KARAN @ FATIYA VERSUS THE STATE OF MADHYA PRADESH
KARAN @ FATIYA VERSUS THE STATE OF MADHYA PRADESH
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.572-573 OF 2019
KARAN @ FATIYA …APPELLANT
VERSUS
THE STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
VIKRAM NATH, J.
1. The present appeals assail the correctness of the
judgment and order dated 15.11.2018 whereby a Division
Bench of the High Court of Madhya Pradesh, Bench at
Indore, affirmed the death sentence awarded by the Trial
Court and at the same time dismissed the appeal preferred
by the appellant against his conviction and sentence
awarded by the Trial Court.
2
2. The present appellant was charged for offences under
sections 363, 376(2)(i) of the Indian Penal Code1
, sections
5(m)/6 of the POCSO Act and sections 302 and 201 IPC.
The Trial Court vide judgment dated 17.05.2018 convicted
the appellant for all the offences and awarded the following
sentences as against each of the offences:
Offence under
section
Sentence Fine
363 IPC 5 years RI Rs.1,000/-
376(2)(i) IPC Life imprisonment Rs.5,000/-
5(m)/6 of POCSO
Act
Life imprisonment Rs.5,000/-
302 IPC Death sentence Rs.5,000/-
201 IPC 5 years RI Rs.5,000/-
3. The appeal preferred by the appellant was dismissed
by the High Court and the death reference forwarded by
the Trial Court was affirmed, as already noted above.
1
In short, “IPC”
3
4. During the pendency of these appeals, the appellant
moved an application being I.A.No.43271 of 2019 claiming
juvenility and consequently the benefits available under
the provisions of the Juvenile Justice (Care and
Protection) Act, 20152. This application was apparently
filed under Section 9(2) of the 2015 Act. This Court, vide
order dated 28.09.2022 required the Trial Court to submit
its report after due inquiry as to whether the appellant was
a juvenile on the date when the offence in question was
committed. The order dated 28.09.2022 is reproduced
below:
“Pursuant to directions issued on the last occasion,
certain Reports/Documents have been placed on
record.
Without commenting on merits or demerits of the rival
submissions, we direct as under:
a. The copies of the record be sent to the concerned
Trial Court as early as possible in physical form as well
as in digitized form.
b. The accused shall be produced before the concerned
Trial Court within a week’s time.
2 The 2015 Act
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c. The Trial Court shall endeavour to consider whether
the appellant was juvenile as on the date when the
offence in question was committed.
d. For arriving at this conclusion, the Trial Court shall
be entitled to call for and consider all the relevant
documents as well as have the facility of medical
check-up of the appellant in a manner known to law.
e. The Report in that behalf shall be submitted in the
Registry of this Court within four weeks.
List this matter for further consideration along with
the Report in the week commencing 31st October
2022.”
5. Pursuant to the said order, a report has been received
from the Court of First Additional Sessions Judge,
Manawar, District Dhar, Madhya Pradesh dated
27.10.2022 running into 20 pages along with all the
material evidence both documentary and oral adduced
before it on the basis of which the report has been
submitted. As per the said report, the appellant’s date of
birth was found to be conclusively proved as 25.07.2002.
The date of the incident being 15.12.2017, the appellant
was 15 years 04 months and 20 days of age on the date of
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the incident. The operative part of the report is
reproduced below:
“It is found conclusively proved that date of birth of
the applicant/accused Karan is 25.07.2002. It is also
proved taking into account 25.07.2002 as his date of
birth, the applicant was 15 years 04 months 20 days
of age as on 15.12.2017, and being below 16 years of
age, he was Child as per section 2(12) of J.J. Act, 2015.
Accordingly, the inquiry proceedings are concluded.”
