Orissa High Court
Biju @ Tapan Kumar Behera vs State Of Odisha on 4 September, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.230 of 2001
AFR In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 15.10.2001 passed by the learned Sessions
Judge, Keonjhar in S.T. Case No.20 of 2001.
----
Biju @ Tapan Kumar Behera .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. G. N. Parida,
(Advocate)
For Respondent - Mr. P. K. Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 13.08.2024 :: Date of Judgment:04.09.2024
The Appellant, by filing this Appeal, has assailed the judgment of
conviction and the order of sentence dated 15.10.2001 passed by the
learned Sessions Judge, Keonjhar in S.T. Case No.20 of 2001.
The Appellant (accused) has been convicted for commission of
offence under section 302/201 of the Indian Penal Code, 1860 (in short,
‘IPC’) and he has been sentenced to undergo imprisonment for life.
CRA No.230 of 2001 Page 1 of 24
2. Prosecution case is that the accused and Sridhar (deceased) are the
residents of village Belabahali. The father of the accused and the
deceased have their grocery business. The retailors used to take the
grocery articles on credit from the father of the accused as well as the
deceased for onward sale in the weekly market. The accused and the
deceased being friends, used to go to collect the dues of their father from
those retailors. This was the practice which they were performing for
quite some time.
On 21.09.2000, it was around 5.30 to 6 am, the accused and the
deceased left the village riding their cycles to collect dues from the
creditors at different villages. The accused returned around 9 am. But
Sridhara (deceased) did not. When the parents and relations of Sridhara
did not find him coming to the village, they went for search. The
accused had been asked regarding the whereabouts of Sridhara
(deceased). He then gave prevaricating statements. The agnatic brother
of Sridhara namely, Niranjan (Informant-P.W.14) had gone to the house
of the accused to enquire. The father of the accused was not there and he
arrived sometime thereafter. Being asked by the villagers, the accused
went on giving pre-varicating statements to the effect that Sridhara had
jumped into the river Kusei; that he had gone somewhere in the bus. The
father of the accused then told that the accused be taken to the police
station where he would disclose the truth. P.W.14 and the father of the
accused then came to the Ghasipura Police Station and similarly,
another namely, Surendra (P.W.17) Pradeep and the accused also came.
On the way, at Salapada crossing, accused requested all to stop to
scooter giving out that he would disclose the truth. It is stated that the
accused then expressed that he had committed the murder of Sridhara
CRA No.230 of 2001 Page 2 of 24
beneath Gudiaghara Bridge by smashing his head by means of a stone.
He then stated to have concealed the dead body beneath the water. But
thereafter, when accused was being taken away by Niranjan in the
scooter, he jumped from the same and both sustained injuries. The dead
body of Sridhara was recovered from beneath the water and it was
noticed that he has sustained injuries on his face and head. The
informations as the above being given in writing to the Officer-in-
Charge, Ramachandrapur Police Station, the same was treated as FIR
and upon registration of the case, investigation was commenced.
On completion of the investigation, the I.O (P.W.29) submitted
the Final Form placing the accused to face the Trial for commission of
offence under section 302/201 of the IPC.
3. Learned SDJM, Anandapur receiving the Final Form as above,
took cognizance of the offence and after observing the formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing charge against the said offence against the
accused.
4. In the Trial, the prosecution in total has examined twenty nine
(29) witnesses and have proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.21.
5. The defence being called upon has not led any evidence in
support of his plea of denial and false implication.
6. The prosecution case is based on circumstantial evidence. The
Trial Court on detail examination of the evidence on record and their
evaluation has finally held that the prosecution has been able to establish
CRA No.230 of 2001 Page 3 of 24
the incriminating circumstances and those being joined together make
the chain of events complete in such a manner that it excludes all the
hypothesis other than the guilt of the accused. Having said so, the Trial
Court has convicted the accused for the offence under section 302 of the
IPC as to have intentionally caused the death of Sridhara (deceased) and
sentenced him as aforestated.
7. Mr. G. N. Parida, learned counsel on behalf of Mr. S. P. Mishra,
learned Senior Counsel for the Appellant (accused) from the beginning
instead of advancing the submission in impeaching the finding of guilt
against the accused as has been returned by the Trial Court confined his
submission that here is a case where despite upholding the conviction of
the accused, the sentence of life imprisonment has to be set aside as it
concerns with the issue of juvenility of the accused at the time of
commission of the offences.
