REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRL.M.P. NO.6426 OF 2010 IN

CRIMINAL APPEAL NO.1305 OF 2009  

Mohan Mali & Anr.  .. Appellants Vs.

State of M.P.  .. Respondent

O R D E R

ALTAMAS KABIR, J.

1. This Appeal, which arises out of Special Leave  

Petition  (Crl.)  No.6276  of  2007,  is  directed  

against the judgment and order of the Indore Bench  

of the Madhya Pradesh High Court in Criminal Appeal  

No.898 of 1997, challenging the judgment and order

of conviction passed by the Addl. Sessions Judge,  

Dhar, in Sessions Trial No.366 of 1994.   By virtue  

of the said judgment, the Appellants, along with  

two other co-accused, were convicted under Sections  

302/34, 326/34 and 324/34 of Indian Penal Code and  

sentenced to life imprisonment along with fine of  

Rs.5,000/-  for  the  offence  under  Section  302/34  

IPC, three years’ rigorous imprisonment along with  

fine  of  Rs.500/-  for  the  offence  under  Section  

326/34  IPC  and  one  year’s  rigorous  imprisonment  

along with fine of Rs.500/- for the offence under  

Section 324/34 IPC along with further sentence in  

default of payment of fine.  It may be mentioned  

that the Special Leave Petition filed by one of the  

other  co-accused,  Bhagwan,  being  S.L.P.(Crl.)  

No.540 of 2008, was rejected on 16th April, 2008,  

when notice was issued on S.L.P.(Crl.) No.6276 of  

2007.

2

2. On  17th July,  2009,  when  the  Special  Leave  

Petition came up for admission, leave was granted  

and  the  hearing  of  the  appeal  was  expedited.  

However,  the  Appellants’  prayer  for  bail  was  

rejected at that stage.   When the matter was being  

heard for grant of leave, a plea of juvenility was  

made on behalf of Appellant No.2, Dhanna Lal, and  

this Court observed that in the event Dhanna Lal  

was able to provide proof of his claim that he was  

a juvenile on the date of the incident, he would be  

at liberty to apply afresh for grant of bail with  

such supporting evidence. Pursuant thereto, a fresh  

bail application was filed on behalf of Dhanna Lal  

on 27th January, 2010, annexing a copy of the Birth  

Certificate  of  Dhanna  Lal  issued  by  the  Chief  

Registrar (Birth and Death), Municipal Corporation,  

Dhar,  under  Section  12  of  the  Birth  and  Death  

Registration  Act,  1969,  maintained  by  the  

Corporation.  From the said certificate it appears  

3

that Dhanna Lal’s date of birth was recorded as 12th  

November, 1976 and was registered on 17th November,  

1976,  making  it  a  document  which  was  

contemporaneous  with  his  birth.  Upon  due  

verification,  it  was  confirmed  on  behalf  of  the  

State of Madhya Pradesh that the Appellant No.2,  

Dhanna  Lal,  was  a  juvenile  on  the  date  of  

commission  of  the  offence.   Appearing  for  the  

State,  Mr.  Pramod  Swarup,  Senior  Advocate,  very  

fairly submitted that Dhanna Lal was, therefore,  

entitled to the benefit of Section 7A read with  

Section  64  of  the  Juvenile  Justice  (Care  and  

Protection  of  Children)  Act,  2000,  hereinafter  

referred to as ‘the 2000 Act’.

3. Mr.  S.K.  Dubey,  learned  senior  counsel  

appearing for the Appellants, submitted that the  

Appellant  No.2,  Dhanna  Lal,  although  a  minor,  

within the meaning of the 2000 Act, had not only  

been tried along with other co-accused, who were  

4

not juveniles, in violation of Section 18 of the  

2000  Act,  but  had  also  undergone  9  years  of  

imprisonment, despite a maximum sentence of three  

years which could have been imposed on him under  

Section 15 of the 2000 Act.   

4. Among other questions, this question also fell  

for determination of this Court in the case of Hari  

Ram vs.  State of Rajasthan & Anr. [(2009) 13 SCC  

211].   This  Court  while  considering  the  various  

provisions of the 2000 Act, as amended in 2006,  

and, in particular, Section 7A which was introduced  

in the parent Act by the amending Act of 2006, held  

that Section 7A would have to be read in tandem  

with Section 20 of the 2000 Act and Rule 98 of the  

Juvenile Justice (Care and Protection of Children)  

Rules, 2007, hereinafter referred to as ‘the 2007  

Rules’,  which  deal  with  disposed  of  cases  of  

juveniles  in  conflict  with  law.   Since  all  the  

three provisions are of relevance to this Appeal,  

5

the  same  are  being  separately  dealt  with  

hereinbelow.

5. Section 7A of the 2000 Act, which provides the  

procedure to be followed when claim of juvenility  

is raised before any Court, 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 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  

6

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.”  

