BHIM @ UTTAM GHOSHversusSTATE OF WEST BENGAL

               [2010] 14 (ADDL.) S.C.R. 175


                  BHIM @ UTTAM GHOSH                               A
                              V.
                STATE OF WEST BENGAL
            (Criminal Appeal No. 2163 of 2010)
                   NOVEMBER 12, 2010
                                                                   B
             [D.K. JAIN AND H.L. DATTU, JJ.]

    Juvenile Justice (Care and Protection of Children) Act,
2000:
                                                                   c
      ss.2(k), 2(1), 7A, 20, 49 - Held: Persons below the afje
of eighteen years on the date of commission of the offence
would be treated as juveniles even if the claim of juveni/ity is
raised after they have attained the age of eighteen years on
or before the date of the commencement of the 2000 Act and         0
they were undergoing sentences upon being convicted - In
the instant case, appellant was convicted u/s.307, /PC - His
age at the time of commission of offence was about 15 years,
therefore, he is held to be a juvenile, within the meaning of
s.2(1) of the amended 2000 Act - Juvenile Justice (Care and        E
Protection of Children) Rules 2007 - rr.12 and 98 - Penal
Code, 1860 - s. 307.

     Claim of juvenility - Relevant date for determining age
of the person claiming to be juvenile - Held: Would be the
date on which the offence was committed and not the date on        F
which he was produced before the competent authority or in
the court.

      s.20, Explanation - Determination of juvenility- Held: In
all pending cases, which include not only trials but even G
subsequent proceedings by way of revision or appeal, etc.,
the juvenility has to be determined in terms of clause (/) of
s. 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
                             175                                   H
    176   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   provisions of the said 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 - Juvenile Justice
    Act, 1986.

       s.7A(1), proviso - Claim of juvenility - Held: Can be
8
  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
C commencement of the 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 s. 2(k) of
  the Act, which defines 'Juvenile" or "child" to mean a person
D who has not completed eighteenth year of age, ·had always
  been in existence even during the operation of the 1986 Act
  - Juvenile Justice Act, 1986 - Juvenile Justice (Care and
  Protection of Children) Rules 2007 - rr.12 and 98.

E      s. 2(1) - 'Juvenile in conflict with law" - Meaning of - Held:
    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.

         s. 20 - Special provision in respect of pending cases -
F   Held: 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 him to the
    Juvenile Justice Board for passing orders in accordance with
    the provisions of the 2000 Act.
G
       ss. 15, 16 - Order - Conviction uls. 307 /PC - Appellant,
  juvenile at the time of commission of offence, has attained
   42 years of age - Held: In view of his age, it would not be
  conducive for the environment of Special Home particularly
H to the interest of other juveniles housed therein, to send the
    SHIM @ UTTAM GHOSH v. STATE OF WEST                    177
                  BENGAL
appellant there or to keep him at some other place, as            A
postulated in s. 16 for the remaining period - Therefore, while
sustaining his conviction, the appellant is directed to be
released forthwith - Penal Code, 1860 - s. 307.

    Pratap Singh v. State of Jharkhand & Anr. (2005) 3 SCC        B
551; Ravinder Singh Gorkhi v. State of UP. (2006) 5 SCC
584 - relied on.

                     Case Law Reference:
    (2005) 3 sec 551          relied on             Para 8        c
    c2oos) 5 sec 584          relied on             Para 8
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2163 of 2010.

    From the Judgment & Order daed 01.12.2009 of the High         D
Court at Calcutta in C.R.A. No. 77 of 1986.

   R.S. Suri, Rana Mukherjee, Abhijit Sengupta, Nitish
Massey, M. lndarani for the Appellant.
                                                                  E
    Satish Vig for the Respondent.

    The Order of the Court was delivered by

                         ORDER
                                                                  F
    D.K. JAIN, J.

    1. Leave granted.

    2. Challenge in this appeal, by special leave, is to the
judgment, dated 1st December 2009, delivered by the High          G
Court of Calcutta in C.R.A. No. 77 of 1986, upholding the
conviction of the appellant for an offence punishable under
Section 307 of the Indian Penal Code, 1860 (for short "IPC") .

   . 3. Since learned counsel for the appellant has addressed     H
    178     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A us only on the question of applicability of the provisions of the
  Juvenile Justice (Care and Protection of Children) Act, 2000
  (for short "the 2000 Act") to the facts of the case, we deem it
  unnecessary to state the facts, leading· to the filing of this
  appeal, except to the extent that the incident, resulting in injuries
B to the victim took place on 6th March 1983. The first information
  report (for short "the FIR") was lodged and registered on 21st
  March, 1983 against the appellant and four other persons.
  Chargesheet was filed on 13th June 1983 against all the.
  accused; who were tried for offences under Sections 306 and
c 148 of the IPC and ultimately, vide judgment dated 22nd
  February 1986, the Additional Sessions Judge, convicted the
  appellant for an offence punishable under Section 307 of the
  IPC and acquitted the other four accused. The appellant was
  sentenced to undergo rigorous imprisonment for a period of five
  years and to pay a fine of Rs.500/- with default stipulation.
0
         4. Aggrieved by the order of conviction, the appellant
    carried the matter in appeal before the Higti Court. As afore-
    stated, the High Court, vide the impugned judgment has
    dismissed the appeal.
E
          5. Hence, the present appeal.