He submitted that the incident as per the prosecution case took
place on 21.09.2000 when the Juvenile Justice Act, 1986 (hereinafter,
referred to as “JJ Act”) was in force and the Juvenile Justice (Care and
Protection of Children) Act, 2000 (henceforth noted as “JJ(CPC) Act”)
came into force with effect from 01.04.2001. He then submitted that the
position of law has been well settled that the ‘juvenility’ of the offender
is to be determined as on the date of the commission of the offence.
Inviting our attention to the age of the accused as per the prosecution
case that he was 17 (seventeen) at the relevant time, he next drew our
attention to the provision contained in section 2(h) of the JJ Act which
defined “juvenile” and 2(l) of the JJ(CPC) Act which defines “Juvenile
in conflict with law. Referring to the provision contained in section 20
CRA No.230 of 2001 Page 4 of 24
of the JJ(CPC) Act, he contended that since the JJ(CPC) Act came into
force when the trial was in progress; the Trial Court even after holding
the accused guilty for commission of the offence under section 302 of
the IPC was under legal obligation to pass appropriate order/directions
under section 15 of the JJ(CPC) Act or to remit the matter to the
concerned Juvenile Justice Board for dealing with the matter in
accordance with the provisions of the JJ(CPC) Act.
He next submitted that accused is now about 40 years old and he
is earning his livelihood and maintaining his family by working as a
daily labour when no such report as regards his adverse conduct and
dealing in the locality is forthcoming and it is also not stated that he
during all these period has indulged in any criminal activity at any point
of time. He then relying upon the decision in case of Satya Deo@
Bhoorey -v- State of Uttar Pradesh (2020) 10 SCC 555 having
submitted that the order of sentence of life imprisonment cannot be
sustained contended that at this distance of time and in the prevailing
circumstances concerning the accused and the surroundings and taking
note of the fact that the accused has been suffering from the mental
agony of a criminal trial for such a long period of about 24 years and
when he has also remained in custody during trial as also after
conclusion of the trial till his release on bail by order of this Court in the
Appeal, it would be against the interest of justice to remit the matter to
the jurisdiction of the Juvenile Justice Board for passing appropriate
order/directions under section 15 of the JJ(CPC) Act and that would
sever no useful purpose.
CRA No.230 of 2001 Page 5 of 24
8. Mr. P. K. Mohanty, learned counsel for the State-Respondent
submitted that the accused was more than 16 years of age when he
committed the offence and, therefore, rightly the charge was framed by
the Trial Court as he was not falling within the definition of the
“juvenile” as defined in the JJ Act. He further submitted that after the
commencement of the trial when the it was is in progress, the Act of 2000
having come into force that being not placed before the Trial Court for
the needful in consonance with the provision of section 20 of the JJ(CPC)
Act, the Trial Court having held the accused guilty for commission of
offence under section 302/201 of the IPC has awarded the sentence of
imprisonment for life. He also submitted that the accused is now age
around 40 years and no instruction has been received by him that he has
indulged in any criminal activity during all these long period or as regards
any adverse conduct in the locality during the period.
9. Keeping in view the submissions made, we have perused the
record of the Trial Court as well as the Court which committed the case.
10. It is undisputed that the accused was more than 16 years of age as
on the date of commission of the offence. So he has been rightly placed
under regular trial as he was not a ‘juvenile’ as defined in the JJ Act.
When the Trial Court framed the charge on 02.03.2001 since the
JJ(CPC) Act had by then not come into force, the trial has rightly
commenced. During progress of the trial, the JJ(CPC) Act came into
force with effect from 01.04.2001.
Section 20 of the JJ(CPC) Act which takes care in respect of
pending cases reads as under:-
CRA No.230 of 2001 Page 6 of 24
“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 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:
Provided that the Board may, for any adequate and special reason
to be mentioned in that 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 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 ceased 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 bene in force, for all
purposes and at all material times when the alleged offence was
committed.”
11. Section 20 of the JJ(CPC) Act is a special provision with respect
to pending cases and begins with a limited non obstante or overriding
clause; notwithstanding anything contained in the said Act. Legislative
intent is clear and expressly stated that all proceedings in respect of a
CRA No.230 of 2001 Page 7 of 24
“juvenile” pending in any court on the date on which the JJ (CPC) Act
came into force shall continue before that court as if JJ(CPC) Act had
not been passed. Though the proceedings are to continue before the
Court, the section states that if the court comes to a finding that a
“juvenile” has committed the offence, it shall record the finding but
instead of passing an order of sentence, forward the juvenile to the
Juvenile Justice Board which shall then pass orders in accordance with
the provisions of the JJ(CPC) Act, as if the Board itself had conducted
an inquiry and was satisfied that the juvenile had committed the offence.
