MOHD. FEROZ KHAN@ FEROZversusSTATE OF ANDHRA PRADESH

                   [2015] 15 S.C.R. 147


             MOHD. FEROZ KHAN@ FEROZ                           A
                             v.
             STATE OF ANDHRA PRADESH
          (Writ Petition (Criminal) No. 67 of 2014)
                                                               B
                  DECEMBER 16, 2015
              [J. CHELAMESWAR AND
            ABHAY MANOHAR SAPRE, JJ.]
       Juvenile Justice (Care and Protection of Children) Act,
2000 - ss.2(1), 20 - Convietion of petitioner for offence of C
murder - Plea of juvenility raised before Supreme court for
the first time for setting aside the sentence - Held: Since
petitioner was below 18 years on the date of commission of
offence, the provisions ofAct of 2000 would apply in his case -
Matter remitted to Juvenile Justice Board for· disposal of D
petitioner's case- Penal Code, 1860- ss. 1208, 302 and 396.
    Allowing the appeal and remitting the matter to the
Juvenile Justice Board, the Court
      HELD: It was held in *Hari Ram case that Section         E
20 enables the cou·rt to consider and determine the
juvenility of a person even after conviction by the regular
court and also empowers the court, while maintaining
the conviction, to set aside the sentence imposed and
forward the case to the Juvenile Justice Board                 F
concerned for passing sentence in accordance with the
provisions of the Juvenile Justice Act, 2000. In the instant
case, the offence was committed on 02.08.1999 and the
petitioner was found between the age group of 16-17
years i.e. below 18 years on the date of commission of         G
the offence. That apart, the question of juvenility of
petitioner was not gone into till date in accordance with
law by any Court. The petitioner is entitled to claim the
same relief as was granted in the case of Hari Ram by
this Court. The impugned order in so far as it relates-to      H
                            147
148        SUPREME COURT REPORTS                   [2015] 15 S.C.R.


A the petitioner is set aside. The matter is remitted to the
      concerned Juvenile Justice Board exercising jurisdiction
      for disposal of the petitioner's case in accordance with
      law. [Paras 16 to 19] [152-D; 153-H; 154-A-B, G-H; 155-
      A-C]
B          *Hari Ram v. State of Rajasthan & Anr. 2009 (7)
           SCR 623 : (2009) 13 SCC 211 - relied on.
                           Case Law Reference
           2009 (7) SCR 623          relied on         Para 10
c          CRIMINAL ORIGINAL JURISDICTION : Writ Petition
      (Criminal) No. 67 of 2014.
           Under Article 32 of the Constitution of India.
       R. K. Dash, Sr.Adv., Mohd. lrshad Hanif,AarifAli Khan,
D Advs. for the Appellant.
           S. Udaya Kumar Sagar, Krishna Kumar Singh, Advs. for
      the Respondent.
           The Judgment of the Court was delivered by
 E       ABHAY MANOHAR SAPRE, J.· 1. This writ petition
   under Article 32 of the Constitution of India is filed by the
   petitioner (Accused No.2, in short 'A-2') to raise the plea of
   juvenility alleging inter a/ia that he was juvenile on the date of
   the commission of offence, i.e., 02.08.1999 and hence entitled
 F to seek issuance of a writ in the nature of Certiorari and
   Mandamus for setting aside the order of sentence dated
   28.06.2004 passed by the Additional Metropolitan Sessions
   Judge, Hyderabad in Sessions Case No. 93 of 2002 as
   confirmed by the High Court by judgment/order dated
 G 27.02.2007 in Criminal Appeal No. 1825 of 2004 and by this
    Court on 08.07.201_0 in Criminal Appeal No.435/2008 against
    him.
        2. The brief facts of the case to appreciate the short
 H issue involved in the petition need mention infra:
   MOHD. FEROZ KHAN@ FEROZ v. STATE OF A. P.                    149
           [AB HAY MANOHAR SAPRE, J.]

(a) Rama Krishana Rao (hereinafter referred to as "deceased") A
was resident of Bodhan, Nizamabad District. He was running
a cycle shop called 'Krishna Shop' and also a theatre. One
Azam Ghouri (A-9) (died during the trial) who organized a
Tanjeem along with eight persons hatched a conspiracy to
snatch away the cash bag of the deceased. In pursuance B
thereof, on 02.08.1999, Azam Ghouri (A-9) chalked out a plan
at Sarbathi Canel Mozque, Bodhan. According to his plan,
Maqbool @Zubair@ Shahnawaz (A-1) will snatch the bag of
the deceased, Mohd. Feroz Khan @ Feroz (A-2), petitioner
herein, will drive the vehicle so as to facilitate them to escapec
from the scene after commission of the offence and other seven
persons will watch the movements by taking shelter near the
shop and house of the deceased. For implementation of their
plan, oneAbdulAahth (A-6) arranged a vehicle from his friend
(PW-12) and A-9 gave his pistol toA-1.                            D
(b) On 02.08.1999, a lorry loaded.with spare parts of Hero
cycle came to the shop of the deceased and the goods were .
unloaded into the shop at 10.30 p.m. By that time, the
deceased was having second show collections, which was
estimated to Rs.40,000/-. After closing the shop, when the E
deceased was proceeding to his house, which was only 500-
600 feet away, Y. Krishna Mohan (PW-1) was accompanying
him to drop him at his house and one Nazar Khan (PW-3) and
Habeeb Khan were following him and all of them were going
on foot. Suddenly A-1 intercepted and demanded the bag F
from the deceased and when the deceased tried to resist, A-
1 opened fire from the pistol at the deceased thrice, snatched
the bag and ran away. Due to that, the deceased fell down.
PW-1, wife of the deceased (PW-2) and the daughter of the
deceased took the deceased to Santhan Nursing Home where G
the doctors declared him dead. Thereafter PW-1 went to the
Police Station at about 11.50 p.m. and gave a complaint (Ex.
P-1) to the sub-Inspector of Police and on the basis of it, a
case was registered in Crime No.220 of 1999 under Sections
                                                                 H
150         SUPREME COURT REPORTS                    [2015] 15S.C.R.


