Krushna Ram Mohapatra JUDGMENT
Krushna Ram Mohapatra, J.
1. This is an appeal under Section 374 of the Cr.P.C. filed by the convicts (appellants) assailing the judgment and order of conviction and sentence dated 29.03.2005 passed by learned Additional Sessions Judge, Fast Track Court-2, Cuttack in Sessions Trial No. 397 of 2005.
2. Occasion to consider this appeal in respect of the appellant No. 1, namely, Jituna @ Jyotiprakash Sahoo arose, when an application in Misc. Case No. 529 of 2015 was filed by appellant No. 1, namely, Jituna @ Jyotiprakash Sahoo contending, inter alia, that appellant No. 1 was born on 10.06.1985. The incident, in which the appellants along with others were convicted, took place 28.11.2002. As such, on the date of alleged occurrence, the appellant No. 1 was only seventeen years five months and eighteen days old. Hence, he was a 'juvenile' within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, 'JJ Act'). In support of proof of his age, appellant No. 1 filed the transfer certificate issued by Kamalakanta Bidyapitha at Kaliaboda, Cuttack, along with the petition (Annexure-1). The appellant No. 1 who had appeared in High School Certificate Examination, 2001 having Roll No. 52RG054 was provided with Memorandum of marks issued by Board of Secondary Education, Odisha, indicated that his date of birth was 10th June, 1985, a copy of which was also annexed to the said petition as Annexure-2. Thus, it was contended that an enquiry in respect of appellant No. 1 should be concluded in terms of the provisions of Rule 12 (3)(a)(i) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short, 'JJ Rules'). Inadvertently, the claim of juvenility could not be raised either before the learned trial Court or at any time before this Court, earlier. Thus, in view of the provisions under Section 7-A(1) of the JJ Act, the petitioner-appellant No. 1 prayed for consideration of his case to declare his status as 'juvenile' under the provisions of the JJ Act and Rules.
3. Taking into consideration the submissions of learned counsel for the parties, this Court, vide order No. 33 dated 11.07.2017 passed in Misc. Case No. 529 of 2015, directed as under:
"Having heard learned counsel for the parties, we direct the Juvenile Justice Board, Cuttack to make an enquiry with regard to juvenility of the petitioner-appellant No. 1, namely, Jituna @ Jyotiprakash Sahoo and to submit a report before this Court within a period of six weeks from the date of presentation of certified copy of this order."
4. Pursuant to order dated 11.07.2017, the appellant No. 1 filed a petition before the JJ Board with a prayer to declare him as juvenile-in-conflict with law (for short 'JCL') within the meaning of Section 2(1) of JJ Act. The petition was registered as Misc. Case No. 1 of 2017 vide order dated 15.07.2007 of the JJ Board. It also received the order of this Court along with relevant records on 29.07.2017. Accordingly, the JJ Board conducted a detailed enquiry as contemplated under Section 7-A(1) of JJ Act and Rule 12 of the JJ Rules by recording the statements of the Deputy Secretary, Board of Secretary Education, Odisha, Central Zone, Cuttack (PW-1), Headmaster, Kamalakanta Vidyapitha, Kaliaboda, Cuttack (PW-2), the City Health Officer-cum-Registrar Birth and Death, Municipal Corporation, Cuttack (PW-3) as well as father of the appellant No. 1 (PW-4). The JJ Board also considered the documents filed, such as, relevant volume of tabulation register containing Centre Code from 47RG to 52 RG of annual High School Certificate Examination, 2007 (Ext. 1), which contained the roll number of the appellant No. 1 (52 RG054), admission register in respect of appellant No. 1 (Ext. 2), counterfoil of transfer certificate issued in respect of appellant No. 1 (Ext. 3), copy of the Misc. Case No. 1047 of 2015 and Memo No. 1397 dated 25.05.2015 received from Executive Magistrate, Sadar Cuttack (Ext. 4) and birth register (Ext. 5). After conducting a detailed enquiry, learned Principal Magistrate of the JJ Board submitted his report on 29.08.2017 holding as under:-
".... I verified the original tabulation register produced by the Deputy Secretary, Board of Secondary Education, original admission register of the year 1991 to 2000, counterfoil regarding the issuance of transfer certificate produced by the Headmaster of Kamalakanta Vidyapitha, order in Misc. Case No. 1047/2015, online birth registration No. 10981. From these, it is quite evident that the date of birth of Jyoti Prakash Sahoo is 10.06.1985. The copy of the judgment in ST No. 397/2003 shows that the occurrence had taken place on 28.11.2002. So Jyotiprakash was 17 years 5 months 18 days during the date of occurrence. Accordingly, BC is directed to submit the Misc. Case before the Hon'ble High Court immediately."
