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2019 Supreme(Raj) 2725
IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta and Vinit Kumar Mathur, JJ.
Vinod Kumar - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 450 of 2003
Decided On : 14-05-2019
Mr. K.R. Bhati, Advocate, for the Appellant; Mr. N.S. Bhati, PP, Mr. B.S. Rathore for Complainant, for the Respondent
The Juvenile Justice (Care and Protection) Act, 2000 is retrospective in effect and operation, and a claim of juvenility can be raised at any stage, even after the final disposal of the case.
Headnote:
JUVENILE JUSTICE ACT, 2000 - SECTION 7A - INTERPRETATION - RETROSPECTIVE EFFECT - JUVENILE OFFENDER - TRIAL - PROCEDURE - AGE DETERMINATION - RELEVANCE OF SCHOOL RECORDS - IMPACT ON SENTENCING.
Fact of the Case:
The appellant, Vinod Kumar, was convicted and sentenced to life imprisonment for the murder of Paresh Kumar Rawal. During the trial, the Juvenile Justice (Care and Protection) Act, 2000 (Act of 2000) came into force. The appellant claimed that he was a juvenile at the time of the incident and should be tried under the Act of 2000.
Finding of the Court:
The court found that the appellant was below the age of 18 years when the incident took place and was, therefore, a juvenile as defined under Section 2(l) of the Act of 2000. The court held that the Act of 2000 was retrospective in effect and operation and should have been considered by the trial court.
Issues: 1. Whether the appellant was a juvenile at the time of the incident. 2. Whether the trial court erred in not considering the appellant's claim of juvenility under the Act of 2000.
Ratio Decidendi: 1. The court relied on the school record of the appellant, which showed his date of birth as 27.07.1981, to determine his age at the time of the incident. 2. The court held that Section 7A of the Act of 2000 clearly provides for the procedure to be followed when a claim of juvenility is raised before the court and that the Act is retrospective in effect and operation. 3. The court found that the trial court erred in not considering the appellant's claim of juvenility and in not following the procedure laid down in Section 7A of the Act of 2000.
Final Decision: The court set aside the impugned judgment of the trial court and terminated all proceedings against the appellant. The appellant was ordered to be set at liberty.
JUDGMENT
Sandeep Mehta, J. - Through this appeal under Section 374(2) Cr.P.C., the appellant Vinod Kumar has approached this Court for assailing the judgment impugned dated 26.03.2003 passed by learned Addl. Sessions Judge (Fast Track), Sirohi in Sessions Case No. 49/2001 (28/99) whereby the appellant was convicted and sentenced as below:-
Under Section 302 Life Imprisonment and a fine of Rs. 2,000/-. In default of payment of fine to further undergo one years imprisonment.
2. An incident of violence took place in the intervening night of 06.10.1998 and 07.10.1998 in the Rawal Brahmin Hostel, Sirohi. The FIR (Ex.P/7) was lodged by Dinesh Kumar to the SHO PS Sirohi on 07.10.1998 at 9:00 am alleging that his cousin brother Paresh Kumar Rawal had been murdered by inflicting a knife blow. Charge sheet for offence under Section 302 IPC was came to be filed against the accused appellant Vinod Kumar whereas proceedings qua the co-accused Mahendra Kumar, who was attributed offence under Section 212 IPC were deferred.
3. It is relevant to mention here that the school record of the appellant was seized by the IO during the course of the investigation and the seizure memo Ex.P/10 refers to the identity card of the appellant issued from the Govt. Senior Secondary School, Sirohi, wherein his date of birth was recorded as 27.07.1981. While the trial of the case was underway, the Juvenile Justice (Care and Protection) Act, 2000 came into force. As per Section 2(l) of the Act of 2000, "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 7A of the Act of 2000 deals with the procedure to be followed when claim of juvenility is raised before the court and is reproduced hereinbelow for ready reference:-
" 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 recognized 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 orders and the sentence, if any passed by a court shall be deemed to have no effect."
4. By the clear import of this provision, the Act of 2000 was made retrospective in effect and operation and thus, the trial court ought to have considered the case of the appellant for inquiry under the Act of 2000. However, no such course of action was adopted by the trial court.
5. While filing appeal in this Court, a pertinent ground was raised imploring the Court that the trial of the appellant is vitiated with the coming into force of the Act of 2000:
"(9) The accused is a Juvenile offender. His date of Birth recorded in School record is 27.07.1981. During the trial with her coming in force of the Act of 2000, the accused could not be tried by the ordinary court. The trial is, therefore vitiated. The New Act has impact on the trial of the accused. If it has no impact on the trial, it has bearing on the question of sentence. The Juvenile Act is beneficial Act and it is to be construed in favour of the accused."
6. The sentences awarded to the appellant was suspended vide order dated 04.02.2004 passed
