Gurudutt Yadav @ Bal Narendra Kumar v. The State Of Bihar

Patna High Court CR. REV. No.455 of 2013 (2) dt.14-11-2013 2 apparent that though belatedly, ground of juvenility has been raised on behalf of petitioner and the learned lower court rejected the prayer simply on the ground that for the present, the case is lingering for statement of the accused. Apart from this, the issue has been raised belatedly after examination of all the prosecution witness. The court further opined that if the prayer is allowed, then it will be a herculian task to procure attendance of the witnesses before Juvenile Justice Board, and so, the court opined that such plea will be considered at the time of considering sentence.

4. It is the law which commands the ultimate fate of the proceedings. The law has to be recognized in a manner wherein it has been drafted by the legislation. The intention of the law is to be taken primarily. The Court is found forbidden from interpreting the law in different manner than that of what is perceived from plain reading of the statute. What the law says, what the law commands that has to be followed irrespective of the stage of the case. With regard to application of Juvenile Justice (Care and Protection of Children) Act, 2000, it needs no preface. It is a benevolent Act whereunder a juvenile being under age of 18 years and identified as a future of nation is being given an opportunity to mend to prove themselves as a good citizen of the country Patna High Court CR. REV. No.455 of 2013 (2) dt.14-11-2013 3 irrespective of their involvement in the crime. Nature of crime has been found irrelevant.

5. In the aforesaid background, earlier legislation was found insufficient to deal with extra ordinary situation and on account thereof, there happens to be introduction of Section-7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. For better appreciation the same is quoted below:- “Section 7A - Procedure to be followed when claim of juvenility is raised before any court.- (1)Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary(but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the 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.”

6. From the plain reading of the above referred Section- 7A, it is apparent that the legislature had erased the barrier of the Patna High Court CR. REV. No.455 of 2013 (2) dt.14-11-2013 4 stage of the case. By having an introduction of aforesaid Section, the juvenile in conflict with law has been given an opportunity to raise his plea and get the judgment of conviction scrapped even after having the litigation concluded in its finality. Therefore, the finding of the learned trial court that there should not be application of Juvenile Justice (Care and Protection of Children) Act, 2000 because the same has been raised at belated stage appears to be of no relevance. Whenever it is being raised, the same has to be taken into consideration and be decided in foremost manner.

7. The application of Section-7A of the Act has been considered in detail by the Hon’ble Apex Court in the case of Ashwani Kumar Saxena v. State of Madhya Pradesh as reported in (2013) 1 SCC 594 under paragraphs 18, 19 and 22 which are as follows:-

18. This Court in Mohan Mali and Another v. State of Madhya Pradesh [(2010) 6 SCC 669] has again considered the scope of Section 7A of the Act. That was a case where plea of juvenility was raised before this court by the convict undergoing sentence. The appellant therein was convicted under sections 302/34, 326/34 and 324/34 IPC and was sentenced to life imprisonment and had already undergone 9 years of imprisonment. In that case a copy of the birth certificate issued by the Chief Registrar (Birth and Death) Municipal Corporation, Dhar u/s 12 of the Birth and Death Registration Act 1969 maintained by the Corporation was produced. This Court noticed that as per that Patna High Court CR. REV. No.455 of 2013 (2) dt.14-11-2013 5 certificate the date of birth of the accused was 12.11.1976. After due verification, it was confirmed by the State of Madhya Pradesh that he was a juvenile on the date of commission of the offence and had already undergone more than the maximum sentence provided under Section 15 of the 2000 Act by applying Rule 98 of the 2007 Rules read with Section 15 and 64 of the 2000 Act. The accused was ordered to be released forthwith.

19. In Jabar Singh v Dinesh [(2010) 3 SCC 757], a two Judge Bench of this Court while examining the scope of Section 7A of the Act and Rule 12 of the 2007 Rules and Section 35 of the Indian Evidence Act took the view that the trial court had the authority to make an enquiry and take necessary evidence to determine the age. Holding that the High Court was not justified in exercise of its revisional jurisdiction to upset the finding of the trial court, remitted the matter to the trial court for trial of the accused in accordance with law treating him to be not a juvenile at the time of commission of the alleged offence. The court noticed that the trial court had passed the order rejecting the claim of juvenility of respondent No.1 therein on 14.02.2006, the Rules, including Rule 12 laying down the procedure to be followed in determination of the age of a juvenile in conflict with law, had not come into force. The court opined that the trial court was not required to follow the procedure laid down in Section 7A of the Act or Rule 12 of the Rules and therefore in the absence of any statutory provision laying down the procedure to be followed in determining a claim of juvenility raised before it, the Court had to decide the claim of juvenility on the materials or evidence brought on record by the parties and section 35 of the Evidence Act.

22. In Anil Agarwal v. State of West Bengal [(2011) 2 SCALE 429], this Court was examining the claim of juvenility made at a belated stage stating that the appellants were minors at the time of the alleged offence and hence should not be tried along with the adult co-accused. The trial court dismissed the appellant’s application as not maintainable as it had been filed at a belated stage. The High Court, in revision, while holding that the application had been made belatedly, granted liberty to appellants to raise their plea of Patna High Court CR. REV. No.455 of 2013 (2) dt.14-11-2013 6 juvenility and to establish the same before the Sessions Judge at the stage of the examination under section 313 Cr.P.C. Reversing the finding recorded by the High Court, this Court took the view that Section 7A of the Act, as it now reads, gives right to any accused to raise the question of juvenility at any point of time and if such an issue is raised, the Court is under an obligation to make an inquiry and deal with that claim. The court held Section 7A has to be read along with Rule 12 of the 2007 Rules. This Court, therefore, set aside the order of the High Court and directed the trial court to first examine the question of juvenility and in the event, the trial court comes to a finding that the appellants were minors at the time of commission of the offence, they be produced before the J.J. Board for considering their cases in accordance with the provisions of the 2000 Act.

8. Therefore, the order impugned is set aside. Petition is allowed. The matter is remitted to the learned lower court to determine the issue in terms of Juvenile Justice (Care and Protection of Children) Act, 2000 as well as rules framed thereunder. perwez (Aditya Kumar Trivedi, J)