18. Having considered the facts of the case and the findings recorded above, it would also be appropriate to briefly deal with the case law on the point as to whether once an accused after conviction at the stage of appeal is held to be a juvenile/child under the provisions of the 2015 Act, what would be the status of the trial, the conviction and sentence recorded by the Trial Court and the appellate Courts. Whether the trial itself would stand vitiated for lack of jurisdiction by the regular Sessions Court and it would be the JJB alone which could make an inquiry into the offence committed based upon the evidence led by the prosecution. If the inquiry has not been conducted by the JJB, then whether the entire proceedings need to be quashed or only the sentencing aspect would require consideration in accordance with the 2015 Act.
19. We may note here at the outset that the appellant for the present has chosen not to challenge the conviction but is only claiming juvenility and consequently the benefit of sentence provided under the 2015 Act, reserving his right to address on conviction and sentence if he fails on the preliminary issue of juvenility.
20. There are a series of judgments on the said issue. Some have set aside the conviction, sentence and have terminated the proceedings, others have upheld the conviction but on the basis of sentence already undergone being more than the maximum permissible under the Juvenile Justice (Care and Protection of Children) Act, 21 20004 have directed for release of the accused and third, where after maintaining the conviction, this Court has referred the matter to the JJB for passing appropriate orders on sentence. All the judgments delivered earlier which are briefly discussed hereunder relate to the 2000 Act. Present case falls under the 2015 Act as the offence itself is of the year 2017.
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27. In the aforesaid case, the appellant had not taken the plea of juvenility before the Trial Court, however, such plea was raised before the High Court but the same was rejected. However, this Court got an inquiry conducted by the Registrar (Judicial) of this Court who found him to be aged less than 18 years. The judgment in this case mainly dealt with the issue as to whether the report of Registrar (Judicial) of this Court could be accepted over and above the finding of the High Court which was different. The judgment proceeds to deal with this issue and ultimately comes to the conclusion that this could be done provided this Court itself tests the correctness of the report of the Registrar (Judicial). It is only in the penultimate paragraph no. 27 while allowing the appeal it granted the relief of setting aside the conviction, sentence and further terminated the entire proceedings. There is no prior discussion on the issue whether conviction was required to be set aside or not on this technical ground. Merits of the conviction was not gone into. No ratio is laid down in the said case on this issue. Only while granting relief, conviction has also been set aside.
28. Following the above judgment in the case of Raju (supra), a two-judge Bench of this Court in the case of Ashok Kumar Mehra and Another Vs. State of Punjab and Others [2019 (6) SCC 132] set aside the judgment of conviction and sentence awarded to appellant no. 2 therein who had claimed to be a juvenile. Paragraph No. 14 of the said judgment which grants the relief is reproduced herein:
“In view of the foregoing discussion, we are of the considered opinion that since Appellant 2 was a juvenile on the date of commission of the offence and though till date he has already undergone considerable jail sentence partly as an undertrial and partly as a convict, yet the appeal filed by Appellant 2 has to be allowed as was done in the case of Raju (supra) without going into the merits of the case and passing any other consequential order in that regard.”
29. It will be pertinent to mention that in this judgment also there is no discussion with regard to the issue as to whether the conviction should be set aside. This judgment also does not lay down any ratio that if with respect to a juvenile a trial has been conducted by a Sessions Court without the accused having claimed juvenility before it, conviction could be set aside as being vitiated in law if subsequently it is held that the accused was a juvenile.
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- There is another reason why a trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child.
32. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under section 9 of the 2015 Act but also under section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, under section 25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or Court on the date of commencement of the 2015 Act shall be continued in that Board or Court as if this Act had not been enacted. Section 25 is reproduced hereunder:
“25. Special provision in respect of pending cases. – Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court 36 on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”
33. Having considered the statutory provisions laid down in section 9 of the 2015 Act and also section 7A of the 2000 Act which is identical to section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the Trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act.
34. In view of the above discussion and the position in law as laid down by the aforesaid judgments and many others referred to in the above judgments, we approve the view taken by this court in the case of Jitendra Singh (supra), Mahesh (supra) and Satya Deo (supra).
35. For all the reasons recorded above, it is ordered as follows:
The conviction of the appellant is upheld; however, the sentence is set aside. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith. The impugned judgement shall stand modified to the aforesaid extent.
- Both the appeals stand partly allowed
PARTY: KARAN @ FATIYA vs. THE STATE OF MADHYA PRADESH – CRIMINAL APPEAL NOS.572-573 OF 2019 – MARCH 03, 2023
