Manoj Vs State of U.P.

Harsh Kumar, J.@mdashThis revision has been filed against the order dated 13.12.2000 passed by Second Additional Sessions Judge, Ghaziabad in Sessions Trial No. 154 of 1991 (State v. Manoj and others) under Sections 307 and 302 I.P.C. Police Station Sahani Gate, District Ghaziabad whereby the trial Court has refused to treat the applicant-revisionist to be a juvenile in conflict with law'', and entitled to the benefits under provisions of Juvenile Justice Act.

The Juvenile Justice Act, 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000, shall herein after be mentioned as 1986 Act and 2000 Act respectively.

The brief facts relating to the case are that regarding the occurrence of murder, at 9.15 a.m. on 3.11.1990, an F.I.R. was lodged, naming the revisionist and others, and role of firing as well as causing of fatal fire arm injuries to the deceased was assigned to the revisionist, who surrendered before the Magistrate on 8.11.1990. After filing of charge-sheet the case was committed to sessions on 31.5.1991 and charges were framed against revisionist as well as other accused on 23.1.1992. After completion of prosecution evidence, the statement of accused-revisionist was recorded on 26.5.1999 and again on 11.10.1999 under provisions of Section 313 of Code of Criminal Procedure. On 31.5.1999 the revisionist moved an application before the Additional Sessions Judge claiming himself to be juvenile on the date of occurrence, in view of his date of birth 6.6.1975 and also filed a copy of school transfer certificate having entry of his date of birth as above on the basis of which bail was granted to him vide order dated 2.9.1992. The trial Court after hearing, disbelieved the date of birth in school transfer certificate, and rejected his application for treating him juvenile vide order dated 9.2.2000.

Against the order dated 9.2.2000 rejecting application of juvenility, the revisionist filed Criminal Revision No. 347 of 2000 before this Court, which was allowed vide order dated 28.2.2000 and setting aside order dated 9.2.2000, the lower Court was directed to determine the age of revisionist at the time of commission of offence after receiving the medical report.

2. In furtherance of the order passed by this Court on 28.2.2000 in Criminal Revision No. 347 of 2000, the trial Court called for the report of Medical Panel Board, duly constituted by Chief Medical Officer, Ghaziabad and in report of Medical Panel Board dated 7.11.2000, age of revisionist Manoj was determined at about 25 years. Upon receipt of medical report and hearing the parties counsel the trial Court again on 3.12.2000 refused to declare the revisionist to be a juvenile and rejecting his application fixed the case for defence evidence and accused Manoj preferred this revision which was heard and dismissed by this C6urt, vide order dated 12.9.2006 directing the trial Court to proceed with the case, expeditiously.

3. Feeling aggrieved with above order dated 12.9.2006, the revisionist filed Criminal Appeal No. 920 of 2014 before the Hon''ble Apex Court, which was allowed vide order dated 21.4.2014 directing this Court to reconsider the controversy on the issue of juvenility, with reference to Rule 12 of Juvenile Justice (Care and Protection of Children) Rule, 2007 and to decide the issue as expeditiously as possible, preferably within a period of three months from the date of receipt of this order.