The proviso, however, stated that the Board, for any adequate and
special reasons, can review the case and pass appropriate order in the
interest of the juvenile.
12. The explanation added to section 20 vide Amendment Act 33 of
2006, which again is of significant importance, it states that the Court
where ‘the proceedings” are pending “at any stage” shall determine the
question of juvenility of the accused. The expression “all pending
cased” includes not only trial but even subsequent proceedings by way
of appeal, revision, etc. or any other criminal proceedings. Lastly, the
JJ(CPC) Act applies even to cases where the accused was a juvenile on
the date of commission of the offence, but had ceased to be a juvenile on
or before the date of commission of the JJ(CPC) Act. Even in such
cases, provisions of the JJ(CPC) Act are to apply as if these provisions
were in force for all purposes and at all material time when the offence
was committed.
13. Thus, in respect of pending cases, section 20 of the JJ(CPC) Act
authoritatively commands that the Court must at any stage, even post the
CRA No.230 of 2001 Page 8 of 24
judgment by the trial court when the matter is pending in appeal,
revision or otherwise, consider and decide upon the question of
juvenility. Juvenility is determined by the age on the date of commission
of the offence. The factum that the juvenile was an adult on the date of
enforcement of the 2000 Act or subsequently had attained adulthood
would not matter. If the accused was juvenile, the court would, even
when maintaining conviction, send the case to the Board to issue
direction and order in accordance with the provisions of the 2000 Act.
14. By Amendment Act 33 of 2006, section 7-A was inserted in the
2000 Act setting out the procedure to be followed by the Court to
determine the claim of juvenility. Section 7-A, which came into effect
on 22.08.2006, reads:
“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 persons was a juvenile
on the date of commission of the offence, the court shall make an
enquiry, 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.
CRA No.230 of 2001 Page 9 of 24
(2) If the 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 order, and the sentence if
any, passed by a court shall be deemed to have no effect.”
15. The proviso of Section 7-A is important for our purpose as it
states that the claim of juvenility may be raised before “any Court” “at
any stage”, even after the final disposal of the case. When such claim is
made, it shall be determined in terms of the provisions of the JJ(CPC)
Act and the Rules framed thereunder, even when the accused had ceased
to be a juvenile on or before commencement of the JJ(CPC) Act. Thus,
it would not matter if the accused, though a juvenile on the date of
commission of the offence, had become an adult before or after the date
of commencement of the JJ(CPC) Act on 01.04.2001. He would be
entitled to benefit of the JJ(CPC) Act.
16. Section 64 of the JJ(CPC) Act was also amended by Act 33 of
2006 by incorporating a proviso and Explanation and by replacing the
words “may direct” with the words “shall direct” in the main provision.
Post the amendment, Section 64 reads as under:
“64.Juvenile in conflict with law undergoing sentence at
commencement of this Act.- In any area in which this Act is brought
into force, the State Government shall direct that a juvenile in conflict
with law who is undergoing any sentence of imprisonment at the
commencement of this Act, shall, in lieu of undergoing such sentence,
be sent to a special home or be kept in fit institution in such manner as
the State Government thinks fit for the remainder of the period of the
sentence; and the provisions of this Act shall apply to the juvenile as ifCRA No.230 of 2001 Page 10 of 24
he had been ordered by the Board to be sent to such special home or
institution or, as the case may be, ordered to be kept under protective
care under sub-section (2) of section 16 of this Act:
Provided that the State Government, or as the case may be the
Board, may, for any adequate and special reason to be recorded in
writing, review the case of a juvenile in conflict with law undergoing a
sentence of imprisonment, who has ceased to be so on or before the
commencement of this Act, and pass appropriate order in the interest of
such juvenile.
Explanation.- In all cases where a juvenile in conflict with law is
undergoing a sentence of imprisonment at any stage on the date of
commencement of this act, his case including the issue of juvenility,
shall be deemed to be decided in terms of cluse (1) of Section 2 and the
other provisions contained in this act and the Rules made thereunder,
irrespective of the fact that he ceases to be a juvenile or on before such
date and accordingly, he shall be sent to the special home or a fit
institution, as the case case may be, for the remainder of the period of
the sentence but such sentence shall not in any case exceed the
maximum period provided in section 15 of this Act.”
