REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     2163               OF 2010 (Arising out of S.L.P. (Crl.) No.3884 of 2010)

BHIM @ UTTAM GHOSH — APPELLANT  

VERSUS

STATE OF WEST BENGAL — RESPONDENT  

O R D E R  

D.K. JAIN, J.:

Leave granted.

2. Challenge in this appeal, by special leave, is to the judgment, dated 1st  

December 2009, delivered by the High 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 us only on the  

question of applicability of the provisions of the Juvenile Justice (Care  

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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 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 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.

4. Aggrieved by the order of conviction, the appellant carried the matter  

in appeal before the High Court. As afore-stated, the High Court, vide  

the impugned judgment has dismissed the appeal.

5. Hence, the present appeal.  

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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  dated 9th November  2010, has  

been filed by a Sub-Inspector of Police, Birbhum (West 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  

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 the age of the  

accused, who claims to be a juvenile/child would 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 & Anr.1 and Ravinder Singh Gorkhi   

Vs. State of U.P.2)  

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  

1 (2005) 3 SCC 551 2 (2006) 5 SCC 584

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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” 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  

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 governed by the provisions of the 2000 Act.

10. The decision  in  Pratap Singh’s  case  (supra) led to  substitution  of  

Section  2(l);  the  insertion  of  Section  7A  and  proviso  and  the  

Explanation to Section 20 of the 2000 Act by 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.

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

as follows:

“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 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 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.”

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  

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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   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 committed.

13. Clause  (l)  of  Section 2 of  the  2000 Act  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 2000 Act.

14. At this juncture, it will be profitable to take note of 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 juvenility is raised before any court or a court  

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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 recognised 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.”

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 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 of Section  

2(k) of the said Act, which defines “juvenile” or “child” to mean a  

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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 2(k), 2(l), 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 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 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(l) of the amended 2000 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  

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for offence punishable under Section 307 IPC, correctness whereof is  

not put in issue before us.  The appellant is now aged about 42 years.  

Keeping his  age in view, we feel that it would not be conducive for  

the 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.

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.K. JAIN, J.)  

                             .……………………………………..            (H.L. DATTU, J.)

NEW DELHI; NOVEMBER 12, 2010

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