4. Heard Shri Shyam Lal learned counsel for the revisionist and learned AGA for the State.

Learned counsel for the revisionist argued that it is not disputed that according to the prosecution case, revisionist is the main accused and role of causing fatal fire arm injury has been assigned to him in the occurrence of murder dated 3.11.1990; that undisputedly the revisionist had surrendered before the Magistrate on 8.11.1990 and though he claimed himself to be juvenile in bail application and considering his date of birth 6.6.1975, he was granted bail on 2.9.1992, no formal application claiming himself to be juvenile was moved by him on 8.11.1990 or at any other time during the pendency of the trial, until 31.5.1999, when application was moved after completion of prosecution evidence; that according to the provisions of 2(h) of 1986 Act the accused who is alleged to have committed on offence and had not completed the age of 16 years shall be treated as juvenile while under provision of Section 2(1) of 2000 Act, the accused who is alleged to have committed an offence and had not completed 18 years of age as on the date of commission of such offence, shall be treated as juvenile in conflict with law; that at the time of occurrence the 1986 Act was in existence, in place of which 2000 Act has come into force w.e.f. 1.4.2001; that in Section 20 of the new Act, special provisions have been made in respect of pending cases, according to which the case pending against the juvenile, shall be continued in that Court, and if the Court finds that the juvenile has committed offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board who shall pass an order in respect of that juvenile, in accordance with the provisions of this Act; that the trial Court has rejected the application mainly on two grounds; 1stly because the relevant date for determining as to whether the accused was juvenile in conflict with law or not, will be the date when after committal of case to sessions, he appeared before the Court and charge was framed against him, and 2ndly, because the application has not been moved at the earliest but has been moved at a highly belated stage after completion of prosecution evidence, and has been moved mala fide as an after-thought to save himself from the clutches of law; that it is pertinent to mention that vide order dated 2.9.1992, the second bail application of applicant-revisionist claiming himself to have born on 6.6.1975, the First Additional Sessions Judge, Ghaziabad granted him bail holding that from school transfer certificate it appears that the applicant Manoj was below 16 years of age at the time of commission of alleged offence; that as per the settled principles of law the application seeking himself to be juvenile may be moved at any stage and may not be rejected on the ground of delay, if any; that in any case if due to fault of counsel for accused the formal application could not be moved at first instance or at initial stage, it may not adversely affect the rights and interests of juvenile accused and his application may not be rejected on mere ground of delay in hyper-technical manner; that according to the settled principles of law even after conviction, during appeal, before the High Court or Hon''ble the Apex Court the benefit of being juvenile on the date of occurrence may be sought and granted; that the date of birth of revisionist according to the school transfer certificate is 6.6.1975 and on the date of occurrence 3.11.1990 his age comes to only 15 years 4 months and 27 days, which is much below the age of 16 years, which was prevailing age of juvenile for seeking benefit of being juvenile, at the time of occurrence under the provisions of 1986 Act; that according to the medical penal report dated 7.11.2000 his age was determined at about 25 years; that apart from it in statement under Section 313 Cr.P.C. dated 26.5.1999 and 11.10.1999 he has stated his age to be 23 years and 25 years respectively and it comes to around 14 1/2 years and 15-1/2 years on the date of occurrence respectively; that the age given by the accused-revisionist in his statement under Section 313 Cr.P.C. may not be disputed in view of the circular letter No. 5/06/admn/G dated 15.2.2006 which has been issued by this Court in the light of judgment in Criminal Jail Appeal No. 58/01, Kallu v. State of U.P., 2000 ACC 343, directing all the Sessions Judges and Magistrates to make positive endorsement as to their own estimate of the age of accused, in each and every case, irrespective of Court being in agreement with the age as mentioned by accused in examination under Section 313 Cr.P.C; that since there is no such endorsement of Court below regarding incorrectness of the age given by the revisionist, the age given by the revisionist will be taken to be correct and may not be disputed; that in view of the materials on record, the age of applicant-revisionist on the relevant date of occurrence 3.11.1990 comes to (i) 15 years 4 months and 27 days as per the school transfer certificate as date of birth mentioned therein is 6.6.1975; (ii) around 14 1/2 years as per the statement under Section 313 Cr.P.C. Dated 26.5.1999; (iii) around 15 1/2 years as per statement under Section 313 Cr.P.C. dated 11.10.1990 and (iv) according to the report of medical panel board dated 7.11.2000 determining his age to be 25 years, it comes to around 15 years, and each & every evidence on record shows that he was below the age of 16 years on the date of occurrence and much below the age of 18 years and so was a juvenile in conflict with law as per the provisions of 1986 Act as well as 2000 Act; that for the delay, how high so ever it may be or otherwise, the applicant-revisionist may not be denied the benefits provided to him under law, on account of his being juvenile on the date of occurrence; that the trial Court has acted wrongly and illegally in refusing to declare the applicant-revisionist to be a juvenile merely for the reason that the application was moved with delay, after completion of prosecution evidence; that since the applicant-revisionist was a juvenile on the date of occurrence, he may not be denied the benefits under any circumstances; that the lower Court has taken a very hyper-technical approach in rejecting the application and the impugned order refusing to declare him to be juvenile is based on the surmises and conjunctures; that rejecting the application of revisionist without determining the actual or approximate age of the applicant-revisionist on the date of occurrence, the trial Court has committed grave injustice and the impugned order is not only wrong or illegal but is perverse also; that the impugned order is liable to be set aside and the applicant-revisionist is entitled to be declared a juvenile in conflict with law.