A     120-B, 302 and 396 of the Indian Penal Code, 1860
      (hereinafter referred to as 'the IPC') and Section 25 of the Arms
      Act, 1959 against the accused persons. The investigation in
      the case was completed and the charge-sheet was filed by
      the Investigating Officer. After recording of evidence, by order
B     dated 28.06.2004, the Additional Metropolitan Sessions
      Judge, Hyderabad found the accused persons guilty of the
      offences charged and convicted the petitioner herein under
      Section 235(2) of the Criminal Procedure Code 1973
      (hereinafter referred to as 'the Cr.P.C.') for the offence
c     punishable under Section 302 read with Section 109 IPC and
      sentenced him to suffer imprisonment for life and to pay a fine
      of Rs.1000/-, in default to suffer 6 months simple imprisonment.

             3. Challenging the said order, the petitioner herein
      (A-2) along with other accused filed appeals before the High
0     Court. The High Court by order dated 27.02.2007 in Crl. A.
      No. 1825 of 2004 upheld the judgment and order passed by
      the Additional Metropolitan Session Judge, Hyderabad.

            4. Against the said order, the petitioner herein (A-2)
 E    along with other accused filed appeal bearing Crl.A. No.435
      of 2008 before this Court. This Court also dismissed the
      appeal by order dated 08.07.2010.

           5. The petitioner is serving the sentence in District Jail,
 F    Nizamabad, District Nizamabad,A.P.

              6. The petitioner has now filed this petition on the ground
      that he was 17 years, 3 months and 11 days old on the date of
      incident, i.e., 02.08.1999, and hence, in view ofthe provisions
      of the Juvenile Justice (Care and Protection of Children) Act,
G     2000, he was juvenile on the date of incident.

             7. It is with these background facts, the question for
      consideration in this writ Petition is whether the petitioner is
      entitled to claim any relief?
 H
   MOHD. FEROZ KHAN@FEROZ v. STATE OFA. P.                        151
          [ABHAY MANOHAR SAPRE, J.]

      8. The notice of this writ Petition was served on the       A
responde.nt-State and they are duly served and represented
by the counsel.
      9. Heard Mr. R.K. Dash, learned senior counsel for the
petitioner and Mr. S. Udaya Kumar Sagar, learned counsel for
the respondent.                                                   B
      10. Learned senior counsel for the petitioner made only
one submission. Learned counsel contended that the
petitioner's case is fully covered by the decision rendered in
Hari Ram vs State of Rajasthan & Anr~ [(2009) (13) SCC C
211] and hence the petitioner is also entitled for the same relief
which was granted to accused in the case of Hari Ram (supra).
      11. Learned counsel pointed out that since on the date
of commission of the offence (02.08.1999), the petitioner was
a minor i.e. 17 years, 3 months and 13 days of age (below 18 D
years) and hence he was entitled to get the b~nefit of law laid
down and the relief granted to accused in the case of Hari
Ram (supra). It was his submission that since the issue of
juvenility of the petitioner was not decided in accordance with
law laid down by this Court by the competent authority at any E
stage in any court proceedings and hence he has a right to
raise such plea at any time and in any proceedings in any court
for determination of this question notwithstanding the fact that
he has suffered conviction from the regular courts.
     12. In reply, learned counsel opposed the prayer             F
contending that no case is made out for grant of any relief and
hence this petition should be dismissed.
       13. Having heard learned counsel for the parties and on
perusal of the record of the case, we find force in the           G
submission urged by the learned senior counsel for the
petitioner.
     14. Indeed, even the learned counsel appearing for the
respondent could not dispute the legal position arising in the
                                                                  H
152         SUPREME COURT REPORTS                  [2015] 15S.C.R.


