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CASE NO.: Appeal (crl.)  204 of 2008

PETITIONER: SUDESH KUMAR

RESPONDENT: STATE OF UTTARAKHAND

DATE OF JUDGMENT: 29/01/2008

BENCH: C.K. THAKKER & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 5639 OF 2007

Judgment Delivered by: C.K. THAKKER J, P.P. NAOLEKAR J,

C.K. THAKKER, J.

1.              I have had the benefit of going  through the judgment prepared by my learned  Brother. I am in agreement with him that the  appeal deserves to be dismissed. I, however,  decide the appeal on the second ground that on  the facts and in the circumstances of the case,  the appellant has failed to make out a ground  that he was less than 21 years of age at the  time of commission of offence. 2.              As observed by my learned Brother, the  accused had not claimed benefit of Section 6 of  the Probation of Offenders Act, 1958 either  before the trial Court or before the High  Court. My learned Brother has also referred to  Yaduraj Singh & Ors. v. State of U.P., (1976) 4  SCC 310 wherein this Court did not allow a new  plea as to age of the accused to be raised for  the first time in this Court. 3.              In Sushil Kumar Mehrotra v. State of  Uttar Pradesh, (1984) 3 SCC 123, a similar plea  was raised for the first time by the appellant- accused in this Court against his conviction  for an offence punishable under Section 302  read with Section 34 and Section 394 of the  Indian Penal Code (IPC). It was held that the  contention of the accused that he was 15= years  of age at the time of occurrence was \021a  complete after thought\022 and refused to grant  the benefit on that basis. 4.              It is, no doubt, true that the  provision is beneficial and benevolent in  nature and no \021technical\022 objection should be  raised that such plea was not taken before the  Courts below. [Gopinath Ghosh v. State of West  Bengal, (1984) Supp. SCC 228]. But in my  opinion, there must be credible and trustworthy  evidence in support of such plea. In the  present case, a certificate in the form of  \021Scholar Record & Transfer Certificate\022 is

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annexed wherein the date of birth of the  appellant was shown as June 28, 1962. The  certificate was not on record either before the  trial Court or before the High Court. From the  \021True Copy\022, it is clear that it is purported  to have been issued by the Principal only on  February 10, 2007. Thus, it cannot be said that  there is \021credible evidence\022 or \021trustworthy  material\022 that the appellant was less than 21  years of age at the time of commission of  offence. In my considered opinion, such  question cannot be permitted to be raised for  the first time in this Court and I am in  agreement with my learned Brother on that  point. 5.              Since the appeal can be decided on  this ground, I refrain from expressing any  opinion on the question dealt with and decided  by my learned Brother on interpretation of  Section 6 of the Act. 6.              The appeal is accordingly dismissed.

P.P. NAOLEKAR, J.

       Leave granted.      The appellant was convicted by the judgment and order  dated 26.7.1985 passed by the Additional District & Sessions  Judge, Dehradun, along with another accused person, under  Section 392 read with Section 34 of the Indian Penal Code  (IPC) and sentenced to undergo five years\022 rigorous  imprisonment  and  further  to  pay  a  fine  of  Rs.5,000/-  and  in default of payment of fine to undergo further  rigorous imprisonment for six months.  The appellant was  further convicted under Section 25 of the Arms Act and  sentenced to undergo rigorous imprisonment for one year.   In appeal preferred by the appellant, the High Court has  confirmed the order of conviction and sentence by its order  dated 9.7.2007.         The case of the prosecution in brief is that one Jagdish  Prasad was wholesale beedi merchant and carried on his  business in the name and style of M/s. Madrasee Basant  Beedi in Vikasnagar, District Dehradun.  Jagdish Prasad used  to go to collect his dues from the retailers on every 15th day.   On 7.3.1981, he went to Purola, Badkot for realization of his  dues.  Along with other persons, he was travelling in the car  which was being driven by the driver Gyanendra Singh.   While returning to Vikasnagar from Purola, they had stopped  at the curve of Katta Pather and alighted from the car.  Four  miscreants came on scooter and parked the said scooter in  front of the motor car.  Two miscreants were armed with  revolvers and the remaining two had khukhries with them.   All of them surrounded Jagdish Prasad and ordered him to  hand over money bag to them.  They also threatened him to  shoot and kill him if he made any protest.  Jagdish Prasad  quietly handed over the money bag containing about Rs.  25,000/-.  He also gave his wrist watch and a golden ring.   Another occupant of the  car was compelled to give cash of  Rs.230/- and the driver gave cash of Rs.600/- to them.  One  person sitting in the car was forced to give his three wrist  watches.  The miscreants snatched away the keys of the car  from its driver.  One of the miscreants ran away on the  scooter along with the money bag, while the remaining three  boarded the car and fled away.  On appreciation of the  evidence brought on record, the Additional District &  Sessions Judge found the accused persons guilty and