17. The above substitution of the words “may direct” with “shall
direct” in the main provision is to clarify that the provision is mandatory
and not directory. Section 64 had to be read harmoniously with the
newly added proviso and Explanation and also other amendments made
vide Amendment Act 33 of 2006 in section 20 and by way of inserting
Section 7-A in the JJ(CPC) Act. The main provision states that where a
Juvenile in Conflict with law is undergoing any sentence of
CRA No.230 of 2001 Page 11 of 24
imprisonment at the commencement of the JJ(CPC) Act, he shall, in lieu
of undergoing in such manner as the State Government think fit for the
remainder of the period of sentence.
18. Further, the provisions of the JJ(CPC) Act are to apply as if the
juvenile had been ordered by the Board to be sent to the special home or
institution and ordered to be kept under protective care under sub
section (2) of section 16 of the Act. The proviso states that the State
Government or the Board, for any adequate and special reasons to be
recorded in writing, review the case of the juvenile in conflict with law
who is undergoing sentence of imprisonment and who had cease to be a
juvenile on or before the commencement of JJ(CPC) Act and pass
appropriate orders. However, it is the explanation which is of extreme
significance as it states that in all cases where a juvenile in conflict with
law is undergoing a sentence of imprisonment on the date of
commencement of the JJ(CPC) Act, the juvenile’s case including the
issue of juvenility, shall be deemed to be decided in terms of clause (1)
of section 2 and other provisions and Rules made under the JJ(CPC) Act
irrespective of the fact that the juvenile had ceased to be a juvenile. Such
juvenile shall be sent to a special home or fit institution for the
remainder period of his sentence but such sentence shall not exceed the
maximum period provided in section 15 of the JJ(CPC) Act. The statute
overrules and modifies the sentence awarded, even in decided cases.
19. The Hon’ble Apex Court in Dharambir-versus-State (NCT of
Delhi) (2010) 5 SCC 344 had analyzed the scheme and application of
the JJ(CPC) Act to the accused who were below the age of eighteen
CRA No.230 of 2001 Page 12 of 24
years on the date of commission of offence which was committed prior
to the enactment of the JJ(CPC) Act, to opine and hold:
“Proviso to sub-section (1) of Section
7A contemplates that a claim of juvenility can
be raised before any court and has to be
recognized at any stage even after disposal of
the case and such claim is required to be
determined in terms of the provisions contained
in the Act of 2000 and the rules framed
thereunder, even if the juvenile has ceased to be
so on or before the date of the commencement
of the Act of 2000. The effect of the proviso is
that a juvenile who had not completed eighteen
years of age on the date of commission of the
offence would also be entitled to the benefit of
the Act of 2000 as if the provisions of Section
2(k) of the said Act, which defines “juvenile” or
“child” to mean a person who has not
completed eighteenth year of age, had always
been in existence even during the operation of
the 1986 Act. It is, thus, manifest from a
conjoint reading of Sections 2(k), 2(l), 7A, 20
and 49 of the Act of 2000, read with Rules 12
and 98 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 that all
persons who were below the age of eighteen
years on the date of commission of the offence
even prior to 1st April, 2001 would be treated
as juveniles even if the claim of juvenility is
raised after they have attained the age of
eighteen years on or before the date of
the commencement of the Act of 2000 and
were undergoing sentences upon being
convicted.
In the view we have taken, we are fortified by
the dictum of this Court in a recent decision
in Hari Ram Vs. State of Rajasthan &
Another”.
CRA No.230 of 2001 Page 13 of 24
20. In Mumtaz-versus-State of Uttar Pradesh (2016) 11 SCC 786,
while referring to several earlier decisions, the Apex Court dealt with
the effect of Section 20 of the 2000 Act and its interplay with the 1986
Act, to elucidate:
“18.The effect of Section 20 of the 2000 Act was
considered in Pratap Singh v. State of Jharkhand and
another (2005) 3 SCC 551 and it was stated as under:
“31. Section 20 of the Act as quoted above deals
with the special provision in respect of pending
cases and begins with a non obstante clause.
