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CASE NO.: Appeal (crl.)  448 of 2005

PETITIONER: Bijender Singh                                                   

RESPONDENT: State of Haryana and Anr.                                        

DATE OF JUDGMENT: 28/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 4812 of 2003)

ARIJIT PASAYAT, J.

       Leave granted.

       The only point involved in this case is whether the respondent  No. 2, who was admittedly more than 16 years of age on 17.11.1999 when  he purportedly committed offences punishable under Sections 302, 364,  201 read with Sections 34 and 120B of the Indian Penal Code, 1860(in  short the ’IPC’) would be given the benefits of Juvenile Justice (Care  and Protection of Children) Act, 2000 (hereinafter referred to as the  ’2000 Act’) and would not be governed by the Juvenile Justice Act 1986  (in short the ’1986 Act’).   

Factual position is undisputed and is essentially as follows:

       A first information report was lodged on 20.11.1999 alleging  commission of the aforesaid offences on 17.11.1999. Charge sheet was  filed and charges were framed. After filing of the charge sheet  respondent No.2-Accused Sandeep made an application to the Court of  Chief Judicial Magistrate, Bhiwani praying that he should be considered  to be a juvenile under the 2000 Act. Since on the date of commission of  offence, 1986 Act was in force and according to its provision the  accused was not juvenile being above sixteen years of age, the  application was dismissed.  However, learned Sessions Judge Bhiwani  reversed the order and extended benefit of 2000 Act to the accused.   Complainant filed a revision application before the Punjab and Haryana  High Court, which by the impugned order was rejected.   

According to learned counsel for the appellant it is the date of  commission of the offence which is relevant and admittedly since the  date of birth of the respondent No.2\026 accused is 16.3.1982, he was  seventeen years and eight months of age at the time of commission of  offence, i.e. he was above sixteen years.  The 2000 Act is operative  from 01.04.2001 and has no relevance so far as the present appeal is  concerned.

       Learned counsel for the respondent on the other hand referred to  Section 64 of the 2000 Act to contend that a person who is in the  prison is given certain benefits and the same cannot be denied to a  person who is yet to face the trial.   

The Constitution Bench of this Court in Pratap Singh v. State of

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Jharkhand and Anr. (JT 2005(2) SC 271) had occasion to deal with the  matter relating to area of operation of the 1986 Act and 2000 Act.   After noticing a few relevant aspects which were noted in Pratap  Singh’s case (supra), the dispute in the present case can be  effectively adjudicated.

       The salient features of the 2000 Act may be noticed at the  outset. Section 1(3) of the said Act states that it would come into  force on such date as the Central Government may, by notification in  the Official Gazette, appoint.  The Central Government had issued an  appropriate notification in terms whereof; 1.4.2001 has been specified  as the ’appointed date’ from which the provisions of the said Act will  come into force.  The Act, thus, is prospective in its operation.   However, the 2000 Act has repealed the Act of 1986.  It has obliterated  the distinction between juvenile of different sex by reason whereof, a  male juvenile would also be juvenile if he has not crossed the age of  18.

       One of the basic distinctions between 1986 Act and 2000 Act  relates to 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 male  and female.  

       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 2000 Act must  be answered having regard to the object and purport thereof.

       In terms of the 1986     Act, a person who was not juvenile could  be tried in any court. Section 20 of 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.  (See Bhavnagar University v.  Palitana Sugar Mill (P) Ltd. and Ors. (JT 2002 (10) SC 55), ITW Signode  India Ltd. v. Collector of Central Excise (JT 2004 (6) SC 456) and  Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. (JT 2004 (1) SC  289).

       In interpreting a provision creating a legal fiction, the Court  has to ascertain for what purpose the fiction is created. (See Ex  Parte, Walton. In re. Levy (1881) 17 Ch.D.746). After ascertaining the  purpose the Court has to assume all those facts and consequences which  are incidental or inevitable corollaries for giving effect to the  fiction. (See East End Dwelling Co. Ltd. v. Finsbury Borough Council  (1951) 2 All E.R. 587, Chief Inspector of Mines v. Karam Chand Thapar  (AIR 1961 SC 838). But in so construing the fiction it is not to be  extended beyond the purpose for which it is created, or beyond the  language of the provision by which it is created. (See State of  Maharashtra v. Laljit Rajshi Shah and Ors. (2000 (2) SCC 699), In re.  Coal Economising Gas Company (1875) 1 Ch.D. 182) and Hill v. East and  West Dock. Co. (1884) 9 A.C. 448 (HL).

       Thus, by reason of legal fiction, a person, although not a

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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.           Section 20 of the 2000 Act would, therefore, be applicable when a  person is below the age of 18 years as on 1.4.2001. For the purpose of  attracting Section 20 of the said Act, it must be established that: (i)  on the date of coming into force the proceedings in which the  petitioner was accused was pending, and (ii) on that day he was below  the age of 18 years.  For the purpose of the said Act, both the  aforementioned conditions are required to be fulfilled. By reason of  the provisions of the 2000 Act, the protection granted to a juvenile  has only been extended but such extension is not absolute but only a  limited one. It would apply strictly when the conditions precedent  therefor as contained in Section 20 or Section 64 are fulfilled.         

The embargo of giving a retrospective effect to a statute arises  only when it takes away vested right of a person.  By reasons of  Section 20 of 2000 Act no vested right in a person has been taken away,  but thereby only an additional protection had been provided to a  juvenile.    

Provisions of 2000 Act would be applicable to those cases  initiated and pending trial/inquiry for the offences committed under  1986 Act provided that the person had not completed 18 years of age as  on 1.4.2001. In the instant case undisputedly the respondent No.2  accused had completed 18 years of age before 1.4.2001.                          The Constitution Bench in Pratap Singh’s case (supra) has held as  under:  

"(i)    In terms of the 1986 Act, the age of the  offender must be reckoned from the date when  the alleged offence was committed.

(ii)    The 2000 Act will have a limited application in  the cases pending under the 1986 Act.

(iii)The court would be entitled to apply the  ordinary rules of evidence for the purpose of  determining the age of the juvenile taking into  consideration the provisions of Section 35 of  the Indian Evidence Act, 1872 as the model  rules framed by the Central Government have no  statutory force."           In that view of the matter, the trial court has to deal with the  case of the respondent no. 2- accused keeping in view the law laid down   by the Constitution Bench in Pratap Singh’s case (supra).   

       The appeal is disposed of accordingly.

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