       6. Vide order dated 22nd October 2010, this Court had
  directed the respondent-State to make inquiry so as to
  determine the age of the appellant. Pursuant thereto, affidavit
F dated 9th November 2010, has been filed by a Sub-Inspector
  of Police, Birbhum ()Nest Bengal), on behalf of the State, stating
  that as per the records available with the Board of Secondary
  Education (West Bengal), the date of birth of the accused is
  4th January 1968, which shows that the age of the appellant
G as on the date of commission of offence i.e. 6th March 1983,
  was 15 years, 2 months and 2 days.

          7. We have heard learned counsel for the parties.

          8. It is well settled that the date relevant for determining
H
      BHIM@ UTTAM GHOSH v. STATE OF WEST                     179
             BENGAL [D.K. JAIN, J.]
the age of the accused, who claims to be a juvenile/child would      A
be the date on which the offence had been committed and not
the date on which he is produced before the competent authority
or in the court. (See: Pratap Singh Vs. State of Jharkhand &
Anr1• and Ravinder Singh Gorkhi Vs. State of U.P. 2)
                                                                     8
     9. In Pratap Singh's case (supra), the Constitution Bench
also dealt with the question as to whether the 2000 Act will be
applicable in a case where criminal proceedings were initiated
when the Juvenile Justice Act, 1986 (for short "the 1986 Act")
was in force. Taking into consideration the provisions of
Sections 3 and 20 along with the definition of the term "juvenile"   C
in Section 2(k) of the 2000 Act, as contrasted with the definition
of a "male juvenile" in Section 2(h) of the 1986 Act, by majority,
it was held that the 2000 Act would be applicable in a
proceeding pending in any court/authority initiated under the
1986 Act and which was pending when the 2000 Act came                D
into force and the person concerned had not completed 18
years of age as on 1-4-2001. 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 who had not
completed the age of 18 years as on 1-4-2001, would be               E
governed by the provisions of the 2000 Act.

     10. The decision in Pratap Singh's case (supra) led to
substitution of Section 2(1); the insertion of Section 7A and
proviso and the Explanation to Section 20 of the 2000 Act by         F
Act 33 of 2006 as also introduction of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 containing Rule
12, which lays down the procedure to be followed in determining
the age of a child or a juvenile.

   11. Section 20 of the 2000 Act, the pivotal provision, as         G
amended, reads as follows:


1.   (2005) 3 sec 551.
2.   (2006) 5 sec 584.                                               H
    180     SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A         "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
B         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
c         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
D         juvenile.

          Explanation.-ln 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
E         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 material times
F         when the alleged offence was committed."

       12. 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
  or appeal, etc., the determination of juvenility of a juvenile has
G to be in terms of clause (I) 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 said 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
H committed.
     BHIM@ UTTAM GHOSH v. STATE OF WEST                      181 -
            BENGAL [D.K. JAIN, J.]
     13. Clause (I) of Section 2 of the 2000 Act provides that       A
"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    B
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 2000 Act.

     14. At this juncture, it will be profitable to take note of
                                                                     c
Section    7A, inserted in the 2000 Act with effect from 22-8-
2006. It reads as follows:

    "7A. Procedure to be followed when claim of juvenility is
    raised before any court.-( 1) Whenever a claim of                D
    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,         E
    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
                                                                     F
    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.
                                                                     G
    (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."                                    H
    182    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A      15. 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 2000 Act and the Rules framed
B thereunder, even if the juvenile has ceased to be so on or before
  the date of the commencement of the said 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
c 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.

        16. It is, thus, manifest from a conjoint reading of Sections
D 2(k}, 2(1), 7A, 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 would
  be treated as juveniles even if the claim of juvenility is raised
E 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.

        17. In the instant case, according to the report submitted
F on behalf of the State, the appellant was about 15 years old at
  the time of the commission of the offence. The correctness of
  the report is not in question and, therefore, in light of the afore-
  stated legal position, the appellant has to be held to be a
  juvenile, within the meaning of Section 2(1) of the amended 2000
G Act, and is to be governed by the provisions of the said Act.

       18. Having held so, the next question for consideration is
  as to what order of sentence is to be passed against the
  appellant, who stands convicted for offence punishable under
  Section 307 IPC, correctness whereof is not put in issue before
H us. The appellant is now aged about 42 years. Keeping his
    BHIM @ UTTAM GHOSH v. STATE OF WEST                     183
            BENGAL [D.K. JAIN, J.]
age in view, we feel that it would not be conducive for the        A
environment of the special home, particularly to the interest of
other juveniles housed therein, to send the appellant there or
to keep him at some other place, as postulated in Section 16
of the 2000 Act for the remaining period in terms of Section
15 of the said Act.                                                B

     19. Accordingly, while sustaining the conviction of the
appellant, we quash the sentence awarded to him and direct
his release forthwith, if not required in any other case. The
appeal succeeds partly, to the extent indicated above.

D.G.                                    Appeal partly allowed,