In support of his arguments, the learned counsel for the revisionist has relied on various case laws.

5. Learned AGA defended the impugned judgment and prayed for dismissal of revision and confirmation of impugned order.

6. Before proceeding further, I find it appropriate to make a mention of the relevant provisions of 1986 and 2000 Acts as well as of the Juvenile Justice (Care and Protection Children) Rules, 2007 and so the relevant parts of Section 2(h) of 1986 Act Sections 2(1), 7, 7-A, 20 and 49 of 2000 Act and Rule 12 of2007 Rules are being reproduced as under:

"1986 Act

Section 2(h) ''Juvenile'' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

2000 Act

Section 2(1)

"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 7. Procedure to be followed by a Magistrate not empowered under the Act.--(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him tinder any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it:

Section 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 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 order, and the sentence if any, passed by a Court shall be deemed to have no effect.

Section 20. Special provision in respect of pending cases.--Notwithstanding anything contained in this Act, all proceeding 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.

Section 49. Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.

Rule 12. Procedure to be followed in determination of Age.--(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or, as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a)(i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

7. It is pertinent to mention that the 2000 Act has come into force w.e.f. 1.4.2001 and considerable amendments were made therein by Amendment Act 33 of 2006 w.e.f. 22.8.2006 while the rules were framed and enforced in 2007.

8. The lower Court record was not summoned since filing of revision in 2001 and after receipt of order of Hon''ble Apex Court, summoning of lower Court record was not found necessary because the facts mentioned in the detailed impugned order have not been disputed by either party and on the basis of such undisputed facts and material on record just and appropriate disposal of revision can be done.

9. Undisputedly, the revisionist claiming himself to be juvenile as on the date of occurrence moved an application on 31.5.1999 stating his date of birth to be 6.6.1975 as per entry in the copy of his school transfer certificate. The above certificate was not relied by trial Court and his application was rejected vide order dated 9.2.2000 against which, Criminal Revision No. 347 of 2000 was filed before this Court and this Court by setting it aside, vide order dated 28.2.2000, directed trial Court to determine the age of revisionist at the time of commission of offence, after receiving the medical report. In the medical report dated 7.11.2000 of medical panel board, duly constituted by Chief Medical Officer, the approximate age of revisionist was determined at about 25 years and according to it on the date of occurrence 3.11.1990 his age comes around 15 years. The trial Court reviving on the law laid down by Hon''ble the Apex Court in the case of Arnit Das Vs. State of Bihar, , holding that the relevant date for determining the age of accused for the question of Juvenility, will not be the date of occurrence, but will be the date when he appeared before the sessions Court after committal of case and charges were framed against him again rejected the application vide impugned order. The trial Court has also held that the application for claiming benefit of being juvenile must have been moved either at earliest opportunity, at the time of surrender before the Magistrate or at subsequent opportunity when after taking cognizance, his case was committed to sessions, and since, the revisionist has not taken the plea earlier and has taken it at the belated stage of final arguments after completion of evidence in sessions trial, and that too without assigning any explanation and since he had attained majority on the date of framing of charges, there is no sufficient ground to declare him juvenile on the date of occurrence and ordered the trial to proceed.

10. It is noteworthy that the date of birth mentioned in school transfer certificate was not considered reliable earlier, by trial Court in its order dated 9.2.2000, and since the trial Court was directed to determine the age on the basis of medical report so alleged date of birth mentioned in school transfer certificate looses its weight to some extent, but it will not be correct to say that it has become totally irrelevant so as to discard it altogether. It is pertinent to mention that in the impugned order, the learned trial Court has not disbelieved or discarded the report of medical panel board dated 7.11.2000 mentioning the age of revisionist around 25 years, which comes to around 15 years on the date of occurrence on 3.11.1990, rather relying on this report and holding the relevant date for considering juvenility of accused will be 23.1.1992 when charges were framed held that since on above date the revisionist was not a juvenile, so he may not be declared juvenile.

