VINOD SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This is the second bail application. The first bail application was rejected on 29.8.2011 on merit. The second bail application was filed on behalf of appellant Pramod Singh by Sri Alkesh Singh Chauhan, learned Counsel for appellant. The second bail has been nominated to this Court by an order of Hon'ble the Chief Justice dated 12.2.2014. The second bail application has been moved on the ground of juvenility of the appellant. It is contended that the incident took place on 29/30.1.1990 at about 11:00 P.M. and according to the High School certificate of 1986, the date of birth of the appellant is 1.6.1972. An order has been passed on 18.9.2013 calling for a report from the Juvenile Justice Board after inquiry within two months regarding the age of the appellant. The said report as well as documents from the Juvenile Justice Board have been received. The Juvenile Justice Board has confirmed that the date of birth of the appellant in the High School certificate was 1.6.1972. Witnesses have also been examined for proving this fact. The appellant was also medically examined on 14.10.2013 and the Doctor found his age to be 38 years. On these findings, the appellant would be below 18 years of age on the date of incident. The statement of the appellant was recorded under section 313 Cr.P.C. on 18.1.2007 and the appellant has given his age as 32 years. This would have made him about 15-16 years of age on the date of incident.

(2.) Learned A.G.A. argued that the benefit of age was not sought for or given to the appellant earlier, because it was not sustainable. To this learned Counsel for appellant replied that the Juvenile Justice (Care and Protection of Children) Act, 2000 in which advantage is to be given to a person who has not completed 18 years of age under section 2(k) and under section 2(l) The material date for considering whether a person was juvenile (i.e. below 18 years) would be the date of commission of the offence. By an explanation to section 20 in all pending cases including trial, revision and appeal, in respect of a juvenile in conflict with the law, the determination of juvenility of such a juvenile is to be in terms of Clause 2(l), even if the juvenile had ceased to be so, on or before the commencement of this Act. Therefore, this Court is left with no option but to treat the appellant as a juvenile, on the basis of the retrospective law which was made to apply to the appellant passed by subsequent amendment

(3.) We would like to mention here that we are disturbed with this development, and the need to give the appellant who is presently 38-39 years of age, the benefit of the provisions of the Juvenile Justice Act, 2000 as this is a case of double murder and there is also an injured witness and the appellant has been in jail only for about 7 years. As per section 82 of the Penal Code nothing is an offence which is done by a child under seven years of age and as per section 83 of the Penal Code nothing is an offence which is done by a child above seven years of age and under twelve years, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. There is no contention in this case that he who on the date of incident was bordering majority appellant was not in a position to judge the nature or consequences of his conduct when he was involved in this crime. However, in view of retrospective operation of these provisions, this Court has no option but to allow bail to the appellant at this stage.