In view of the report of the JJ Board, it became expedient for this Court to take up the appeal in respect of appellant No. 1 for consideration.
5. Heard Mr. Debasnan Das, learned counsel for the appellant No. 1 and Mr. L. Samantaray, learned Standing Counsel for the State-respondent. Perused the record.
6. The questions thus arise for consideration in this appeal in respect of appellant No. 1 are.--
Issues:
(i) Whether the appellant No. 1 was a juvenile on the date of occurrence, i.e., on 28.11.2002?
(ii) If so, whether the entire proceeding in ST No. 397 of 2003, in respect of the appellant No. 1, is vitiated?
(iii) If not, whether the conviction and sentence in respect of the appellant No. 1 are sustainable in the eyes of facts and law?
In order to consider the same, a brief narration of the fact is necessary. The FIR story reveals that on the date of occurrence, i.e., 28.11.2002, at about 2.00 PM. The informant, namely, Ramesh Chandra Behera (uncle of the deceased, namely, Lulu @ Trilochan Behera) was sitting in the fish market at Jobra, Cuttack. At that time, he saw some people came running from the direction of Jobra barrage. The informant subsequently ascertained that his nephew (the deceased) was attacked by some persons and was lying on the spot receiving bleeding injuries. Thus, he rushed to the spot. He was informed by Jitu (PW-3) that while the deceased was crossing the Jobra barrage gate in a motorcycle along with one Raja Panda (PW-8) as pillion rider, Jituna (appellant No. 1), Lulu Behera and Kalia Behera (appellant No. 2) along with 3 to 4 others being armed with Bhujali and pistol detained the deceased. The pillion rider Raja Panda being frightened fled away from the spot. On being attacked by accused persons, the deceased fell down receiving injuries caused by bullet and sharp cutting weapon. Thereafter, Kalia (appellant No. 2) along with two other accused persons left the spot by the Suzuki motorcycle of the deceased towards the fish market. Jituna (appellant No. 1), Lulu Behera and others also ran away from the spot. The informant with the help of others shifted the deceased to S.C.B. Medical College and Hospital, Cuttack, where he was declared dead. Subsequently, four accused persons, namely, the appellants and two others, namely, Kartika @ Pradeep Mohapatra, Lulu @ Lingaraj Behera were arrested for commission of the offence under Sections 379/302/34 IPC read with Section 25 of the Arms Act. Learned Additional Sessions Judge, FCT-2, Cuttack, while acquitting all the accused persons from the charges under Section 379 I.P.C. read with Section 34 of IPC, convicted both the appellants under Section 25 of the Arms Act for possessing firearm without any authority. All the charge-sheeted accused persons including the appellants were convicted under Section 302/34 IPC and have been sentenced to undergo life imprisonment for commission of offence under Section 302/34 IPC. The appellants have been sentenced to undergo R.I. for five years for commission of offence under Section 25 of the Arms Act. It was further directed that the sentences will run concurrently. The period of detention in jail custody was directed to be set off. Assailing the same, the appellants have filed this appeal.