What is of relevance is the fact that Section  

7A of the 2000 Act allows a claim of juvenility to  

be raised before any Court at any stage even after  

final  disposal  of  the  case  and  speaks  of  the  

procedure which the Court is required to adopt when  

such claim of juvenility is raised.  

6. Section 20 of the 2000 Act specially provides  

for the procedure to be followed in pending cases  

and 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  

7

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  (1)  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.]”

What is to be noticed in the aforesaid Section  

is  that  it  makes  provision  for  continuance  of  

trials which had been commenced prior to the coming  

into operation of the 2000 Act.  While providing  

that the trial could continue before the Court, if  

8

it was found that the juvenile had committed an  

offence, the Court would be required to record such  

finding  and  instead  of  passing  any  sentence  in  

respect of the juvenile, forward the juvenile to  

the Juvenile Justice Board, which could then pass  

orders in respect of that juvenile in accordance  

with the provisions of the 2000 Act.   

7. Section  64  of  the  2000  Act  deals  with  a  

situation where a juvenile in conflict with law is  

already undergoing sentence at the commencement of  

the Act, and the same reads as follows :-

“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 if he had been ordered  

9

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.”

The said provision has to be read along with  

Sections 7A and 20 of the 2000 Act, together with  

Rule  98  of  the  2007  Rules,  which  deals  with  

disposed  of  cases  of  juveniles  in  conflict  with  

law, and provides as follows:  

“98.  Disposed  of  cases  of  juveniles  in  conflict with law. – The State Government  or  as  the  case  may  be  the  Board  may,  either suo motu or on an application made  for  the  purpose,  review  the  case  of  a  person or a juvenile in conflict with law,  determine his juvenility in terms of the  provisions contained in the Act and Rule  12 of these rules and pass an appropriate  order in the interest of the juvenile in  conflict with law under Section 64 of the  Act,  for  the  immediate  release  of  the  juvenile in conflict with law whose period  of detention or imprisonment has exceeded  the maximum period provided in Section 15  of the said Act.”

1

8. In the facts of this case, we are faced with a  

situation  where  the  juvenile,  Dhanna  Lal,  had  

already been tried along with adults and had been  

convicted under Sections 302/34, 326/34 and 324/34  

IPC and was sentenced to life imprisonment, out of  

which he has already undergone about 9 years of the  

sentence.  Rule 98 of the 2007 Rules, in our view,  

squarely  applies  to  Appellant  No.2  Dhanna  Lal’s  

case.  His case is to be considered not only for  

grant of bail, but also for release in terms of the  

said Rule, since he has completed more than the  

maximum  period  of  sentence  as  provided  under  

Section 15 of the 2000 Act.   

9. The legal position has been clearly explained  

in Hari Ram’s case (supra) and does not, therefore,  

require any further elucidation in this case.

10. Having regard to the fact that the Appellant  

No.2,  Dhanna  Lal,  was  a  minor  on  the  date  of  

1

commission  of  the  offence,  and  has  already  

undergone more than the maximum sentence provided  

under Section 15 of the 2000 Act, by applying the  

provisions of Rule 98 of the 2007 Rules read with  

Sections 15 and 64 of the 2000 Act, we allow the  

appeal as far as he is concerned and direct that he  

be released forthwith.  The bail application filed  

on his behalf is also disposed of, accordingly.

11. Let the appeal, as far as the other accused,  

Mohan  Mali,  is  concerned,  be  listed  for  hearing  

separately.  

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 28th April, 2010.            

1

ITEM No.1-B            Court No.3          SECTION  II-A (for judgment)                  

S U P R E M E   C O U R T   O F   I N D I A                           RECORD OF PROCEEDINGS

Crl. Misc. Peition No. 6426 of 20010 in       CR. APPEAL NO. 1305 OF 2009    

MOHAN MALI & ANR.                           Appellant (s)

                             VERSUS

STATE OF M.P.                                 Respondent (s)

Date : 28/04/2010  This  Petition was called on for  judgment today.

         For Appellant (s)    

Mr. Rajesh,Adv.

 For Respondent(s)  Mr. C.D. Singh,Adv.

                     Hon'ble  Mr.  Justice  Altamas  Kabir  

pronounced  the   order  of  the  Bench  

comprising His Lordship, and Hon'ble Mr.  

Justice Cyriac Joseph.

The appeal as far as Dhanna Lal  

is concerned is allowed and he be released  

forthwith.  The bail application filed on  

1

his  behalf  is  also  disposed  of  

accordingly.

Let the appeal, as far as the other  

accused,  Mohan  Mali,  is  concerned,  be  

listed for hearing separately.

            (Ganga Thakur)            (Juginder Kaur)             P.S. to Registrar              Court Master

 (Signed Reportable order is placed on the file.)

1