
the Bench proceeded to consider the merits of the conviction and upheld             E
the same in paragraph no.7. Paragraph nos. 4 to 7 of the report are
reproduced hereunder:
         “4. In the aforesaid facts, two questions arise for determination in
         the present appeals before us. The first is with regard to the validity/
         correctness of the conviction recorded by the learned trial Court          F
         and affirmed by the High Court and, secondly, if the conviction to
         be maintained what should be the appropriate measure of
         punishment/sentence and whether the same should be imposed
         by this Court or the matter be remanded to the Juvenile Justice
         Board in accordance with the provisions of Section 20 of the Act           G
         of 2000.
         5. The position in law in this regard is somewhat unsettled as has
         been noticed and dealt with by this Court in Jitendra Singh alias

6
    (2018) SCCOnline SC 3655                                                        H
606      SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A     Babboo Singh and another versus State of Uttar Pradesh wherein
      in paragraphs 24 to 27 four categories of cases have been culled
      out where apparently different approaches had been adopted by
      this Court. The net result is summed up in paragraph 28 of the
      aforesaid report which explains the details of the categorization
      made in the earlier paragraphs of the said report. Paragraph 28 of
B
      the said report, therefore, would require a specific notice and is
      reproduced below:
         “28. The sum and substance of the above discussion is that in
         one set of cases this Court has found the juvenile guilty of the
         crime alleged to have been committed by him but he has gone
C        virtually unpunished since this Court quashed the sentence
         awarded to him. In another set of cases, this Court has taken
         the view, on the facts of the case that the juvenile is adequately
         punished for the offence committed by him by serving out some
         period in detention. In the third set of cases, this Court has
D        remitted the entire case for consideration by the jurisdictional
         Juvenile Justice Board, both on the innocence or guilt of the
         juvenile as well as the sentence to be awarded if the juvenile is
         found guilty. In the fourth set of cases, this Court has examined
         the case on merits and after having found the juvenile guilty of
         the offence, remitted the matter to the jurisdictional Juvenile
E        Justice Board on the award of sentence.”
      6. The validity of the conviction in respect of the incident which
      occurred almost two decades back, in our considered view, ought
      to be decided in these appeals and the entire of the proceedings
      including the punishment/sentence awarded should not be interfered
F     with on the mere ground that the accused appellants were juveniles
      on the date of commission of the alleged crime. Judicial approaches
      must always be realistic and have some relation to the ground
      realities. We, therefore, adopt one of the possible approaches that
      has been earlier adopted by this Court in the four categories of
G     cases mentioned above to examine the correctness of the
      conviction of the accused appellants under the provisions of the
      IPC, as noticed above.
      7. In this regard, having perused the materials on record we find
      no ground whatsoever to take a view different from what has
H     been recorded by the learned trial Court and affirmed by the High
     KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                               607
                    [VIKRAM NATH, J.]

         Court. The conviction of the accused appellants under Sections          A
         323, 324, 325, 427, 455 read with Section 149 IPC accordingly
         shall stand affirmed.”
       25. In the case of Satya Deo alias Bhoorey vs. State of Uttar
Pradesh7, following the ratio and legal position laid down in Jitendra
Singh (supra), this Court upheld the conviction and after setting aside          B
the sentence of life imprisonment awarded to the appellant, it was directed
that the jail authorities would produce the appellant before the JJB within
seven days, and thereafter, the JJB would pass appropriate orders
regarding 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 Raju   C
vs. State of Haryana8, wherein Justice Mohan M. Shantanagoudar
speaking for himself, Justice N.V.Ramana (as he then was) and Justice
Indira Banerjee, set aside the conviction and sentence of the appellant
therein and as the appellant therein had already undergone almost six
years’ incarceration but had been released on bail, the bail bonds were
discharged and all proceedings against the appellant were declared to            D
have terminated.
        27. In the aforesaid case, the appellant had not taken the plea of
juvenility before the Trial Court, however, such plea was raised before
the High Court but the same was rejected. However, this Court got an
inquiry conducted by the Registrar (Judicial) of this Court who found            E
him to be aged less than 18 years. The judgment in this case mainly dealt
with the issue as to whether the report of Registrar (Judicial) of this
Court could be accepted over and above the finding of the High Court
which was different. The judgment proceeds to deal with this issue and
ultimately comes to the conclusion that this could be done provided this         F
Court itself tests the correctness of the report of the Registrar (Judicial).
It is only in the penultimate paragraph no. 27 while allowing the appeal it
granted the relief of setting aside the conviction, sentence and further
terminated the entire proceedings. There is no prior discussion on the
issue whether conviction was required to be set aside or not on this
technical ground. Merits of the conviction was not gone into. No ratio is        G
laid 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                                                            H
608                SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A            28. Following the above judgment in the case of Raju (supra), a
      two-judge Bench of this Court in the case of Ashok Kumar Mehra
      and Another Vs. State of Punjab and Others9 set aside the judgment
      of conviction and sentence awarded to appellant no. 2 therein who had
      claimed to be a juvenile. Paragraph No. 14 of the said judgment which
      grants the relief is reproduced herein:
B
               “In view of the foregoing discussion, we are of the considered
               opinion that since Appellant 2 was a juvenile on the date of
               commission of the offence and though till date he has already
               undergone considerable jail sentence partly as an undertrial and
C              partly as a convict, yet the appeal filed by Appellant 2 has to be
               allowed as was done in the case of Raju (supra) without going
               into the merits of the case and passing any other consequential
               order in that regard.”
             29. It will be pertinent to mention that in this judgment also there
D     is no discussion with regard to the issue as to whether the conviction
      should be set aside. This judgment also does not lay down any ratio that
      if with respect to a juvenile a trial has been conducted by a Sessions
      Court without the accused having claimed juvenility before it, conviction
      could be set aside as being vitiated in law if subsequently it is held that
      the accused was a juvenile.
E
             30. The above judgments relate to an offence covered by either
      the Juvenile Justice Act, 198610 or the 2000 Act. We now proceed to
      briefly discuss the provisions under the 2015 Act. Section 9 of the 2015
      Act is already reproduced in the earlier part of this judgment. According
F     to sub-section (3) of section 9 of the 2015 Act, the Court which finds
      that the person who committed the offence was a child on the date of
      commission of such offence would forward the child to the JJB for
      passing appropriate orders and sentence, if any, passed by the Court
      shall be deemed to have no effect. This does not specifically or even
      impliedly provide that the conviction recorded by any Court with respect
G     to a person who has subsequently after the disposal of the case found to
      be juvenile or a child, would also lose its effect rather it is only the
      sentence if any passed by the Court would be deemed to have no effect.