6. At the outset learned senior counsel for the appellant
has clarified that for the present he is only pressing the
plea of juvenility and if he fails on that count would
address on the issue of conviction and sentence. Further
based on the said report, learned senior counsel for the
appellant submitted firstly that the sentence awarded
cannot be given effect to under Section 9(2) of the 2015
Act. Secondly, it is submitted that from the date of the
arrest in December, 2017, the appellant has already
undergone incarceration of more than 5 years whereas
under section 18 of the 2015 Act, a juvenile below 16
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years, even if convicted for a heinous offence, the
maximum sentence that can be awarded is 3 years stay in
a special home. In view of the above, according to learned
senior counsel the appellant is liable to be released
forthwith.
7. Learned counsel for the State of Madhya Pradesh has
strenuously urged that the appellant be subjected to an
ossification test to determine the correct age, as according
to her, the documents filed during the inquiry before the
Trial Court are not covered under Section 94 of the 2015
Act, and therefore, the only option left was that an
ossification test be conducted by a medical board. No
other submission has been advanced on behalf of the
State.
8. Before considering the submissions advanced by
learned counsel for the parties, it would be necessary to
first consider the inquiry report submitted by the Trial
Court dated 27.10.2022. If the said report is accepted and
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approved, then the appellant would be declared to be a
child which may then entail necessary consequences as
per the 2015 Act. It would be relevant to note here that
no objection has been filed by the respondent-State to the
report submitted by the Trial Court. The only submission
advanced on behalf of the respondent-State is for getting
the ossification test conducted.
9. We have perused the report and also the material
evidence led before the Trial Court on the basis of which
the conclusion has been drawn by the Trial Court. The
report is based upon documentary evidence as also oral
evidence of the present head-mistress (IW-01), the retired
headmaster (IW-08), five teachers of the primary
institution (IW-02, IW-04, IW-07, IW-09 and IW-10) and
also the guardian of the appellant (IW-06). It would also
be pertinent to notice that the institution is not a private
institution but is a government primary school and this
Court does not find any reason to dis-believe or even doubt
the testimony of government servants both working and
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retired. In addition to the mark sheets by the institution,
there is also the date of birth certificate issued by the
institution (I-3). Further, the original Scholar register and
other documents were also produced before the Trial
Court in the inquiry. This Court, therefore, has no reason
to doubt the correctness of the conclusion arrived at by
the Trial Court regarding the date of birth of the appellant.
We, therefore, accept the report of the Trial Court and hold
that the appellant was aged 15 years, 4 months and 20
days on the date of the incident.
10. In order to test the submission of learned counsel for
the respondent-State, Section 94 of the 2015 Act which is
relevant is reproduced hereunder:
“94 Presumption and determination of age:
(1) Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought before
it under any of the provisions of this Act (other than
for the purpose of giving evidence) that the said person
is a child, the Committee or the Board shall record
such observation stating the age of the child as nearly
as may be and proceed with the inquiry under section
9
14 or section 36, as the case may be, without waiting
for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person
brought before it is a child or not, the Committee or
the Board, as the case may be, shall undertake the
process of age determination, by seeking evidence by
obtaining –
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted on
the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board 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.”
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11. On a careful perusal of the above noted provision and
the facts of the present case, the above argument of the
learned counsel for the State is liable to be rejected for the
following reasons:
a) firstly, that during the inquiry before the Trial Court,
the State did not take any objection whatsoever with
regard to the documents filed on behalf of the
appellant and the evidence led on behalf of the
appellant so much so that the State did not even crossexamine the witnesses who were examined in the
inquiry. Permitting the State to raise such an
objection now once the conclusive finding has been
recorded by the Trial Court after an elaborate inquiry
would be unjust and not warranted. The State had full
opportunity to raise such a plea before the Trial Court
in the inquiry and then it was for the Trial Court to
take a call as to whether any ossification test was
necessary or not;
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b) Secondly, ossification test will only give a broad
assessment of the age. It cannot give an exact age.
