The discretion to determine the course of action for a juvenile in conflict with the law lies with the Juvenile Justice Board and the Children's Court.

1. Considered I.A. No.404/2018 and I.A. No. 1442/2018.

2. I.A. No.404/2018 has been filed for suspension of sentence, whereas I.A. No. 1442/2018 has been filed under Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015.

3. The appellant No.2 Shivam has been convicted for offence under Sections 363 and 366 of I.P.C. and has been sentenced to undergo the rigorous imprisonment of 3 years and a fine of Rs. 500/- and rigorous imprisonment of 5 years and a fine of Rs.1000/- with default imprisonment, respectively.

4. I.A. No.1442/2018 has been filed by the both the appellants, claiming themselves to be juvenile on the date of incident. However, on 5-4-2018, the Counsel for the appellants, withdrew the application on behalf of the appellant no.1 Sourabh and accordingly, this Court by order dated 5-4-2018 passed the following order in respect of appellant no.2 Shivam.

''By relying on the mark-sheet of Class VIII of appellant No. 2 Shivam Sharma, it is submitted by the counsel for the appellants that the incident took place on 22/2/2017 and the date of birth of appellant Shivam Sharma is 5/4/2000 which clearly shows that he was juvenile on the date of incident. It is fairly conceded by the counsel for appellant No. 2 Shivam Sharma that no objection was raised by the appellant before the trial Court with regard to the age of appellant No. 2.

In the light of the submissions made by the counsel for the appellants, the Juvenile Justice Board Shivpuri is directed to conduct an enquiry with regard to the age of appellant No. 2 Shivam S/o Jagdish Prasad Sharma. The pairokar of appellant No. 2 Shivam Sharma is directed to appear before the Juvenile Justice Board Shivpuri along with certified copy of this order as well as all the original documents in support of his age on 30th April, 2018. The State shall also appear before the Juvenile Justice Board, Shivpuri on 30th April, 2018.

The Office is directed to send a copy of this order to the Juvenile Justice Board Shivpuri for necessary information and compliance.

The Juvenile Justice Board is directed to submit the report as early as possible preferably within a period of three months from 30th April, 2018.''

5. Accordingly, the JJB, Shivpuri submitted a report, that the appellant no. 2 Shivam was 16 years, 10 months and 17 days of age, on the date of incident, and thus he was minor.

6. Therefore, the question for determination is that whether this Court, should remand the matter back to JJB, Shivpuri to decide the question of sentence, while maintaining the conviction, or should set aside the conviction of the appellant no.2 Shivam, with a direction to proceed in accordance with Law.

7. Before proceeding further, this Court is of the considered opinion, that different provisions of Juvenile Justice (Care and Protection of Children), Act, 2015 (Act, 2015) may be considered.

Section 9 of Act, 2015 reads as under :-

''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 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 d