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imposed the punishment which was confirmed by the High  Court as mentioned hereinabove.  The accused appellant-  Sudesh Kumar has preferred this appeal against the order of  conviction and sentence.         Shri K.T.S. Tulsi, learned  senior counsel appearing for  the appellant has submitted only one point that the accused  at the time of the commission of the crime was below 21  years of age which is apparent from the statement recorded  under Section 313 Cr.P.C. of the accused wherein age of the  accused was given by the accused as 20 years and from the  transfer certificate, filed along with special leave petition,  issued by the Principal, Sanatan Dharma Junior High School,  Dehradun, which shows that the appellant was born on  28.6.1962.  It is, therefore,  submitted that it is clearly  established that the accused appellant on the date of the  offence, i.e. 7.3.1981, was below 21 years of age and as  such was entitled to consideration and benefit under Section  6 of the Probation of Offenders Act, 1958 (hereinafter  referred to as \023the Act\024 for convenience).         On the other hand, it is urged by Shri Jatinder Kumar  Bhatia, learned counsel for the State that the accused  having not raised the question of his age either before the  trial court or before the High Court, and in the absence of  any reliable material, could not ask for consideration of his  case and benefit under Section 6 of the Act.   It is further  submitted that it is the date on which the sentence is passed  which shall be the relevant date for applicability of Section 6  of the Act.          The question involved in this case is of interpretation of  Section 6 of the Act.  It would, therefore, be appropriate to  reproduce Section 6 which reads as under:         \0236. Restriction on imprisonment of  offenders under twenty-one years of age. \026  (1) When any person under twenty-one years of  age is found guilty of having committed an offence  punishable with imprisonment (but not with  imprisonment for life), the court by which the  person is found guilty shall not sentence him to  imprisonment unless it is satisfied, that having  regard to the circumstances of the case including  the nature of the offence and the character of the  offender, it would not be desirable to deal with  him under section 3 or section 4, and if the court  passes any sentence of imprisonment on the  offender, it shall record its reasons for doing so.

       (2) For the purpose of satisfying itself  whether it would not be desirable to deal under  section 3 or section 4 with an offender referred to  in sub-section (1), the court shall call for a report  from the Probation Officer and consider the report,  if any; and any other information available to it  relating to the character and physical and mental  condition of the offender.\024

       While interpreting Section 6 of the Act, a 3-Judge  Bench of this Court in the case of Daulat Ram v. The State  of Haryaya, (1972) 2 SCC 626, has said that the object of  Section 6 of the Act, broadly speaking, is to see that young  offenders are not sent to jail for the commission of less  serious offences mentioned therein because of grave risk to  their attitude to life to which they are likely to be exposed as  a result of their close association with the hardened and  habitual criminals who may happen to be the inmates of the  jail. The Court laid down that Section 6 places restrictions on

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the court\022s power to sentence a person under 21 years of  age for the commission of crimes mentioned therein unless  the court is satisfied that it is not desirable to deal with the  offender under Sections 3 and 4 of the Act.  The court is also  required to record reasons for passing sentence of  imprisonment on such offender.         In another case in the matter of Satyabhan Kishore  and Another v. The State of Bihar, (1972) 3 SCC 350,   this Court (a 3-Judge Bench) reiterated the principle laid  down by the Court in Daulat Ram case (supra) and Shelat,  J. speaking for the Court held that Section 6 lays down  an  injunction as distinguished from discretion under Sections 3  and 4 not to impose a sentence of imprisonment on an  offender, unless reasons are recorded.           From the aforesaid judgments, it is apparent that while  imposing a sentence on an accused who is below 21 years of  age and who is found guilty of having committed an offence  punishable with imprisonment which is not the imprisonment  for life, the court shall not sentence him to imprisonment  unless it is satisfied that having regard to the circumstances  of the case including the nature of the offence and the  character of the offender it is not desirable to deal with him  under Section 3 or Section 4 of the Act.  It further mandates   that if the court wants to impose a sentence of  imprisonment on the offender who is below 21 years of age  it shall record its reasons for doing so.  Thus, the court  imposing a sentence of imprisonment on an accused who is  below 21 years of age would record reasons as to why it  does not find it desirable to deal with him under Section 3 or  Section 4 of the Act.           It can be noticed that the question of the offender  being of 21 years or below on the date of the commission of  offence or on the date of imposition of sentence of  imprisonment was not dealt with in the above-mentioned  cases.         The learned counsel for the appellant has relied upon a  2-Judge Bench judgment of this Court in the case of  Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458,  wherein this Court held as under:         \0236.  In case of an offender under the age of  21 years on the date of commission of the offence,  the court is expected ordinarily to give benefit of  the provisions of the Act and there is an embargo  on the power of the court to award sentence  unless the court considers otherwise, ‘having  regard to the circumstances of the case including  nature of the offence and the character of the  offender\022, and reasons for awarding sentence have  to be recorded.  Considerations relevant to the  adjudication of this aspect are, circumstances of  the case, nature of the offence and character of  the offender.  It is, therefore, necessary to keep in  view the aforementioned three aspects while  deciding whether the appellant should be granted  the benefit of the provisions of the Act.\024