The sentence “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 came into force”
has great significance. The proceedings in
respect of a juvenile pending in any court
referred to in Section 20 of the Act are relatable
to proceedings initiated before the 2000 Act
came into force and which are pending when
the 2000 Act came into force. The term “any
court” would include even ordinary criminal
courts. If the person was a “juvenile” under the
1986 Act the proceedings would not be pending
in criminal courts. They would be pending in
criminal courts only if the boy had crossed 16
years or the girl had crossed 18 years. This
shows that Section 20 refers to cases where a
person had ceased to be a juvenile under the
1986 Act but had not yet crossed the age of 18
years then the pending case shall continue in
that court as if the 2000 Act has 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, shall forward the
juvenile to the Board which shall pass orders in
respect of that juvenile.”
CRA No.230 of 2001 Page 14 of 24
21. In Bijender Singh v. State of Haryana and another(2005) 3 SCC
685, the legal position as regards Section 20 of the JJ(CPC) Act was
stated in following words:
“8. One of the basic distinctions between the 1986
Act and the 2000 Act relates to the age of males and
females. Under the 1986 Act, a juvenile means a male
juvenile who has not attained the age of 16 years, and a
female juvenile who has not attained the age of 18
years. In the 2000 Act, the distinction between male
and female juveniles on the basis of age has not been
maintained. The age-limit is 18 years for both males
and females.
9. A person above 16 years in terms of the 1986 Act
was not a juvenile. In that view of the matter the
question whether a person above 16 years becomes
“juvenile” within the purview of the 2000 Act must be
answered having regard to the object and purport
thereof.
10. In terms of the 1986 Act, a person who was not
juvenile could be tried in any court. Section 20 of the
2000 Act takes care of such a situation stating that
despite the same the trial shall continue in that court as
if that Act has not been passed and in the event, he is
found to be guilty of commission of an offence, a
finding to that effect shall be recorded in the judgment
of conviction, if any, but instead of passing any
sentence in relation to the juvenile, he would be
forwarded to the Juvenile Justice Board (in short “the
Board”) which shall pass orders in accordance with the
provisions of the Act as if it has been satisfied on
inquiry that a juvenile has committed the offence. A
legal fiction has, thus, been created in the said
provision. A legal fiction as is well known must be
given its full effect although it has its limitations.
…………
11. xxxxxx xxxxxxxx xxxxxxx
12. Thus, by reason of legal fiction, a person, although
not a juvenile, has to be treated to be one by the Board
for the purpose of sentencing, which takes care of a
situation that the person although not a juvenile in
terms of the 1986 Act but still would be treated as such
under the 2000 Act for the said limited purpose.”
CRA No.230 of 2001 Page 15 of 24
22. In Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344 the
determination of juvenility even after conviction was one of the issues
and it was stated:
“11. It is plain from the language of the
Explanation to Section 20 that in all pending
cases, which would include not only trials but
even subsequent proceedings by way of
revision or appeal, etc., the determination of
juvenility of a juvenile has to be in terms of
clause (l) of Section 2, even if the juvenile
ceases to be a juvenile on or before 1-4-2001,
when the Act of 2000 came into force, and the
provisions of the Act would apply as if the said
provision had been in force for all purposes and
for all material times when the alleged offence
was committed.
12. Clause (l) of Section 2 of the Act of 2000
provides that “juvenile in conflict with law”
means a “juvenile” who is alleged to have
committed an offence and has not completed
eighteenth year of age as on the date of
commission of such offence. Section 20 also
enables the court 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 concerned for
passing sentence in accordance with the
provisions of the Act of 2000.”
23. Similarly in Kalu-versus-State of Haryana (2012) SCC 34 the
Court summed up as under:
“21. Section 20 makes a special provision in
respect of pending cases. It states that
notwithstanding anything contained in
the Juvenile Act, all proceedings in respect of aCRA No.230 of 2001 Page 16 of 24
juvenile pending in any court in any area on the
date on which the Juvenile Act comes into force
in that area shall be continued in that court as if
the Juvenile 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 juvenile to the Board
which shall pass orders in respect of that
juvenile in accordance with the provisions of
the Juvenile Act as if it had been satisfied on
inquiry under the Juvenile Act that the juvenile
has committed the offence. The Explanation
to Section 20 makes it clear that in all pending
cases, which would include not only trials but
even subsequent proceedings by way of
revision or appeal, the determination of
juvenility of a juvenile would be in terms of
clause (l) of Section 2, even if the juvenile
ceased to be a juvenile on or before 1-4-2001,
when the Juvenile Act came into force, and the
provisions of the Juvenile 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.”