11. It will not be unnecessary to mention that under the old Act, Juvenile Justice Act, 1986, the age of juvenile boy was upto 16 years, which has been enhanced by the new Act 2000 from 16 years to 18 years. It may not be disputed that according to report of Medical Panel Board, the age of revisionist comes around 15 years on the date of occurrence 3.11.1990 and more than 16 years on the date of framing of charges on 23.1.1992.

12. Before considering the facts and material on record, following case laws and principles of law laid down by Hon''ble Apex Court may be discussed.

13. In Rajinder Chandra Vs. State of Chhattisgarh and Another, , where the date of birth in school register was doubted and the age of accused was just on the border of 16 years and it was about 16 years as per medical report, Hon''ble the Apex Court held that:

"In case where on the evidence on plea of juvenile, two views are possible, instead of adopting a hyper-technical approach, the Court should lean in favour of holding the accused to be a juvenile."

14. In the case of Pratap Singh Vs. State of Jharkhand and Another, , the Constitutional Bench of Apex Court held that the law laid down in Arnit Das Case (which has been relied by trial Court in the impugned order) is not good law and that "For determining the age of juvenile the relevant is the date of commission of offence and not the date when the accused is produced before the competent Court". The Constitutional Bench further held that "Section 20 of the 2000 Act, would apply only to cases in which the accused was below 18 years of age on 1.4.2001, on which the 2000 Act came into force, but it would have no application in case the accused had crossed the age of 18 years on the date of coming in to force of the 2000 Act."

Applying the ratio of above Constitutional Bench decision the revisionist would not be entitled to the protection and benefits of the provisions of 2000 Act, since he was undisputedly over 18 years of age on 1.4.2001. However, the matter does not come to an end at this stage.

15. In the case of Hari Ram Vs. State of Rajasthan and Another, , where the accused having been arrested on 30.11.1998 was committed to sessions on 3.4.2000 and on finding him below 18 years on the date of occurrence was declared juvenile and was directed to be tried by J.J. Board but in revision, finding that he had exceeded age of 16 years by 13 days and medical examination indicated the age between 16 and 17 years, holding that accused is not governed by the Act of 2000, the order holding juvenile was set aside by the Rajasthan High Court. In appeal Hon''ble the Apex Court allowing the appeal held "that Section 2(1) of Juvenile Justice Act, 2000 defines juvenile in conflict with law is the person, who has not completed 18 years of age as on the date of commission of offence". It further held "that in view of provisions of Section 2(k), 2(1), Section 20 and Section 7-A of Juvenile Justice Act, 2000, the claim of juvenility may be raised before any Court, at any stage and such claim will be required to be determined in terms of provisions contained in 2000, Act and rules framed thereunder, even if juvenile had ceased to be so on or before the date of commencement of the 2000 Act." Further holding and observing "that the Constitutional Bench decision in Pratap Singh case, ibid, is no longer relevant, since it was rendered under the unamended Act of 2000, (which has been amended vide amending Act 33 of 2006 w.e.f. 22.8.2006)" it held and observed in paras 59, and 67 to 70 at page 227 and 228 as under:

"59. The law as now crystallized on a conjoint reading of Sections 2(k), 2(1), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 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 was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.

67. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act.

68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.

69. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (1) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.

70. In the instant case, there is no controversy that the appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age. In view of Sections 2(k), 2(1) and 7A read with Section 20 of the said Act, the provisions thereof would apply to the appellant''s case and on the date of the alleged incident it has to be held that he was a juvenile."

16. In the case of Dharambir Vs. State (NCT of Delhi) and Another, , the Apex Court in case where accused was 16 years 9 months old on date of occurrence 25.8.1991, has held that. "In a claim for juvenility, Juvenile Justice Act, 2000 has a retrospective application to pending case and all persons who were below of age of 18 years on the date of crime, even prior to 1.4.2001, held can claim benefit of juvenility under 2000 Act, even if claim of juvenility is raised after they have attained the age of 18 yeas on or before the age of commencement of 2000 Act and were undergoing sentence upon being convicted." Observing that appellant had undergone sentence of imprisonment of 2 years 4 months and 4 days and is now 35 years old, sustaining the convictions the sentence was quashed with directions for release forthwith.