       It appears that in Masarullah case (supra), the Court  did not notice a 4-Judge Bench judgment delivered by  Ayyangar, J. in Ramji Missar and Another v. State of  Bihar, AIR 1963 SC 1088 ( = (1963) Supp. 2 SCR 745),  wherein this Court  has noticed argument  before the High  Court that the Sessions Judge erred in not applying the  provisions of Section 6 of the Act to the accused.  The High  Court repelled the contention holding that although the  accused might have been under 21 years of age on the date

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of the offence, he was not a person under 21 years of age  on the date when the Sessions Judge found him guilty and  sentenced him to a term of imprisonment, and held that the  crucial date on which the age had to be determined being  not the date of offence but the date on which as a result of a  finding of guilty sentence had to be passed against the  accused.   In the factual matrix of that case, this Court held  as under:         \0236.  Taking first the case of Ramji, the elder  brother, we entirely agree with the High Court in  their construction of S.6. The question of the age  of the person is relevant not for the purpose of  determining his guilt but only for the purpose of  the punishment which he should suffer for the  offence of which he has been found, on the  evidence, guilty. The object of the Act is to  prevent the turning of youthful offenders into  criminals by their association with hardened  criminals of mature age within the walls of a  prison. The method adopted is to attempt their  possible reformation instead of inflicting on them  the normal punishment for their crime. If this  were borne in mind it would be clear that the age  referred to by the opening words of S.6(1) should  be that when the court is dealing with the  offender, that being the point of time when the  court has to choose between the two alternatives  which the Act in supersession of the normal penal  law vests in it, viz., sentence the offender to  imprisonment or to apply to him the provisions of   S.6(1) of the Act. \005.\024  The Court further said: \02319. We shall now proceed to consider one  question which was mooted before us in regard to  the crucial date for reckoning the age where an  appellate court modifies the judgment of the trial  Judge, when S.6 becomes applicable to a person  only on the decision of an appellate or a revisional  court. Is the age of the offender to be reckoned as  at the date of the judgment of the trial Judge or is  it the date when the accused is, for the first time,  in a position to claim the benefit of S.6. We  consider that on the terms of the section, on  grounds of logic as well as on the theory that the  order passed by an appellate court is the correct  order which the trial court should have passed,  the crucial date must be that upon which the trial  court had to deal with the offender. \005\024

From the judgment of the Court, it is apparent that the date  of the judgment of the trial court would be the crucial date  for consideration of the age of the accused while applying  Section 6 of the Act.         Faced with the 4-Judge judgment of this Court in  Ramji Missar (supra), the learned senior counsel for the  appellant contended that while considering the pari materia  provisions under the Juvenile Justice Act, 1986, a  Constitution Bench of this Court in Pratap Singh v. State  of Jharkhand and Another, (2005) 3 SCC 551, has held  that reckoning date for determining the age of a juvenile is  the date of the commission of the offence and not the date  when he is produced before the competent authority or in  the court and, therefore, the provisions of Section 6 of the  Act should be construed in the same light, and the age of  the accused for applying Section 6 of the Act has to be the