24. This position of law and principle in Mumtaz case (supra) was
affirmed by the Court for the first time in Hari Ram-versus- State of
Rajasthan (2009) 13 SCC 211 in the following words:
“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 proceedings by way of revision or
appeal, the determination of juvenility of a
juvenile would be in terms of Clause (l)
of Section 2, even if the juvenile ceased to be a
juvenile on or before 1st April, 2001, when
the Juvenile Justice Act, 2000, came into force, and
the provisions of the Act would apply as if theCRA No.230 of 2001 Page 17 of 24
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 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 the
provisions of the Juvenile Justice Act, 2000.”
25. In the case at hand, indisputably, the accused was less than 18
years of age as on the date of commission of offence on 21.09.2000, he
is thus entitled to be treated as a juvenile and be given the benefits as per
the JJ(CPC) Act.
26. It now brings us to the question whether the Juvenile Justice (Care
and Protection of Children) Act, 2015 would be applicable as the Act of
2015 vide sub-section (1) of Section 111 repeals the JJ(CPC) Act, 2000,
albeit sub section (2) of section 111 states that notwithstanding this
repeal anything done or any action taken under the Act of 2000 shall be
deemed to have been done or taken under the corresponding provisions
of the Act of 2015.
Section 69, the “Repeal and Saving Clause” of the Act of 2000 is
identical as sub section (1) thereof had repealed the Act of JJ Act, 1986
and sub section (2) provides that notwithstanding such repeal anything
done or any action taken under the JJ Act, 1986 shall be deemed to have
been done or taken under the corresponding provisions of the JJ(CPC)
Act, 2000.
CRA No.230 of 2001 Page 18 of 24
27. However, what is important and relevant for us is section 25 of
the JJ(CPC) Act, 2015 which, as per the headnote to that section,
incorporates “Special provision in respect of pending cases” and reads:
“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 been
enacted”.
28. Section 25 of the JJ(CPC) Act, 2015 is a non obstante clause
which applied to 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 the said Act, that is, 31.12.2015. It states that the
pending proceedings shall be continued in that Board or court as if the
2015 Act had not been passed.
In Akhtari Bi V. State of M.P (2001) 4 SCC 355, it was observed
that the right to appeal being a statutory right, the trial court’s verdict
does not attain finality during the pendency of the appeal and for that
purpose the trial is deemed to be continuing despite conviction. Thus,
the use of the word “any” before the Board or court in Section 25 of the
JJ(CPC) Act, 2015 would mean and include any court including the
appellate court or a court before which the revision petition is pending.
This is also apparent from the use of the words “a child alleged or found
to be in conflict with law”. The word “found” is used in past tense and
would apply in cases where an order/judgment has been passed. The
CRA No.230 of 2001 Page 19 of 24
word “alleged” would refer to those proceedings where no final order
has been passed and the matter is sub-judice. Further, section 25 of the
JJ(CPC) Act, 2015 applied to proceedings before the Board or the court
and as noticed above, it would include any court, including the appellate
court or the court where the revision petition is pending.
29. In the context of Section 25, the expression “Court” is not
restricted to mean a civil court which has the jurisdiction in the matter of
“adoption” and “guardianship” in terms of clause (23) of Section 2 of
the JJ(CPC) Act, 2015. The definition clause is application unless the
context otherwise requires. In case of section 25, the legislature is
obviously not referring to a civil court as the section deals with pending
proceedings in respect of a child alleged or found to be in conflict with
law, which cannot be proceedings pending before a civil court. since the
2015 Act protects and affirms the application of the JJ(CPC) Act, 2000
to all pending proceedings, we do not read that the legislative intent of
the 2015 Act is to the contrary, that is, to apply the JJ(CPC) Act, 2015 to
all pending proceedings.