There is also an element of margin of plus or minus 1
to 2 years. Even if we permit the said test, it does not
lead us anywhere. It will have no bearing on the
assessment made by the Trial Court after the inquiry;
c) Thirdly, the first preference for determination of
age is the birth certificate issued by the school or a
matriculation certificate. Although it has been
submitted that no birth certificate of the school was
submitted, learned counsel for the appellant has
pointed out from the documents attached to the report
that in addition to the mark sheets and the school
leaving certificate, the birth certificate was also filed
which is Annexure I-3 to the report. It is in the
absence of the first category of documents being not
available that the birth certificate from the municipal
corporation is to be considered; and
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d) Lastly, if under the first and second columns,
documents are not available, then reference to medical
board and holding of an ossification test comes into
play.
12. In the present case, there being birth certificate from
the school available and that too a government primary
school, we do not find any reason to doubt its correctness
and all the more when it has been duly proved in the
inquiry before the Trial Court. Thus, the objections raised
by the learned counsel for the State are liable to be
rejected.
13. The next question is as to what relief the appellant
can be granted in view of the fact that he has been held to
be a child and that too below 16 years of age under the
2015 Act. In this context Section 9 of the 2015 Act would
be relevant. The same is reproduced hereunder:
“9. Procedure to be followed by a Magistrate who
has not been empowered under this Act.—
(1) When a Magistrate, not empowered to exercise the
powers of the Board under this Act is of the opinion that
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the person alleged to have committed the offence and
brought before him is a child, he shall, without any
delay, record such opinion and forward the child
immediately along with the record of such proceedings
to the Board having jurisdiction.
(2) In case a person alleged to have committed an
offence claims before a court other than a Board, that
the person is a child or was a child on the date of
commission of the offence, or if the court itself is of the
opinion that the person was a child on the date of
commission of the offence, the said court shall make an
inquiry, take such evidence as may be necessary (but
not an affidavit) to determine the age of such person,
and shall record a finding on the matter, stating the age
of the person as nearly as may be:
Provided that such a claim may be raised before any
court and it shall be recognised at any stage, even after
final disposal of the case, and such a claim shall be
determined in accordance with the provisions
contained in this Act and the rules made thereunder
even if the person has ceased to be a child on or before
the date of commencement of this Act.
(3) If the court finds that a person has committed an
offence and was a child on the date of commission of
such offence, it shall forward the child to the Board for
passing appropriate orders and the sentence, if any,
passed by the court shall be deemed to have no effect.
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(4) In case a person under this section is required to be
kept in protective custody, while the person’s claim of
being a child is being inquired into, such person may
be placed, in the intervening period in a place of safety.”
14. A perusal of the aforesaid section firstly gives a right
to a person alleged to have committed an offence to claim
that he is a child on the date of commission of offence and
if such a claim is raised, the Court concerned shall make
an inquiry, take such evidence as may be necessary other
than the affidavit to determine the age of such person. The
proviso to sub-section (2) further makes it clear that such
a claim can be raised before any Court and the same could
be recognised at any stage even after the case has been
finally decided. The claim so made would be determined
in accordance with the provisions of the 2015 Act and the
rules made thereunder even if such person has seized to
be a child whether on or before the commencement of
2015 Act. The law provides full coverage to a person who
is established to be a child on the date of the offence to
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avail the benefits admissible to a child under the 2015 Act
even if the case has been finally decided and also such
person has attained majority. Further, sub-section (3)
provides that if it is found in the inquiry that such person
was a child on the date of commission of such offence then
the Court is required to forward the child to the Juvenile
Justice Board3 for passing appropriate orders and further
if any sentence has been imposed by the Court, the same
shall be deemed to have no effect. In view of the above
statutory provisions and in view of the findings recorded,
the appellant having been held to be a child on the date of
commission of the offence, the sentence imposed has to be
made ineffective.