17. In the case of Mohan Mali and Another Vs. State of M.P., , the plea of juvenility was permitted to be made before the Supreme Court by a convict who was undergoing sentence of life imprisonment under Sections 302/ 34, 326/ 34 and 324/ 34 IPC, and had already undergone 9 years of imprisonment. Considering the fact that he was juvenile on the date of commission of offence, he was held entitled to benefit of Section 7-A read with Section 64 and provisions of Rule 98 of 2007 Rules and allowing his appeal, order for his release were passed.

18. Again in the case of Lakhan Lal Vs. State of Bihar, , it was held "that provisions of Sections 2(k), 2(1), 7A, 20 and 49 of 2000 Act applies to accused, who were not juveniles within the meaning of Juvenile Justice Act, 1986 when the offences were committed, but had not completed 18 years of age when offences were committed, would be treated as juveniles and entitled to benefit of 2000, Act even when claim of juvenility was raised after they had attained 18 years of age and the relevant date for determining claim of juvenility is date on which offence was committed and not when accused was produced before the Court."

The undisputed dates and events, which are relevant for the purpose of this revision are being described as under:

19. The view taken by Hon''ble Apex Court in cases of Hari Ram Dharambir and Mohan Mali (ibid) was again confirmed in Daya Nand Vs. State of Haryana, , where in an appeal against conviction and sentence of rigorous imprisonment for 5 years and fine, under Section 376 read with Section 511 of IPC by trial Court, having been affirmed by High Court, the Apex Court finding that appellant was aged 16 years 5 months and 19 days, on 2.2.1998 the date of occurrence, held that he was a juvenile and thus could not be compelled to undergo sentence and setting aside sentence the accused was directed to be released from prison.

20. In the case of Ajahar Ali Vs. State of West Bengal, , where accused was aged about 16 years on the date of occurrence 6.11.1995 it was further reiterated that "the plea of juvenility can be raised at any stage irrespective of delay in raising same".

21. In the case of Bharat Bhushan Vs. State of Himachal Pradesh, , in a case under Sections 376 IPC with a prosecutrix aged about 9 to 12 years and the accused was more than 16 years of age, on 22.6.1993 at the time of commission of offence but less than 18 years of age on 1.4.2001 when 2000, Act came into force, the accused was held entitled to benefit of 2000 since on the date of offence, he was a juvenile in terms of 2000, Act.

22. Again in the case of Ranjeet Goswami Vs. State of Jharkhand and Another, , the J.J. Board discarding the school records as proof of age, obtained opinion of medical board and on the basis of medical report rejected the claim of juvenility, and committed the accused to sessions. In appeal before sessions Judge, the benefit of doubt was given to accused, on the basis of conflicting evidence regarding age of accused and case was found triable by J.J. Board. The order of appeal was set aside by the High Court, in revision, and the order of J.J. Board for trial by sessions Court was restored. In appeal Hon''ble the Apex Court allowing the appeal restored the order passed by Sessions Judge in appeal and held that "Acceptance of medical report arises only if school records were discarded by stating cogent reasons".

23. From the case laws discussed herein before it is clear that is settled principles of law as laid down by Hon''ble Apex Court that even in cases of occurrence before coming into force of 2000 Act, the relevant date for determining the juvenility of accused will be the date of occurrence and no other subsequent date and that provisions of 2000 Act, as amended by Act 33 of 2006 w.e.f. 22.8.2006 will be applicable to the cases relating to offence taken place during enforcement of 1986 Act and before enforcement of 2000 Act on 1.4.2001.

24. In view of the facts and law laid down by Hon''ble the Apex Court in above mentioned cases directions given by Hon''ble the Apex Court vide order dated 21.4.2014 as well as in view of provisions of 2000 Act and Juvenile Justice Rules, 2007, it may not be disputed that the juvenility of revisionist is required to be determined on the date of occurrence i.e., 3.11.1990, and not on any subsequent date or on date of framing of charges by sessions Court as held by Additional Sessions Judge, Ghaziabad.

