IMPORTANT POINT
A person below 18 years at the time of the incident can claim benefit of the Act any time, even after the final order is passed.

Judgment

Adarsh Kumar Goel, J.

1. This application has been filed under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act”) seeking release of the petitioner who has been found to be juvenile. Since special leave petition and review petition have been dismissed and we are inclined to allow the application, orders dismissing the special leave petition and review petition will stand recalled.

2. The petitioner was tried for the offence under Section 302 of the Indian Penal Code (‘IPC’) for causing the death of Amir Ullah on 18th February, 1979 at Firozabad, Uttar Pradesh. He was convicted under Section 302 and sentenced to undergo life imprisonment by the Court of Sessions Judge, Agra in Sessions Trial No.325 of 1979 vide judgment dated 29th September, 1980.

3. The conviction and sentence of the petitioner was affirmed by the High Court of Judicature at Allahabad on 21st February, 2000. This Court vide Order dated 29th September, 2000 dismissed the special leave petition. Review Petition filed against the said order was dismissed on 20th July, 2010.

4. Thereafter, the High Court of Allahabad vide order dated 24th May, 2012 in Crl. (PIL) Misc. W.P. No.855 of 2012 Sister Sheeba Jose vs. State of U.P. & Ors. directed suo motu action under proviso to Section 7-A of the Act. The U.P. State Legal Services Authority took steps for implementation of the said judgment. The Juvenile Justice Board, Agra vide Order dated 2nd July, 2013 examined the case of the petitioner and held that on the date of incident, the petitioner was less than 18 years of age.

5. On above basis, the present application has been filed with a prayer that the petitioner be released from custody. It has also been stated in the application that the petitioner has already undergone more than 14 years of imprisonment.

6. Notice was issued by this Court on 8th October, 2014, in response to which, the State of U.P. has entered appearance.

7. We have heard learned counsel for the parties.

8. Learned counsel for the petitioner pointed out that since the petitioner was a juvenile on the date of occurrence, he is entitled to the benefit of provisions of the Act. It has also been pointed out that his date of birth was noted to be 18th September, 1962 in the judgment of the High Court. Since he was taken to be more than 16 years of age while the age of juvenility prior to the present Act was 18 years, the petitioner was not held entitled to the benefit of the said Act. The law having changed with retrospective effect, the petitioner claims the 76 benefit of juvenility.

9. The legal position on the subject is well settled. A person below 18 years at the time of the incident can claim benefit of the Act any time. Reference may be made to Section 7-A and 20 of the Act and Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 which are as follows:

“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 person 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 co