15. The relief to be extended to the appellant may be
examined through a different perspective also, that is,
whether he has already undergone maximum sentence
which can be awarded against a child in conflict with law
3
In short, “JJB”
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for committing a heinous offence and who is below age of
16 years. Section 18 of the 2015 Act would be relevant in
this respect and the same is reproduced hereunder:
“18. Orders regarding child found to be in conflict
with law.—
(1) Where a Board is satisfied on inquiry that a child
irrespective of age has committed a petty offence, or a
serious offence, or a child below the age of sixteen
years has committed a heinous offence, then,
notwithstanding anything contrary contained in any
other law for the time being in force, and based on the
nature of offence, specific need for supervision or
intervention, circumstances as brought out in the
social investigation report and past conduct of the
child, the Board may, if it so thinks fit,—
(a) allow the child to go home after advice or
admonition by following appropriate inquiry and
counselling to such child and to his parents or the
guardian;
(b) direct the child to participate in group counselling
and similar activities;
(c) order the child to perform community service under
the supervision of an organisation or institution, or a
specified person, persons or group of persons
identified by the Board;
(d) order the child or parents or the guardian of the
child to pay fine:
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Provided that, in case the child is working, it may be
ensured that the provisions of any labour law for the
time being in force are not violated;
(e) direct the child to be released on probation of good
conduct and placed under the care of any parent,
guardian or fit person, on such parent, guardian or fit
person executing a bond, with or without surety, as
the Board may require, for the good behaviour and
child’s well-being for any period not exceeding three
years;
(f) direct the child to be released on probation of good
conduct and placed under the care and supervision of
any fit facility for ensuring the good behaviour and
child’s well-being for any period not exceeding three
years;
(g) direct the child to be sent to a special home, for
such period, not exceeding three years, as it thinks fit,
for providing reformative services including education,
skill development, counselling, behaviour modification
therapy, and psychiatric support during the period of
stay in the special home:
Provided that if the conduct and behaviour of the
child has been such that, it would not be in the child’s
interest, or in the interest of other children housed in
a special home, the Board may send such child to the
place of safety.
(2) If an order is passed under clauses (a) to (g) of subsection (1), the Board may, in addition pass orders to—
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(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or
appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment
under section 15 pass an order that there is a need for
trial of the said child as an adult, then the Board may
order transfer of the trial of the case to the Children’s
Court having jurisdiction to try such offences.”
16. On a perusal of the aforesaid Section 18 of the 2015
Act, it is to be noticed that the JJB having found a child
to be in conflict with law who may have committed a petty
or serious offence and where heinous offence is
committed, the child should be below 16 years, can pass
various orders under clauses (a) to (g) of sub-section (1)
and also sub-section (2). However, the net result is that
whatever punishment is to be provided, the same cannot
exceed a period of three years and the JJB has to take full
care of ensuring the best facilities that could be provided
to the child for providing reformative services including
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education, skill development, counselling and psychiatric
support.
17. In the present case, the appellant is held to be less
than 16 years, and therefore, the maximum punishment
that could be awarded is upto 3 years. The appellant has
already undergone more than 5 years. His incarceration
beyond 3 years would be illegal, and therefore, he would
be liable to be released forthwith on this count also.
18. Having considered the facts of the case and the
findings recorded above, it would also be appropriate to
briefly deal with the case law on the point as to whether
once an accused after conviction at the stage of appeal is
held to be a juvenile/child under the provisions of the
2015 Act, what would be the status of the trial, the
conviction and sentence recorded by the Trial Court and
the appellate Courts. Whether the trial itself would stand
vitiated for lack of jurisdiction by the regular Sessions
Court and it would be the JJB alone which could make an
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inquiry into the offence committed based upon the
evidence led by the prosecution. If the inquiry has not
been conducted by the JJB, then whether the entire
proceedings need to be quashed or only the sentencing
aspect would require consideration in accordance with the
2015 Act.
19. We may note here at the outset that the appellant for
the present has chosen not to challenge the conviction but
is only claiming juvenility and consequently the benefit of
sentence provided under the 2015 Act, reserving his right
to address on conviction and sentence if he fails on the
preliminary issue of juvenility.