      9
          In 2019 (6) SCC 132
      10
H          “the 1986 Act”
  KARAN @ FATIYA v. THE STATE OF MADHYA PRADESH                                 609
                 [VIKRAM NATH, J.]

       31. There is another reason why a trial conducted and conviction         A
recorded by the Sessions Court would not be held to be vitiated in
law even though subsequently the person tried has been held to be a
child.
        32. The intention of the legislature was to give benefit to a person
who is declared to be a child on the date of the offence only with respect      B
to its sentence part. If the conviction was also to be made ineffective
then either the jurisdiction of regular Sessions Court would have been
completely excluded not only under section 9 of the 2015 Act but also
under section 25 of the 2015 Act, provision would have been made that
on a finding being recorded that the person being tried is a child, a pending
trial should also be relegated to the JJB and also that such trial would be     C
held to be null and void. Instead, under section 25 of the 2015 Act, it is
clearly provided that any proceeding pending before any Board or Court
on the date of commencement of the 2015 Act shall be continued in that
Board or Court as if this Act had not been enacted. Section 25 is
reproduced hereunder:                                                           D
      “25. Special provision in respect of pending cases.-
      Notwithstanding anything contained in this Act, all proceedings in
      respect of a child alleged or found to be in conflict with law pending
      before any Board or court on the date of commencement of this
      Act, shall be continued in that Board or court as if this Act had not     E
      been enacted.”
       33. Having considered the statutory provisions laid down in section
9 of the 2015 Act and also section 7A of the 2000 Act which is identical
to section 9 of the 2015 Act, we are of the view that merits of the
conviction could be tested and the conviction which was recorded cannot         F
be held to be vitiated in law merely because the inquiry was not conducted
by JJB. It is only the question of sentence for which the provisions of the
2015 Act would be attracted and any sentence in excess of what is
permissible under the 2015 Act will have to be accordingly amended as
per the provisions of the 2015 Act. Otherwise, the accused who has
committed a heinous offence and who did not claim juvenility before the         G
Trial Court would be allowed to go scot-free. This is also not the object
and intention provided in the 2015 Act. The object under the 2015 Act
dealing with the rights and liberties of the juvenile is only to ensure that
if he or she could be brought into the main stream by awardinglesser
sentence and also directing for other facilities for welfare of the juvenile    H
610              SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     in conflict with law during his stay in any of the institutions defined under
      the 2015 Act.
            34. In view of the above discussion and the position in law as laid
      down by the aforesaid judgments and many others referred to in the
      above judgments, we approve the view taken by this court in the case of
B     Jitendra 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 is
      set aside. Further as the appellant at present would be more than 20
C     years old, there would be no requirement of sending him to the JJB or
      any other child care facility or institution. Appellant is in judicial custody.
      He shall be released forthwith. The impugned judgement shall stand
      modified to the aforesaid extent.
             36. Both the appeals stand partly allowed.
D            37. Pending applications, if any, are disposed of.


      Divya Pandey                                              Appeals partly allowed.
      (Assisted by : Roopanshi Virang, LCRA)


E




F




G




H