25. In the case of Arnit Das Vs. State of Bihar, , relevant date was held to be the date when the offender is produced before the competent authority or Court. In impugned order stating to have paid reliance on above case law and holding that the date of occurrence is not the relevant date for the purpose the trial Court held that since after appearing before the Court of sessions after committal of case, he was not juvenile on the date of framing of charges so he may not be considered to be juvenile and thus refused to declare the revisionist to be a juvenile in conflict with law. The learned trial Court has not assigned any reason or justification for taking the date of framing of charges as relevant date for determining the juvenility of accused which is neither in consonance with the provisions of Act not with the law laid down by Hon''ble Apex Court and relied by the trial Court. Moreover, the trial Court has not specifically mentioned in the impugned order as to what was the age of revisionist even on the date of framing of charges. The impugned order shows that in refusing to declare the revisionist to be a juvenile, the trial Court has not only adopted a hyper-technical approach but its approach is purely arbitrary in selecting the date of framing of charges as relevant date for determination of the juvenility of an accused because it was cautious enough and was aware of the fact that the revisionist below 16 years of age on all earlier dates.

26. The Rule 12 of Juvenile Justice Rules, 2007 provides that for the purpose of determining the age of juvenile in conflict with law, Istly, the matriculation or equivalent certificate and in absence of it, IIndly, date of birth certificate of school and in absence of it, IIIrdly, the birth certificate given by a corporation or municipal authority or panchayat shall be considered and in absence of any of above three, the medical opinion will be sought from the duly constituted Medical Board.

The facts mentioned in impugned order shows that the revisionist claimed his date of birth to be 6.6.1975 as per school transfer certificate and his age was determined to be about 25 years in report of duly constituted Medical Penal Board, dated 7.11.2000.

27. In view of above evidence on record the age of revisionist in view of Rule 12 of 2007 Rules on different dates, or in accordance with law laid down from time to time, which may be considered to be relevant date, as well as on the date, taken to be relevant by sessions Judge, comes as under:

The Additional Sessions Judge in impugned order has refused to treat the revisionist as juvenile mainly on two counts, viz. (i) that application has been moved with inordinate delay at the stage of final arguments and (ii) the accused was not a juvenile on 23.1.1992, the date of framing of charges against him, which is the relevant date for determining the juvenility of an accused.

Before commencement of 2000 Act w.e.f. 1.4.2001, there was conflict as to the relevant date of determining the juvenility of accused and in some cases it was contended to be the date of occurrence, while in some cases, the date of surrender of accused before the Magistrate and in some other cases the date of taking of cognizance by the Magistrate.

28. The above controversy was set at rest by law laid down in Arnit Das case, ibid which held that date of surrender of accused before the Magistrate will be the relevant date. However, after coming into force of 2000 Act w.e.f. 1.4.2001, in view of the provisions of Section 7 of the Act, the Constitutional Bench of Hon''ble Apex Court in Pratap Singh case, ibid held that relevant date will be the date of commission of offence and law laid down in Arnit Das case ibid held to be not good law. Again after drastic amendments in 2000 Act by amendment Act 33 of 2006, w.e.f. 22.9.2006, it was clearly provided in Section 7-A of 2000 Act, that the date of occurrence will be the relevant date for determining the age of an accused who claims himself to be juvenile.

29. Before analysing the impugned order in view of above mentioned legal position as well as materials and facts on record, it is pertinent to mention at the cost of repetition that in this case offence was committed on 3.11.1990 when 1986 Act was in force, provided the age of juvenile of a male accused as 16 years. The impugned order has been passed on 13.12.2000, prior to coming into force of 2000 Act and also much before the decision of Pratap Singh case ibid, which held law laid down in Arnit Das case, ibid as not good law. Hence it may not be disputed that at the time of passing of impugned order by the Additional Sessions Judge on 13.12.2000, the Court had to decide the application in accordance with provisions of 1986 Act and in view of prevailing law and that laid down by Apex Court in Arnit Das case ibid according to which the date of appearance of accused before the Court/Magistrate, and not the date of occurrence, was relevant date for determining the age of accused claiming himself to be a juvenile in conflict with law.

30. In view of the discussions made above, it may not be disputed that the relevant date for determining the age of juvenility is the date of occurrence 3.11.1990 and may not be the date of framing charges 23.1.1992, as held by sessions Court. It may also not be disputed that the claim of juvenility can be raised at any stage and even after conviction and sentence at appellate stage, in view of the provisions of 2000 Act as amended upto date by Amendment Act 33 of 2006 w.e.f. 22.8.2006. In the impugned order, the Additional Sessions Judge pretending to have placed reliance on Arnit Das case ibid, which lays down the date of appearance of accused before the Court to be relevant date for determining the juvenility has acted wrongly, illegally and arbitrarily in taking the date of framing of charges to be relevant, which was neither provided in 1986 Act or in case law allegedly relied by it or in any other case law. In taking above date as relevant the trial Court appears to have taken care in not taking any other date as relevant, as it was not finding him above 16 years on any date, prior to date of framing of charges.