20. There are a series of judgments on the said issue.
Some have set aside the conviction, sentence and have
terminated the proceedings, others have upheld the
conviction but on the basis of sentence already undergone
being more than the maximum permissible under the
Juvenile Justice (Care and Protection of Children) Act,
21
20004 have directed for release of the accused and third,
where after maintaining the conviction, this Court has
referred the matter to the JJB for passing appropriate
orders on sentence. All the judgments delivered earlier
which are briefly discussed hereunder relate to the 2000
Act. Present case falls under the 2015 Act as the offence
itself is of the year 2017.
21. In the case of Jitendra Singh alias Babboo Singh and
another vs. State of Uttar Pradesh5
, a two-Judge Bench
of this Court confirmed the conviction but as the appellant
therein could only be awarded imposition of fine, the
existing fine of Rs.100/- was found to be grossly
inadequate and accordingly, the matter was remitted to
the JJB for determining the appropriate quantum of fine
that should be levied on the appellant and the
compensation that should be awarded to the family of the
victim.
4
In short “2000 Act”
5 2013 (11) SCC 193
22
22. Justice Madan B. Lokur, the first author of the
judgment dealt with the issue as to whether the conviction
could be sustained by this Court or it was only the
sentence which was to be dealt with in accordance with
the 2000 Act. Almost all the previous judgments were
referred to in paragraphs 24, 24.1 to 24.7, 25, 25.1 to
25.2, 26, 26.1 to 26.2 and 27 of the report with respect to
all the four categories of the cases wherein different views
have been taken by this Court. The first category was
where conviction was upheld but sentence quashed. The
second category was where conviction was upheld but
sentence was modified to the period already undergone.
The third category was where conviction and sentence
both were set aside and the fourth category was where the
conviction was upheld and the matter referred to the JJB
for awarding a suitable sentence. In paragraph 28 of the
report Justice Lokur sums up the four categories.
Further in paragraph 29, reference is made to section 20
of the 2000 Act and it was finally concluded in paragraph
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30 that the matter needs to be examined on merits and if
the juvenile is found guilty of the offence, he could not be
allowed to go unpunished but considering the provisions
of the 2000 Act, the question of sentence must be left to
the JJB. It would be proper to reproduce paragraphs 28,
29 and 30 of the report of Justice Lokur, which read as
follows:
“28. The sum and substance of the above discussion
is that in one set of cases this Court has found the
juvenile guilty of the crime alleged to have been
committed by him but he has gone virtually
unpunished since this Court quashed the sentence
awarded to him. In another set of cases, this Court has
taken the view, on the facts of the case that the
juvenile is adequately punished for the offence
committed by him by serving out some period in
detention. In the third set of cases, this Court has
remitted the entire case for consideration by the
jurisdictional Juvenile Justice Board, both on the
innocence or guilt of the juvenile as well as the
sentence to be awarded if the juvenile is found guilty.
In the fourth set of cases, this Court has examined the
case on merits and after having found the juvenile
guilty of the offence, remitted the matter to the
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jurisdictional Juvenile Justice Board on the award of
sentence.
29. In our opinion, the course to adopt is laid down in
Section 20 of the Juvenile Justice (Care and Protection
of Children) Act, 2000. This 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
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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.”
30. It is clear that the case of the juvenile has to be
examined on merits. If it found that the juvenile is
guilty of the offence alleged to have been committed,
he simply cannot go unpunished. However, as the law
stands, the punishment to be awarded to him or her
must be left to the Juvenile Justice Board constituted
under the Juvenile Justice (Care and Protection of
Children) Act, 2000. This is the plain requirement of
Section 20 of the Juvenile Justice (Care and Protection
of Children) Act, 2000. In other words, Ashwani Kumar
Saxena (2012) 9 SCC 750, should be followed.”