Issue No. (i)
Learned counsel for the appellant No. 1 supported the report dated 29.08.2017 submitted by the JJ Board and submitted that the JJ Act was in force on the date of occurrence and as such the appellant No. 1 was a JCL within the meaning of Section 2(1) of the JJ Act. Learned Standing Counsel also did not object to the report submitted by the JJ Board. Having heard learned counsel for the parties and on perusal of report of the JJ Board and other relevant records, it appears that the JJ Board has conducted a detailed enquiry in terms of Rule 12 of the JJ Rules. He has recorded the statement of witnesses, as detailed above on oath and marked the documents as Exts. 1 to 4 produced by the witnesses. On a threadbare discussion of the materials on record, learned Principal Magistrate came to a categorical conclusion that the appellant No. 1 was a juvenile on the date of commission of offence, i.e., 28.11.2000. He was only 17 years 5 months 18 days old and had not completed 18 years of age by that date. No objection having been raised to the report of the JJ Board, we accept the same and hold that the appellant No. 1 was a 'juvenile' on the date of commission of the offence within the meaning of Section 2(k) of the JJ Act.
7. Admittedly, plea of juvenility of the appellant No. 1 was not raised either in course of trial or during pendency of this appeal before hand. Therefore, the contention raised by learned Standing Counsel, as to whether, such a plea can be raised at a belated stage during pendency of this appeal needs consideration. Section 20 of the JJ Act makes a special provision in respect of pending cases, which reads as follows:
"20. Special provision in respect of pending cases.--Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation.--In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."
Explanation to Section 20 makes it abundantly clear that the question with regard to the determination of juvenility can be raised and adjudicated in all pending cases including trial, revision, appeal or any other criminal proceeding in respect of the JCL in any Court and such question, if raised, has to be determined, even if the juvenile ceases to be so on or before the date of commencement of this Act, i.e., 01.04.2001 and the provisions of the JJ Act shall apply as if the said provision was in force for all purposes and on material time when the alleged offence committed. Right of a JCL is protected under the provisions of the JJ Act. The right conferred in law on JCL cannot be brushed aside lightly. Thus, the right to raise question with regard to juvenility of the appellant can be raised at any time either during trial or during pendency of the appeal or revision or in any other proceeding pending in any Court of law in respect of a JCL.
In the case of Jitendra Singh @ Babboo Singh & Anr. vs. State of U.P., reported in MANU/SC/0679/2013 : (2013) 2 SCC 193, Hon'ble Mr. Justice T.S. Thakur (as His Lordship then was), while dealing with the scope of Section 20 of the JJ Act and concurring with the observation made by Hon'ble Mr. Justice Madan B. Lokur, observed as follows:
"11. A plain reading of the above brings into the following features that have a significant bearing on the controversy at hand:
(i) The provision starts with a non-obstante clause, which implies that the provisions have an overriding effect on all other provisions contained in the enactment.
(ii) The provision deals with proceedings pending against a juvenile in any court.
(iii) The provision sanctions the continuance of such pending proceedings in the very same court, as if the 2000 Act had not been enacted.
(iv) The provision requires the Court seized of the matter to record a finding as to whether the juvenile has committed an offence.
(v) If the finding is against the juvenile in that he is found to have committed an offence, the court is required to forebear from passing an order of sentence and instead forward the juvenile to the Board, which shall then pass an order in accordance with the provisions of the Act, as if it had been satisfied on inquiry under the Act that the juvenile had committed an offence.
(vi) In all pending cases including trial, revision, appeal or any other criminal proceedings the determination of juvenility shall be in terms of clause (1) of Section 2 even if the juvenile ceases to be so on or before the date of commencement of the 2000 Act."