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date on which the offence was committed.   While  interpreting the provisions of the Juvenile Justice Act, 1986  (for short \023the 1986 Act\024) and the Juvenile Justice (Care and  Protection of Children) Act, 2000 (for short \023the 2000 Act\024),  this Court has observed that these Acts provide for the care,  protection, treatment, development and rehabilitation of   juveniles.  The Acts being benevolent legislations, such  interpretation must be given which would advance the cause  of the legislations, i.e. to give benefit to juveniles.  Section  2(l) of the 2000 Act defines ‘juvenile in conflict with law\022 as   meaning a juvenile who is alleged to have committed an  offence.  The definition of ‘delinquent juvenile\022 in the 1986  Act is referable to an offence said to have been committed  by him.  It is the date of offence that he was conflict with  law.  When a juvenile is produced before the competent  authority and/or court, he has not committed an offence on  that date, but he was brought before the authority for the  alleged offence which he has been found guilty to have  committed.  Therefore, what was implicit in the 1986 Act  has been made explicit in the 2000 Act.  Sinha, J. in his  concurring judgment said that having regard to the  constitutional and statutory scheme it was not necessary for   Parliament to specifically state that the age of  juvenile must  be determined as on the date of  commission of the offence  and the same is inbuilt in the statutory scheme.        From the aforesaid, it is apparent that while  determining the age of a juvenile the Court has interpreted  the provision for giving benefit to a juvenile who has  committed an offence and was in conflict with law.  The  offence having been committed,  he came in conflict with  law on the date of commission of the offence which is  relevant for determining the age for giving protection under  the 1986 Act and the 2000 Act.         It can be noticed from Ramji Missar case (supra) and  Pratap Singh case (supra) that the object and purpose of  the Probation of Offenders Act, 1958 for applying the  relevant provisions to the accused are different and cannot  be said in pari materia with the Juvenile Justice Act, 1986  and the Juvenile Justice (Care and Protection of Children)  Act, 2000.  The Court would not construe a Section of a  statute with reference to that of another statute unless the  latter is in pari materia with the former.  Therefore, a  decision made on a provision of a different statute will be of  no relevance unless underlying objects of the two statutes  are in pari materia.  The decision interpreting various  provisions of one statute will not have the binding force  while interpreting the provisions of another statute.  Section  6 of the Act has been construed by a 4-Judge Bench of this  Court in Ramji Missar case (supra) and that will have the  binding force while interpreting the same Section in same  statute and the decision of the Constitution Bench  interpreting provisions of the 1986 Act and the 2000 Act  would not be held to be a decision on interpretation of  Section 6 of the Act.  Section 6 of the Act would apply to the  accused who is under 21 years of age on the date of  imposition of punishment by the trial court and not on the  date of commission of the offence.  If on the date of the  order of conviction and sentence by the trial court the  accused is below 21 years of age the provisions of Section 6  of the Act applies in full force.      That being the case, even if the date of birth of the  accused is held to be 28.6.1962 as alleged by him in the  petition, on the date of delivery of judgment of conviction  and sentence on 26.7.1985 by the Additional District &  Sessions Judge he was more than 21 years of age and thus

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was not entitled to the benefit under Section 6 of the Act.      That apart, the question of applicability of the Act has  been raised for the first time while filing the special leave  petition.   The accused has not claimed benefit under  Section 6 of the Act during the trial before the Additional  District &  Sessions Judge or before the High Court.  Only  material which was placed before the Sessions Judge or the  High Court is the statement recorded of the accused  appellant under Section 313 Cr.P.C. wherein the age of the  accused was given as 20 years.  In the similar  circumstances, in Yuduraj Singh and Others v. State of  U.P., (1976) 4 SCC 310, this Court  held as under:            \0232.  The learned counsel appearing for the  appellants argues that on August 30, 1969 when  the incident took place, appellants 3 and 4 were  less than 21 years of age and, therefore, they  ought to have been given the benefit of the  Probation of Offenders Act.  This contention was  neither taken in the sessions court nor in the High  Court.  True, that this Court has taken the view  that in appropriate cases such a contention may  be entertained by this Court for the first time.  But  the difficulty in accepting the submission of the  learned counsel is that there is no credible  evidence on the record showing that appellants 3  and 4 were less than 21 years of age when the  offence was committed.  Counsel says that those  two accused had given their ages in their  statements under Section 342, Code of Criminal  Procedure, and if the trial Judge doubted the  correctness thereof, he could have had the two  accused medically examined in order to ascertain  their age  This seems to us a difficult burden for  any trial Judge to undertake.  The age given by  the two accused in their statements had no special  significant in the absence of a proper plea under  the Probation of Offenders Act. \005\024                        For the aforesaid reasons, the appeal being devoid of  any merit, is dismissed.