23. Justice T.S. Thakur while concurring with the view
taken by Justice Lokur, in his supplementing opinion also
dealt with this aspect of the matter and in paragraph 82
of the report was of the view that insofar as the conviction
was concerned, the same could be examined by this Court,
however, on the sentence part, the benefit admissible
26
under the 2000 Act ought to be extended. Paragraph 82 of
the report is reproduced hereunder: -
“82. A careful reading of the above would show that
although a claim of juvenility can be raised by a person
at any stage and before any court, upon such court
finding the person to be a juvenile on the date of the
commission of the offence, it has to forward the
juvenile to the Board for passing appropriate orders
and the sentence, if any, passed shall be deemed to
have (sic no) effect. There is no provision suggesting,
leave alone making it obligatory for the court before
whom the claim for juvenility is made, to set aside the
conviction of the juvenile on the ground that on the
date of commission of the offence he was a juvenile,
and hence not triable by an ordinary criminal court.
Applying the maxim expressio unius est exclusion
alterius, it would be reasonable to hold that the law
insofar as it requires a reference to be made to the
Board excludes by necessary implication any intention
on the part of the legislature requiring the courts to
set aside the conviction recorded by the lower court.
Parliament, it appears, was content with setting aside
the sentence of imprisonment awarded to the juvenile
and making of a reference to the Board without
specifically or by implication requiring the court
concerned to alter or set aside the conviction. That
perhaps is the reason why this Court has in several
27
decisions simply set aside the sentence awarded to the
juvenile without interfering with the conviction
recorded by the court concerned and thereby complied
with the mandate of Section 7-A(2) of the Act.”
24. Similar view was taken by a two-Judge Bench of this
Court in the case of Mahesh vs. State of Rajasthan and
others6
, wherein this Court confirmed the conviction.
However, the sentence imposed was modified to the period
undergone. The aforesaid judgment relies upon the law
laid down in the case of Jitendra (supra). After framing
the issue as to whether the validity/correctness of the
conviction recorded by Trial Court could be maintained,
this Court proceeded to give due consideration in
paragraph nos. 4, 5 and 6 of the judgment. Thereafter the
Bench proceeded to consider the merits of the conviction
and upheld the same in paragraph no.7. Paragraph nos.
4 to 7 of the report are reproduced hereunder:
“4. In the aforesaid facts, two questions arise for
determination in the present appeals before us. The
6
(2018) SCCOnline SC 3655
28
first is with regard to the validity/correctness of the
conviction recorded by the learned trial Court and
affirmed by the High Court and, secondly, if the
conviction to be maintained what should be the
appropriate measure of punishment/sentence and
whether the same should be imposed by this Court or
the matter be remanded to the Juvenile Justice Board
in accordance with the provisions of Section 20 of the
Act of 2000.
5. The position in law in this regard is somewhat
unsettled as has been noticed and dealt with by this
Court in Jitendra Singh alias Babboo Singh and
another versus State of Uttar Pradesh wherein in
paragraphs 24 to 27 four categories of cases have been
culled out where apparently different approaches had
been adopted by this Court. The net result is summed
up in paragraph 28 of the aforesaid report which
explains the details of the categorization made in the
earlier paragraphs of the said report. Paragraph 28 of
the said report, therefore, would require a specific
notice and is reproduced below:
“28. The sum and substance of the above
discussion is that in one set of cases this Court
has found the juvenile guilty of the crime alleged
to have been committed by him but he has gone
virtually unpunished since this Court quashed
the sentence awarded to him. In another set of
cases, this Court has taken the view, on the
29
facts of the case that the juvenile is adequately
punished for the offence committed by him by
serving out some period in detention. In the
third set of cases, this Court has remitted the
entire case for consideration by the
jurisdictional Juvenile Justice Board, both on
the innocence or guilt of the juvenile as well as
the sentence to be awarded if the juvenile is
found guilty. In the fourth set of cases, this
Court has examined the case on merits and
after having found the juvenile guilty of the
offence, remitted the matter to the jurisdictional
Juvenile Justice Board on the award of
sentence.”