31. However, if for the sake of arguments the relevant date for determining the juvenility of revisionist is deemed as 23.1.1992 when charges were framed, the revisionist had completed age of 16 years and had undisputedly attained majority before enforcement of 2000 Act. However despite his crossing the age of 16 years on 23.1.1992, since matter pending on the date of enforcement of 2000 Act as amended upto date and is still pending, his case is required to be considered under the provisions of Section 20 of 2000 Act, as per law laid down in Bharat Bhooshan case ibid.

32. The provisions of Sections 20 of Act, 2000 as have been reproduced earlier, makes special provision in respect of pending cases and in the case in hand, where the revisionist was juvenile on the date of commission of offence inspite of not finding him to be juvenile in conflict with law at the stage of final arguments in sessions trial, the Court was fully competent to proceed with passing of the judgment and in case of finding the revisionist guilty upon sufficient evidence, was competent to convict him and the only effect would have been that inspite of holding him guilty and convicting the juvenile accused he would not have been competent to sentence him with punishment, for passing which the juvenile had to be forwarded to Juvenile Justice Board for passing necessary orders in accordance with provisions of the Act.

33. In the case of Bharat Bhushan Vs. State of Himachal Pradesh, , in a case under Section 376 IPC the trial Court acquitted the juvenile and in Criminal Appeal before the High Court, where the plea of juvenility was raised for the first time, the High Court rejected the plea and allowed the appeal, holding the accused guilty and setting aside the acquittal order of Sessions Judge convicted the accused and sentenced him with rigorous imprisonment for five years and a fine of Rs. 50,000/-. The Apex Court in appeal against the conviction order passed by the High Court taking into consideration the provisions of Sections 2(1) and 20 of the 2000 Act held that since though the appellant was not a juvenile in 1986 Act having crossed age of 16 years but since the appeal was pending before the High Court on the date of enforcement of 2000, Act the matter is to be dealt with under Section 20 of the Act which required the High Court to record the finding about the guilt of the accused but stop as of passing an order of sentence against him.

34. In view of discussions made above, I have come to the conclusion that the Additional Sessions Judge has acted wrongly, illegally, arbitrarily and capriciously in passing the impugned order dated 13.12.2000 and treating the revisionist not a juvenile, on the date of framing of charges i.e. on 23.1.1992, which was selected as relevant date in place of date of occurrence 3.11.1990 or the date of surrender of revisionist before the Magistrate, 8.11.1990. In impugned order the sessions Judge despite observing that relevant date is date of surrender before Magistrate as per Arnit Das case went on to discuss the date of his first appearance after committal to be relevant, but ultimately selected the date of framing of charges 23.1.1992 as relevant date, considering the fact that as per school transfer certificate or medical report, the age of 16 years was not complete, on any earlier date before 23.1.1992, as described in chart above and so the date of occurrence or surrender, or committal or appearance before sessions after committal were wrongly, deliberately and arbitrarily ignored. The Additional Sessions Judge further acted wrongly, illegally and arbitrarily in ignoring the undisputed fact of granting of bail to revisionist by 1st Additional Sessions Judge on 2.9.1992 on his plea of being under 16 years of age as his date of birth was stated as 6.6.1975, and adopted a hyper-technical and illegal approach in rejecting the application on the ground of moving it belatedly at the stage of final arguments. The impugned order is not only wrong, illegal or incorrect but is based on surmises and conjectures and is arbitrary and perverse also and is liable to be set aside and the revision is liable to be allowed. The revision is allowed accordingly. The impugned order is set aside and the revisionist who was below 16 years of age as on date of commission of offence 3.11.1990 or on date of surrender before Magistrate 8.11.1990 as per his date of birth 6.6.1975 in school transfer certificate or as per report of duly constitutional Medical Penal Board dated 7.11.2000, is declared juvenile in conflict with law, as on the date of occurrence.

Let a copy of this order be sent to Court below for proceeding in accordance with the provisions of law.