REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 573 OF 2005

LAKHAN LAL … APPELLANT

VERSUS

STATE OF BIHAR … RESPONDENT

WITH

CRIMINAL APPEAL NO.138 OF 2011

ARISING OUT OF

SPECIAL LEAVE PETITION(CRL) NO.4724 OF 2004

WITH

CRIMINAL MISCELLANE OUS PETITION NO. 1049 OF 2011

PAPPU LAL @ MANOJ KUMAR SRIVASTAVA … APPELLANT

VERSUS

STAE OF BIHAR … RESPONDENT

JUDGMENT

B. SUDERSHAN R EDDY, J.

1.Criminal Miscellaneous Petition in Special Leave Petition

(Crl.) No. 4724 of 2004 has been taken up and allowed.

The Special Leave Petition shall stand restored to the file.

Leave granted.

2.These appeals are directed against the common judgment

and order dated 27

th

April, 2004 of the High Court of

Judicature at Patna in Criminal Appeal Nos. 649 of 1987

and 14 of 1988 whereby the High Court dismissed the

Criminal Appeals filed by the appellants, confirmed their

conviction for the offence punishable under Section 302

read with Section 34 of I.P.C. for committing murder of

one Surender Choudhary and accordingly sentenced them

to undergo life imprisonment.

3.When the matter came up for hearing, Shri K.V.

Vishwanathan, learned senior counsel appearing for the

appellant Lakhan Lal, submitted that since at the time of

commission of the said offence, the appellant had not

completed 18 years of age, he was a ‘juvenile’ within the

meaning of Section 2(k) of the Juvenile Justice (Care and

Protection of Children) Act, 2000 (hereinafter referred to

as “the 2000 Act”) and therefore, the order of sentence

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passed against the appellant for the offence committed by

him under Section 302 read with Section 34, IPC is to be

set aside.

4.We find that the conviction of the appellants is based

upon the evidence of Malti Devi (PW1), wife, Sumitra Devi

(PW2), mother and Lakhan Choudhary (informant) (PW3),

father of the deceased Surender Choudhary who were all

eyewitnesses to the incident and there is absolutely no

reason to disbelieve their evidence. Dr. R.P. Jaiswal (PW5)

who conducted the postmortem examination over the

dead body of Surender Choudhary found ante mortem

injuries on his person and according to him, the cause of

death was shock and hemorrhage as a result of the

injuries caused by sharp cutting penetrating substance

such as churra (dagger). Those injuries were attributed

to have been caused by the appellants Pappu Lal who was

armed with a churra and Lakhan Lal who was armed with

a country made pistol. These facts need not detain us any

further since the conviction of the appellants for the

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offence punishable under Section 302 read with Section

34, IPC is not in issue.

5.Sofaras Pappu Lal @ Manoj Kumar Srivastava, the

appellant in SLP (crl) No. 4724 of 2004 is concerned, the

special leave petition preferred by him was dismissed by

this Court on 8

th

April, 2005 with the following order:

“It is admitted that neither The Juvenile Justice

(Care and Protection of Children) Act, 2000 (56

of 2000) nor the Juvenile Justice Act, 1986 nor

the Bihar Childrens Act would apply as on the

date of the occurrence the appellant was 16

years and 10 months old. On merits we see no

reason to interfere. Accordingly, the petition shall

stand dismissed”.

In fact, on the date of occurrence, that is to say 9.5.1985,

the appellant was aged about 16 years and 5 months as the

same is evident from the certificate dated 6.8.1983 of the

Bihar School Education Board wherein the date of birth of

Pappu Lal is recorded as 9.12.1968. This certificate is made

available for the perusal of the court.

6.The appellant Pappu Lal, relying on the judgment of this

Court in Dharambir Vs. State (NCT of Delhi) & Anr.