6. The validity of the conviction in respect of the
incident which occurred almost two decades back, in
our considered view, ought to be decided in these
appeals and the entire of the proceedings including the
punishment/sentence awarded should not be
interfered with on the mere ground that the accused
appellants were juveniles on the date of commission of
the alleged crime. Judicial approaches must always be
realistic and have some relation to the ground
realities. We, therefore, adopt one of the possible
approaches that has been earlier adopted by this
Court in the four categories of cases mentioned above
to examine the correctness of the conviction of the
30
accused appellants under the provisions of the IPC, as
noticed above.
7. In this regard, having perused the materials on
record we find no ground whatsoever to take a view
different from what has been recorded by the learned
trial Court and affirmed by the High Court. The
conviction of the accused appellants under Sections
323, 324, 325, 427, 455 read with Section 149 IPC
accordingly shall stand affirmed.”
25. In the case of Satya Deo alias Bhoorey vs. State of
Uttar Pradesh7
, following the ratio and legal position laid
down in Jitendra Singh (supra), this Court upheld the
conviction and after setting aside the sentence of life
imprisonment awarded to the appellant, it was directed
that the jail authorities would produce the appellant
before the JJB within seven days, and thereafter, the JJB
would pass appropriate orders regarding the detention
and custody with respect to the appellant therein.
26. We may also refer to the judgment of this Court in the
case of Raju vs. State of Haryana8
, wherein Justice
7
(2020) 10 SCC 555
8
(2019) 14 SCC 401
31
Mohan M. Shantanagoudar speaking for himself, Justice
N.V. Ramana (as he then was) and Justice Indira
Banerjee, set aside the conviction and sentence of the
appellant therein and as the appellant therein had already
undergone almost six years’ incarceration but had been
released on bail, the bail bonds were discharged and all
proceedings against the appellant were declared to have
terminated.
27. In the aforesaid case, the appellant had not taken the
plea of juvenility before the Trial Court, however, such plea
was raised before the High Court but the same was
rejected. However, this Court got an inquiry conducted by
the Registrar (Judicial) of this Court who found him to be
aged less than 18 years. The judgment in this case mainly
dealt with the issue as to whether the report of Registrar
(Judicial) of this Court could be accepted over and above
the finding of the High Court which was different. The
judgment proceeds to deal with this issue and ultimately
comes to the conclusion that this could be done provided
32
this Court itself tests the correctness of the report of the
Registrar (Judicial). It is only in the penultimate
paragraph no. 27 while allowing the appeal it granted the
relief of setting aside the conviction, sentence and further
terminated the entire proceedings. There is no prior
discussion on the issue whether conviction was required
to be set aside or not on this technical ground. Merits of
the conviction was not gone into. No ratio is laid down in
the said case on this issue. Only while granting relief,
conviction has also been set aside.
28. Following the above judgment in the case of Raju
(supra), a two-judge Bench of this Court in the case of
Ashok Kumar Mehra and Another Vs. State of Punjab
and Others9 set aside the judgment of conviction and
sentence awarded to appellant no. 2 therein who had
claimed to be a juvenile. Paragraph No. 14 of the said
judgment which grants the relief is reproduced herein:
9
In 2019 (6) SCC 132
33
“In view of the foregoing discussion, we are of the
considered opinion that since Appellant 2 was a
juvenile on the date of commission of the offence and
though till date he has already undergone
considerable jail sentence partly as an undertrial and
partly as a convict, yet the appeal filed by Appellant 2
has to be allowed as was done in the case of Raju
(supra) without going into the merits of the case and
passing any other consequential order in that regard.”
29. It will be pertinent to mention that in this judgment
also there is no discussion with regard to the issue as to
whether the conviction should be set aside. This judgment
also does not lay down any ratio that if with respect to a
juvenile a trial has been conducted by a Sessions Court
without the accused having claimed juvenility before it,
conviction could be set aside as being vitiated in law if
subsequently it is held that the accused was a juvenile.