A     case in petitioner's favour on the basis of law laid down in the
      case Hari Ram (supra) in the context of the facts alleged in
      the writ petition which remained uncontroverted on material
      issues.
        15. In our considered opinion, the facts of the case in
B hand and the one involved in the case of Hari Ram (supra)
  are more or less similar. So far as the facts of Hari Ram's
  case (supra) are concerned, we find that the offence was
  committed on 30.11.1998 and the accused therein was found
  between the age group of 16 to 17 years i.e. below 18 years.
C On these facts, this Court exa~mined the issue in the light of the
  proviso and explanation appended to Section 20 of the Juvenile
  Justice Act, 2000 by Amendment Act 33 of 2006 and laid down
  the following principles of law for deciding the issue of juvenility
  in every case.
D
            16. It is aP,posite to reproduce Paras 38 and 39, 72 and
      73 of Hari Ram's Case (supra) which are given as under:
            "38. The same is, accordingly, reproduced
            hereinbelow:
 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 in that area, shall
 F            be continued in that court a~ if this Act had not
              been passed and if the court finds that the
              juvenile has committed an offence, it shall record
              such finding and instead of passing any
              sentence in respect of the juvenile, forward the
 G            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
MOHD. FEROZ KHAN @FEROZ v. STATE OF A. P.             153
       [ABHAY MANOHAR SAPRE, J.]

   Provided that the Board may, for any adequate      A
   and special reason to be mentioned in the order,
   review the case and pass appropriate order in
   the interest of such juvenile.
   Explanation.-ln all pending cases including trial,
   revision, appeal or any other criminal 8
   proceedings in respect of a juvenile in conflict
   with law, in any court, the determination of
   juvenility of such a juvenile shall be in terms of
   tlause (/)of Section 2, even ifthe juvenile ceases
   to be so on or before the date of commencement C
   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."
                                                      D
   The proviso and the Explanation to Section 20
   were added by Amendment Act 33 of 2006, to set
   at rest any doubts that may have arisen with
   regard to the applicability ofthe Juvenile Justice
   Act, 2000, to cases pending on 1-4-2001, where E
   a juvenile, who was below 18 years at the time of
   commission of the offence, was involved.
 39. The Explanation which was added in 2006,
 makes it very clear that in all pending cases, which
 would include not only trials but even subsequent F
 proceedings by way of revision or appeal, the
 determination of juvenility of a juvenile would be in
 terms of clause (/) of Section 2, even if the juvenile
 ceased to be a juvenile on or before 1-4-2001, when
 the Juvenile Justice Act, 2000, came into force, and G
 the provisions of the Act would apply as if the said
 provision had been in force for all purposes and
 for all material times when the alleged offence was
 committed. In fact, Section 20 enables the court to
 consider and determine the juvenility of a person H
154       SUPREME COURT REPORTS                   [2015] 15S.C.R.


A        even after conviction by the regular court and also
         empowers the court, while maintaining the
         conviction, to set aside the sentence imposed and
         forward the case to the Juvenile Justice Board
         concerned for passing sentence in accordance with
B        the provisions of the Juvenile Justice Act, 2000.
          72. We, therefore, allow the appeal and set aside
          the order passed by the High Court and in keeping
          with the provisions of Sections 2(k), 2(/), 7-A and 20
          of the Juvenile Justice Act, 2000 and Rules 12 and
c         98 of the Juvenile Justice Rules, 2007, hold that
          since the appellant was below 18 years of age at
          the time of commission of the offence the
          provisions of the said Act would apply in his case
          in full force.
D
          73. The matter is accordingly remitted to the
          Juvenile Justice Board, Ajmer, for disposal in
          accordance with law, within three months from the
          date of receipt of a copy of this order, having regard
          to the fact that the offence is alleged to have been
E
          committed more than ten years ago. If, however, the
          appellant has been in detention for a period which
          is more than the maximum period for which a
          juvenile may be confined to a special home, the
          Board shall release the appellant from custody
 F
          forthwith."
        17. As mentioned above, we find no distinguishing
  features in the facts of the case in hand and the one involved
  in the case of Hari Ram (supra) so as to deny the relief to the
G petitioner herein because in this case also we find that the
  offence was committed on 02.08.1999 and the petitioner was
  found between the age group of 16-17 years i.e. below 18
  years on the date of commission of the offence. That apart,
  the question of juvenility of petitioner was not gone into till date
H in accordance with law by any Court.
    MOHD. FEROZ KHAN@ FEROZ v. STATE OF A. P.                       155
           [ABHAY MANOHAR SAPRE, J.]

       18. In the light of these facts emerging from the record of A
the case which could not be controverted by the learned counsel
for the respondent, we are of the considered view that the
petitioner is entitled to claim the same relief as was granted in
the case of Hari Ram (supra) by this Court.
      19. In view of the foregoing discussion, the petition         B
succeeds and is allowed. The impugned order in so far as it
relates to the petitioner is set aside. The matter is remitted to
the concerned Juvenile Justice Board exercising jurisdiction
for disposal of the petitioner's case in accordance with law
within three months from the date of receipt of copy of this        C
order.
     20. However, if the petitioner has been in detention for a
period, which is more than the maximum period for which a
juvenile may be confined to a special home, the Board shall
                                                                    0
release the petitioner from custody forthwith.
Devika Gujral                                     Appeal allowed.