1

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(2010) 5 SCC 344

4

filed an application to recall the order dated 8

th

April, 2005

passed by this Court dismissing his Special Leave Petition

and to restore the special leave petition to its original

number. The application is ordered accordingly and that is

how we have taken up both the appeals for hearing.

7.There is no dispute whatsoever before us as it is fairly

conceded by the learned counsel Shri Manish Kumar,

appearing for Shri Gopal Singh, learned counsel for the

State of Bihar that both the appellants were minors as on

the date of incident i.e., 9

th

May, 1985. The appellant

Lakhan Lal was aged about 16 years 10 months and the

other appellant Pappu Lal was aged about 16 years 5

months as on the date of occurrence of the crime. Thus

the claim made by the appellants that they were

‘juveniles’ as on the date of occurrence of the crime

remains free from any controversy.

8.The question that arises for our consideration is whether

or not the appellants who were admittedly not ‘juvenile’

within the meaning of the Juvenile Justice Act, 1986 (for

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short “the 1986 Act”) when the offences were committed

but had not completed 18 years of age on that date are

entitled for the benefit and protection under the

provisions of the 2000 Act? Whether they are entitled to

be declared as ‘juvenile’ in relation to the offences

committed by them?

9.The issue with regard to the date, relevant for

determining the applicability of either of the two Acts is no

longer res integra. A Constitution Bench of this Court in

Pratap Singh Vs. State of Jharkhand & Anr.

2

in its

authoritative pronouncement held that the relevant date

for determining the age of a person who claims to be a

juvenile/child would be the date on which the offence has

been committed and not the date when he is produced

before the authority or in the Court.

10.The Act that was in operation as on the date of the

incident was Bihar Children’s Act. The Act of 1986 came

into operation on 3

rd

December, 1986. The said Act which

defines a ‘juvenile’ as a boy who has not attained the age

2

(2005) 3 SCC 551

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of sixteen years or a girl who has not attained the age of

eighteen years. Section 63 of the 1986 Act provides

“Repeal and savings” that, if immediately before the date

on which the Act comes into force in any State, there is in

force in that State, any law corresponding to the Act, that

law shall stand repealed on the said date. The said

provision further states that any right, privilege,

obligation or liability acquired, accrued or incurred under

any law so repealed; or any penalty, forfeiture or

punishment incurred in respect of any offence committed

against any law so repealed; and the legal proceedings in

respect of any such right, privilege, obligation will

continue as if the 1986 Act had not been passed.

11.The fact remains neither in the decision of the Sessions

Court dated 9.12.1987 which noted that the appellants

were aged about 20 years which could imply that they

were under the age of 18 at the time of commission of the

offence, nor in the High Court judgment as to the plea of

‘juvenile’ has been discussed.

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12.The 2000 Act came into force w.e.f. 1

st

April, 2001. It is

an act to consolidate and amend the law relating to

juveniles in conflict with law and children in need of care

and protection, by providing for proper care, protection

and treatment by catering to their development needs,

and by adopting a child-friendly approach in the

adjudication and disposition of matters in the best interest

of children and for their ultimate rehabilitation and for

matters connected therewith or incidental thereto. It will

be useful to have a look at the Statement of Objects and

Reasons:

A review of the working of the Juvenile Act, 1986

(53 of 1986) would indicate that much greater

attention is required to be given to children in

conflict with law or those in need of care and

protection. The justice system as available for

adults is not considered suitable for being applied

to a juvenile or the child or any one on their

behalf including the police, voluntary

organizations, social workers, or parents and

guardians, throughout the country. There is also

an urgent need for creating adequate

infrastructure necessary for the implementation of

the proposed legislation with a larger involvement

of informal systems specially the family, the

voluntary organizations and the community.

