Published on: 19 January 2023 at 17:01 IST
In a very significant judgment which directly concerns and impacts juveniles, the Punjab and Haryana High Court has in a most learned, laudable, landmark and latest judgment titled ABC v State of Haryana in CRM-M-44156-2016 (O&M) that was delivered as recently as on January 16, 2023 has minced just no words to lay down that the plea of juvenility can be raised by a person even after the disposal of the case in terms of conviction and sentence, as per which plea, the authorities shall be bound to conduct an age determination inquir.
“It must be mentioned here that the Court was dealing with a petition that had been filed by a person who had committed an offence at the age of a little over 16 years in 1995,”.
“As per the Juvenile Justice Act, 1986, a male was considered to be a juvenile till the age of 16 years and female till the age of 18 years for males through the Juvenile Justice (Care and Protection of Children) Act, 2000.
At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Lalit Batra for a Division Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Harinder Singh Sidhu and himself sets the ball in motion by first and foremost putting forth in para 1 that, “This petition under Section 482 Cr.P.C. has been moved by petitioner seeking order for inquiry to determine his age as contemplated under Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as ‘Act, 2000’), for declaring him “juvenile in conflict with the law”, in case FIR No.277 dated 30.10.1995 under Sections 148, 302, 307, 323 and 364 IPC read with Section 149 IPC, registered at Police Station Punhana, District Mewat (Nuh).”
Needless to say, the Bench states in para 5 that, “The first and the foremost issue that arises for our consideration in this petition is in regard to the applicability of the relevant Act.”
Be it noted, the Bench observes in para 6 that, “In the aforesaid context, we must look into the relevant dates as follows:-
(a) The date of the incident is 30/31.10.1995. Thus, on the date of incident, Act, 1986, was in force. However, petitioner was arrested in this case on 21.10.2011 and his trial commenced on 04.11.2011 and eventually he was convicted and sentenced for the commission of above said offences on 08.09.2012 and 10.09.2012 respectively.
(b) The appeal preferred by the petitioner against his conviction and sentence passed by the Trial Court, was dismissed by this Court, vide judgment dated 01.10.2013. (c) No further appeal was preferred by the petitioner against judgment dated 01.10.2013.
Thus, during the course of trial and consequent conviction and sentence of petitioner and further during the pendency of appeal, Act, 2000, was in force.”
To put things in perspective, the Bench specifies in para 7 that, “On and with effect from 01.04.2001, Act, 2000, came into force which repealed the Act, 1986. As mentioned above, trial of petitioner commenced on 04.11.2011 and eventually he was convicted and sentenced by the Trial Court on 08.09.2012/10.09.2012 and further appeal preferred by the petitioner was dismissed by this Court on 01.10.2013, thus, at all material times, Act, 2000 was in force. Act, 2000, inter alia raised the age of juvenility from 16 to 18 years and in terms of Section 20 of Act, 2000, the determination of juvenility was required to be done in all pending matters in accordance with Section 2(l) of Act, 2000.”
It is worth mentioning that the Bench points out in para 13 that, “It is, thus, well settled that in terms of Section 20 of the Act, 2000, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the Court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the Court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the Act, 2000.”
To be sure, the Bench then hastens to add in para 15 that, “Section 7-A of the Act, 2000 as inserted by Act 33 of 2006 with effect from 22.08.2006 provided as follows:-
“7-A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section(1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.””
Most significantly, the Division Bench then minces just no words to hold in para 16 what constitutes the cornerstone of this notable judgment wherein it is postulated that, “Section 7-A of Act, 2000, provides that claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a person to be a juvenile on the date of commission of the offence, it is to 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,”.
“Even though the offence in this case may have been committed before the enactment of the Act, 2000, the petitioner is entitled to the benefit of juvenility under Section 7-A of the Act, 2000, if on inquiry, it is found that he was less than 18 years of age on the date of the alleged offence.”
Equally significant is what is then laid bare in para 22 wherein it is made clear that, “In view of Section 7-A of Act, 2000, applicable to petitioner, the plea of juvenility could be raised in any Court, at any stage, even after the final disposal of the case. In the case of petitioner, his appeal had also been dismissed by this Court on 01.10.2013,”.
“However, this Court is still obliged to consider the plea of juvenility taken by the petitioner and grant him appropriate relief. The fact that Act, 2000 has later been replaced by the Act, 2015, would make no difference.”
It would be worthwhile to mention that the Division Bench then states in para 26 that, “Petitioner has placed on record ‘School Leaving Certificate’ (Annexure P-1) issued on 19.05.1989, Certificate dated 11.03.2016 (Annexure P-2) issued by Gram Panchayat, Bisambera and photocopy of School Register (Annexure P-3),”
“wherein date of birth of petitioner has been recorded ‘06.07.1979’. Apart from above, petitioner has placed on record Grade Sheet-cum-Certificate dated 15.10.2014 (Annexure P-4) issued to him by National Institute of Open Schooling under Directorate of Adult Education, wherein his age has been recorded ‘35 years’ as stated by the learner. The incident which led to the conviction of petitioner took place in the intervening night of 30/31.10.1995,”.
“The petitioner claims that he was born on 06.07.1979 and as such on the date of incident, he was aged 16 years, 03 months and 25 days. Therefore, the material placed before this Court by the petitioner, prima facie, suggests that he was a ‘juvenile’ as defined in the Act, 2000, on the date of incident.”
As a corollary, the Division Bench then holds in para 27 that, “In view of above, instant petition is disposed of with the direction to Sessions Court, Mewat at Nuh to examine the claim of petitioner to juvenility in regard with law and submit a report to this Court within one month from the date of communication of this order. The Sessions Court shall be entitled to examine the authenticity and genuineness of the documents sought to be relied upon by the petitioner, considering that the documents do not appear to be contemporaneous. In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have the petitioner medically examined by taking an ossification test or any other modern recognized method of age determination.”
Finally, the Division Bench concludes by holding in para 32 that, “Notify this matter after a period of one month alongwith the report that may be received from the Sessions Court, Mewat at Nuh. The final order shall be passed after perusal of the report as received from the Sessions Court, Mewat at Nuh.”
To sum it up, the gist of this notable judgment by the Punjab and Haryana High Court is that plea of juvenility can be raised even after conviction and sentence. It thus merits no reiteration that all the Judges must always pay heed to what has been so very commendably held! No denying!
Sanjeev Sirohi, Advocate