30. Turning attention to section 6 of the General Clauses Act, 1897
which provides the consequence of “repeal” of an enactment; it reads:-
“6.Effect of repeal-where this Act, or any Central Act or
Regulation made after the commencement of this Act, repeals any
enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not:
xxxxxxx xxxxxxxxxx xxxxxxxxx
CRA No.230 of 2001 Page 20 of 24
(c) affect any right, privilege, obligation or liability acquired, accrued or
incurred under any enactment so repeated:”
31. Consequently, in light of Section 6 of the General Clauses Act
read with Section 25 of the JJ(CPC) Act, 2015, an accused cannot be
denied his right to be treated as a juvenile when he was less than
eighteen years of age at the time of commission of the offence, a right
which he acquired and has fructified under the JJ(CPC) Act, 2000 even
if the offence was committed prior to enforcement of the JJ(CPC) Act,
2000 on 1.4.2001 in terms of section 25 of the JJ(CPC) Act, 2015, the
JJ(CPC) Act, 2000 would continue to apply and govern the proceedings
which were pending when the JJ(CPC) Act, 2015 was enforced. In the
present case, thus it is not required to examine and decide the question
where the JJ(CPC) Act, 2000 or the JJ(CPC) Act, 2015 would apply
when the offence was committed before the enactment of the JJ(CPC)
Act, 2015 but the charge-sheet was filed after enactment of the JJ(CPC)
Act, 2015. The answer would require examination of clause (1) of
Article 20 of the Constitution and several other aspects as the JJ(CPC)
Act, 2015 provide an entirely different regime in respect of Children in
Conflict with law and the procedure to be followed in such cases.
32. The decision of the Apex Court in Gaurav Kumar-versus-State of
Haryana (2019) 4 SCC 549 which was relied upon by the learned
counsel for the State is of no avail as this decision is on interpretation
and application of Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007, for the procedure to be followed in
determination of age. The procedure adopted by the learned District and
Sessions Judge is not challenged and questioned before us. We would
CRA No.230 of 2001 Page 21 of 24
again record that Satya Deo was less than 18 years of age on the date of
commission of offence and this remains undisputed and challenged.
33. Satya Deo has under gone incarceration for more than 2 years
thus far. In Mumtaz (supra) dealing with the quantum and nature of
punishment which should be given to a person who was a juvenile on
the date of commission of offence, this Court, while placing reliance
upon an earlier decision in Jitendra Singh-versus-State of Uttar
Pradesh (2013) 11 SCC 193 had held:
“22. It is thus well settled that in terms of Section
20 of the 2000 Act, 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 2000 Act. What kind
of order could be passed in matter where claim of
juvenility came to be accepted in a situation similar
to the present case, was dealt with by this Court in
Jitendra Sing-versus-State of Uttar Pradesh
(Supra) in the following terms:
“32.A perusal of the “punishments” provided for
under the Juvenile Justice Act, 1986 indicate that
given the nature of the offence committed by the
Appellant, advising or admonishing him is hardly a
“punishment” that can be awarded since it is not at
all commensurate with the gravity of the crime.
Similarly, considering his age of about 40 years, it
is completely illusory to expect the appellant to be
released on probation of good conduct, to be
placed under the care of any parent, guardian or fit
person. For the same reason, the appellant cannot
be released on probation of good conduct underCRA No.230 of 2001 Page 22 of 24
the care of a fit institution nor can he be sent to a
special home under section 10 of the Juvenile
Justice Act, 1986 which is intended to be for the
rehabilitation and reformation of delinquent
juveniles. The only realistic punishment that can
possibly be awarded to the appellant on the facts of
this case is to require him to pay a fine under
clause (e) of Section 21(1) of the Juvenile Justice
Act, 1986.”
34. Regard being had to the ratio culled out from the decisions
referred to above in stating the settled position of law; while upholding
the conviction of the accused, we hereby set aside the sentence of
imprisonment of life.
At this distance of time and considering his age to be around 40
years and when we too find that he has remained in custody during trial
and thereafter till he was released on bail by the order passed in this
Appeal, we do not feel it expedient in the interest of justice to remit the
matter to the jurisdiction of the Board for passing appropriate
order/directions under section 15 of the JJ(CPC) Act, 2000 as that in our
considered view would serve no useful purpose in the direction of
fulfilling/achieving the objective set forth under the discussed provisions
of the said Acts.
35. Before parting, we feel it proper to record our appreciation for the
able assistance rendered by Mr. G. N. Parida, learned counsel for the
Appellant in placing the positions of law holding the field and for his
hard work and endeavour.
CRA No.230 of 2001 Page 23 of 24
36. In the result the Appeal is accordingly allowed in part. The
judgment of conviction being confirmed, the order of sentence stands set
aside.
The bail bonds executed by the Appellant shall stands cancelled.
(V. Narasingh) (D. Dash),
Judge Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Sep-2024 12:26:02
CRA No.230 of 2001 Page 24 of 24