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In this context, the following further proposals

have been made—

(i) to lay down the basic principles for

administering justice to a juvenile or the

child in the Bill;

(ii) to make the juvenile system meant for a

juvenile or the child more appreciative of

the developmental needs in comparison to

criminal justice system as applicable to

adults;

(iii) to bring the juvenile law in conformity with

the United Convention on the Rights of the

Child;

(iv) to prescribe a uniform age of eighteen

years for both boys and girls;

(v) to ensure speedy disposal of cases by the

authorities envisaged under this Bill

regarding juvenile or the child within a

time limit of four months;

(vi)to spell out the role of the State as a

facilitator rather than doer by involving

voluntary organizations and local bodies in

the implementation of the proposed

legislation;

(vii)to create special juvenile police units with

a humane approach through sensitization

and training of police personnel;

(viii)to enable increased accessibility to a

juvenile or the child by establishing

Juvenile Justice Boards and Child Welfare

Committees and Homes in each district or

group of districts;

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(ix) to minimize the stigma and in keeping with

the developmental needs of the juvenile or

the child, to separate the Bill into two

parts—one for juveniles in conflict with law

and the other for the juvenile or the child

in need of care and protection;

(x) to provide for effective provisions and

various alternatives for rehabilitation and

social reintegration such as adoption,

foster care, sponsorship and aftercare of

abandoned, destitute, neglected and

delinquent juvenile and child.

The Bill seeks to repeal and re-enact the Juvenile

Justice Act, 1986 with a view to achieving the

above objects.

13.Section 2(k) of the 2000 Act provides that ‘juvenile’ or

‘child’ means a person who has not completed eighteenth

year of age and Section 2(l) says that ‘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.

14.In Pratap Singh (supra), the Constitution Bench taking

into consideration the provisions of Sections 3 and 20 and

the relevant definitions of ‘juvenile’ in Section 2(k) of the

2000 Act, held that the 2000 Act would be applicable in a

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pending proceeding in any Court/Authority initiated under

the 1986 Act and is pending when the 2000 Act came into

force and the person concerned has not completed 18

years of age as on 1.4.2001. It is further held “…even

where an inquiry has been initiated and the juvenile

ceases to be a juvenile i.e. crosses the age of 18 years,

the inquiry must be continued and orders made in respect

of such person as if such person had continued to be a

juvenile”.

15.In the present case, when the inquiry has been initiated

against the appellants herein, they were admittedly

‘juvenile’ even under the provisions of 1986 Act but this

issue has been ignored by the trial Court and as well as

the appellate Court. There is no dispute whatsoever that

both the appellants have crossed the age of 18 years, yet

both the appellants, for the purposes of hearing of this

appeal continued as if they were to be ‘juvenile’. In

Dharambir (supra) this Court took the view:

“It is plain from the language of the Explanation to

Section 20 that in all pending cases, which would

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include not only trials but even subsequent

proceedings by way of revision or appeal, etc., the

determination of juvenility of a juvenile has to be

in terms of Clause (l) of Section 2, even if the

juvenile ceases to be a juvenile on or before 1

st

April, 2001, when the Act of 2000 came into force,

and the provisions of the Act would apply as if the

said provision had been in force for all purposes

and for all material times when the alleged offence

was committed”.

It is further held:

“It is, thus, manifest from a conjoint reading of

Sections 2(k), 2(l), 7A, 20 and 49 of the Act of 2000,

read with Rules 12 and 98 of the Juvenile Justice

(Care and Protection of Children) Rules, 2007 that

all persons who were below the age of eighteen

years on the date of commission of the offence

even prior to 1

st

April, 2001 would be treated as

juveniles even if the claim of juvenility is raised

after they have attained the age of eighteen years

on or before the date of the commencement of the

Act of 2000 and were undergoing sentences upon

being convicted. In the view we have taken, we

are fortified by the dictum of this Court in a recent

decision in Hari Ram v. State of Rajasthan and

Anr. (2009) 13 SCC 211”.

16.Thus this is the complete answer for the determination of

the issues that have arisen for our consideration.