30. The above judgments relate to an offence covered by
either the Juvenile Justice Act, 198610 or the 2000 Act. We
now proceed to briefly discuss the provisions under the
10 “the 1986 Act”
34
2015 Act. Section 9 of the 2015 Act is already reproduced
in the earlier part of this judgment. According to subsection (3) of section 9 of the 2015 Act, the Court which
finds that the person who committed the offence was a
child on the date of commission of such offence would
forward the child to the JJB for passing appropriate orders
and sentence, if any, passed by the Court shall be deemed
to have no effect. This does not specifically or even
impliedly provide that the conviction recorded by any
Court with respect to a person who has subsequently after
the disposal of the case found to be juvenile or a child,
would also lose its effect rather it is only the sentence if
any passed by the Court would be deemed to have no
effect.
31. There is another reason why a trial conducted and
conviction recorded by the Sessions Court would not be
held to be vitiated in law even though subsequently the
person tried has been held to be a child.
35
32. The intention of the legislature was to give benefit to
a person who is declared to be a child on the date of the
offence only with respect to its sentence part. If the
conviction was also to be made ineffective then either the
jurisdiction of regular Sessions Court would have been
completely excluded not only under section 9 of the 2015
Act but also under section 25 of the 2015 Act, provision
would have been made that on a finding being recorded
that the person being tried is a child, a pending trial
should also be relegated to the JJB and also that such trial
would be held to be null and void. Instead, under section
25 of the 2015 Act, it is clearly provided that any
proceeding pending before any Board or Court on the date
of commencement of the 2015 Act shall be continued in
that Board or Court as if this Act had not been enacted.
Section 25 is reproduced hereunder:
“25. Special provision in respect of pending cases.
- Notwithstanding anything contained in this Act, all
proceedings in respect of a child alleged or found to be
in conflict with law pending before any Board or court
36
on the date of commencement of this Act, shall be
continued in that Board or court as if this Act had not
been enacted.”
33. Having considered the statutory provisions laid down
in section 9 of the 2015 Act and also section 7A of the
2000 Act which is identical to section 9 of the 2015 Act,
we are of the view that merits of the conviction could be
tested and the conviction which was recorded cannot be
held to be vitiated in law merely because the inquiry was
not conducted by JJB. It is only the question of sentence
for which the provisions of the 2015 Act would be attracted
and any sentence in excess of what is permissible under
the 2015 Act will have to be accordingly amended as per
the provisions of the 2015 Act. Otherwise, the accused
who has committed a heinous offence and who did not
claim juvenility before the Trial Court would be allowed to
go scot-free. This is also not the object and intention
provided in the 2015 Act. The object under the 2015 Act
dealing with the rights and liberties of the juvenile is only
37
to ensure that if he or she could be brought into the main
stream by awarding lesser sentence and also directing for
other facilities for welfare of the juvenile in conflict with
law during his stay in any of the institutions defined under
the 2015 Act.
34. In view of the above discussion and the position in
law as laid down by the aforesaid judgments and many
others referred to in the above judgments, we approve the
view taken by this court in the case of Jitendra Singh
(supra), Mahesh (supra) and Satya Deo (supra).
35. For all the reasons recorded above, it is ordered as
follows:
The conviction of the appellant is upheld; however,
the sentence is set aside. Further as the appellant at
present would be more than 20 years old, there would be
no requirement of sending him to the JJB or any other
child care facility or institution. Appellant is in judicial
38
custody. He shall be released forthwith. The impugned
judgement shall stand modified to the aforesaid extent.
36. Both the appeals stand partly allowed.
37. Pending applications, if any, are disposed of.
……................................J.
[B.R. GAVAI]
.………….........................J.
[VIKRAM NATH]
.………….........................J.
[SANJAY KAROL]
NEW DELHI
MARCH 03, 2023.
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