- (1.) PURSUANT to the order dated 17.09.2010 passed by a Coordinate Division Bench, the court of Juvenile Justice Board, Lakhimpur Kheri, has passed the order declaring the accused Appellant to be a juvenile. Learned Counsel for parties also agree that the case would be governed by the provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, 'the Act of 2000') read with the provisions of Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, '2007 Rules'). Section 7A of the 2000 Act, on reproduction reads as under: [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 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 court shall be deemed to have no effect.]
(2.) LEARNED Counsel also referred to a latest judgment of Hon'ble the Apex Court reported in : (2010) 6 SCC 669 (Mohan Mali and Anr. v. State of Madhya Pradesh). In that case, the juvenile had been tried with other co -accused persons under Section 302/34, 326/34 and 324/34 IPC and had been sentenced to various terms of imprisonment including life imprisonment. Hon'ble the Apex Court having found that the accused Appellant was a juvenile held that Rule 98 of the 2007 Rules, would squarely cover his case. It was also held that the case of a juvenile is to considered not only for grant of bail but also for the release in terms of the said Rules. Learned Counsel cited another judgment of Hon'ble the Apex Court reported in : (2009) 3 SCC 337 (Eerati Laxman v. State of Andhra Pradesh). In that judgment, on the Appellant having been found to be a juvenile, the impugned judgment was set -aside, and the matter was remitted to the Juvenile Justice Board for orders in terms of Section 20 of the Act of 2000. In yet another judgment reported in, LXVII 2009 ACC 459 (Satish @ Dhanna v. State of M.P. and Ors.), as the conviction had been recorded under Sections 147, 148 and 302/149 IPC, the Hon'ble Court passed the following order: It is to be noted that prior to the date of occurrence the Madhya Pradesh Children Act, 1928 (in short the 'Children Act') was in force. The Juvenile Justice Act, 1986 (in short '1986 Act') was in operation on the date of occurrence. Subsequently, the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as '2000 Act') has been enacted. Under Section 2(h) of the 1986 Act, a juvenile is one who is below the age of 16 years. Under the 2000 Act under Section 2(k), a juvenile or child means a person who has not completed 18 years of age. The fact that on the date in question, i.e. on the date of occurrence and the date of production before the Court the Appellant had not completed 18 years of age stands fully established on record. Section 16 of the 2000 Act provides that no juvenile shall be sentenced to death or imprisonment for life or committed to prison in default of payment of fine or in default of furnishing security. Section 20 provides for special provisions in respect of pending cases. The 2000 Act came into force on 11.4.2001. In Bhola Bhagat v. State of Bihar, this Court after referring to the decision in Gopinath Ghosh v. State of West Bengal, and Bhoop Ram v. State of U.P., held that an accused who was juvenile cannot be denied the benefit of provisions of 2000 Act. The course this Court adopted in Gopinath's and Bhola Bhagat's cases (supra) was to sustain the conviction, but at the same time modify the sentence awarded to the convict. At this distant point of time to refer the Appellant to the Juvenile Board would not be proper. Therefore, while sustaining the conviction for the offence for which he has been found guilty, the sentence awarded is restricted to the period already undergone. The Appellant be released from custody forthwith unless required to be in custody in connection with any other case. In view of all the aforesaid and also looking to the nature of offence committed by the Appellant and the sentence awarded, and further that a juvenile in terms of Section 16 of the Act of 2000 cannot be sentenced to death or life imprisonment, for the present, we are inclined to accept the application for suspension of sentence. Accordingly, the jail sentence and fine amount of accused/Appellant shall remain suspended during the pendency of this appeal, and he shall be released on bail in terms of the relevant provisions of the Act of 2000 by the trial court.;