17.The fact remains that the issue as to whether the

appellants were juvenile did not come up for consideration

for whatever reason, before the Courts below. The

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question is whether the same could be considered by this

Court at this stage of the proceedings. A somewhat

similar situation had arisen in Umesh Singh & Anr. Vs.

State of Bihar

3

wherein this Court relying upon the

earlier decisions in Bhola Bhagat Vs. State of Bihar

4

,

Gopinath Ghosh Vs. State of W.B.

5

and Bhoop Ram

Vs. State of U.P.

6

while sustaining the conviction of the

appellant therein under all the charges, held that the

sentences awarded to them need to be set aside. It was

also a case where the appellant therein was aged below

18 years and was a child for the purposes of the Bihar

Children Act, 1970 on the date of the occurrence. The

relevant paragraph reads as under:

“So far as Arvind Singh, appellant in

Crl.A.No.659/99, is concerned, his case stands

on a different footing. On the evidence on

record, the learned counsel for the appellant, was

not in a position to point out any infirmity in the

conviction recorded by the trial court as affirmed

by the appellate court. The only contention put

forward before the court is that the appellant is

born on 1.1.67 while the date of the incident is

3

(2000) 6 SCC 89

4

(1997) 8 SCC 720

5

1984 Supp SCC 228

6

(1989) 3 SCC 1

1

14.12.1980 and on that date he was hardly 13

years old. We called for report of experts being

placed beforethe court as to the age of the

appellant, Arvind Singh. The report made to the

court clearly indicates that on the date of

the incident he may be 13 years old. This fact is

also supported by the school certificate as well as

matriculation certificate produced before this

court which indicate that his date of birth is

1.1.67. On this basis, the contention put forward

before the court is that although the appellant is

aged below 18 years and is a child for the purpose

of the Bihar Children Act, 1970 on the date of the

occurrence, his trial having been conducted along

with other accused who are not children is not in

accordance with law. However, this contention had

not been raised either before the trial court or

beforethe High Court. In such circumstances,

this Court in Bhola Bhagat vs. State of Bihar,

1997(8) SCC 720, following the earlier decisions

in Gopinath Ghosh vs. State of West Bengal,

1984 Supp.SCC 228 and Bhoop Ram vs. State of

U.P. 1989(3) SCC 1 and Pradeep Kumar vs.

State of U.P., 1995 Supp(4) SCC 419, while

sustaining the conviction of the appellant under

all the charges, held that the sentences awarded

to them need to be set aside. In view of the

exhaustive discussion of the law on the matter in

Bhola Bhagat case [supra], we are obviated of the

duty to examine the same but following the same,

with respect, we pass similar orders in the

present case. Conviction of the appellant, Arvind

Singh, is confirmed but the sentence imposed

upon him stand set aside. He is, therefore, set at

liberty, if not required in any other case”.

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18.The next question for our consideration is as to what

order and sentence is to be passed against the appellants

for the offences committed by them under Section 302

read with Section 34 of the IPC? Both the appellants have

crossed the age of 40 years as at present and therefore it

will not be conducive to the environment in the special

home and at any rate, they have undergone an actual

period of sentence of more than three years the

maximum period provided under Section 15 of the 2000

Act. In the circumstances, while sustaining the conviction

of the appellants for the offences punishable under

Section 302 read with Section 34 of the IPC, the

sentences awarded to them are set aside. They are

accordingly directed to be released forthwith. This view of

ours to set aside the sentence is supported by the

decision of this Court in Dharambir (supra).

19.The appellants are directed to be released forthwith if not

required in any other case. The appeals are partly allowed

accordingly.

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20.We place on record our appreciation for the invaluable

and dispassionate assistance rendered by Shri Manish

Kumar, Advocate, appearing for Shri Gopal Singh, learned

counsel for the State of Bihar.

………… ……………… ……………… J.

(B. SUDERSHAN R EDDY)

NEW DELHI, ………… ……………… ……………… J.

JANUARY 14, 2011.(SURINDER SINGH NIJJAR)

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