Further, Hon'ble Supreme Court in the case of Upendra Pradhan vs. State of Orissa, reported in MANU/SC/0501/2015 : (2015) 61 OCR (SC) 416, at paragraph-13 held as follows:
"13. The Third and last ground pleaded before us was the plea of juvenility of the accused appellant. The accused appellant has submitted before us, true copy of the certificate issued by the Basiapara Nodal U.P. School which shows that the accused appellant was less than 18 years on the date of the occurrence. As per the School Certificate, the date of birth of the appellant is 08.07.1976. The age of the appellant on the date of occurrence i.e. 28.8.1993, was 17 years, 1 month & 20 days. The learned counsel for the appellant raises the plea of juvenility under Section 7(A) of the Juvenile Justice (Care and Protection) Act, 2000. The plea can be raised before any Court and at any point of time. We feel that the stand taken by the counsel is correct and we will look into the present lis keeping in mind the juvenility of the accused appellant at the time of commission of the crime. As stated earlier, the age of the accused appellant was less than 18 years at the time of the incident. It has been brought to our notice that the appellant has undergone about 8 years in jail. The appellant falls within the definition of "juvenile" under Section 2(k) of the Juvenile Justice (Care and Protection of children) Act, 2000. He can raise the plea of juvenility at any time and before any court as per the mandate of Section 7(a) and has rightly done so. It has been proved before us, as per the procedure given in the Rule 12 of the Juvenile Justice Model Rules, 2007, and the age of the accused appellant has been determined following the correct procedure and there is no doubt regarding it."
(emphasis supplied)
In view of the settled position of law, the stand taken by the learned Standing Counsel that the plea of juvenility cannot be raised at a belated stage during pendency of the appeal as it was not taken in course of trial, is inconsequential. Thus, we are of the view that the appellant No. 1 was competent to raise this plea during pendency of the appeal and he was a JCL on the date of commission of the offence.
Issue No. (ii)
8. Admittedly, the appellant No. 1 was tried in a Sessions Court and not by the JJ Board, as envisaged under Sections 14 and 15 of the JJ Act. It was because of the fact that the plea of juvenility was not raised in course of trial. Thus, issue as to whether the trial in respect of appellant No. 1 would be vitiated being undertaken by the Sessions Court assumes importance. Such an issue came up for consideration in the case of Jitendra Singh (supra). Hon'ble Mr. Justice Madan B. Lokur while speaking for the Bench, discussed the dichotomy of views rendered by the Hon'ble Supreme Court in various judicial pronouncements in maintaining the conviction and taking into consideration the scope Section 20 of the JJ Act, observed as follows:
"42. It is clear that the case of the juvenile has to be examined on merits. If it found that the juvenile is guilty of the offence alleged to have been committed, he simply cannot go unpunished. However, as the law stands, the punishment to be awarded to him or her must be left to the Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000. This is the plain requirement of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In other words, Ashwani Kumar Saxena should be followed."
It is made clear that the case of juvenile has to be examined on merit. He simply cannot go unpunished. However, as the law stands, the punishment to be awarded to him or her should be left to the JJ Board constituted under the JJ Act.
9. Concurring the observations made by Hon'ble Lokur, J., Thakur, J. in paragraphs-20 and 23 observed as follows:
"20. A careful reading of the above would show that although a claim of juvenility can be raised by a person at any stage and before any Court, upon such Court finding the person to be a juvenile on the date of the commission of the offence, it has to forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed shall be deemed to have effect. There is no provision suggesting, leave alone making it obligatory for the Court before whom the claim for juvenility is made, to set aside the conviction of the juvenile on the ground that on the date of commission of the offence he was a juvenile, and hence not triable by an ordinary criminal court. Applying the maxim of expressio unius est exclusio alterious, it would be reasonable to hold that the law in so far as it requires a reference to be made to the Board excludes by necessary implication any intention on the part of the legislature requiring the Courts to set aside the conviction recorded by the lower court. The Parliament, it appears, was content with setting aside the sentence of imprisonment awarded to the juvenile and making of a reference to the Board without specifically or by implication requiring the court concerned to alter or set aside the conviction. That perhaps is the reason why this Court has in several decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7A(2) of the Act.
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23. In the totality of the above circumstances, there is no reason why the conviction of the appellant should be interfered with, simply because he is under the 2000 Act a juvenile entitled to the benefit of being referred to the Board for an order under Section 15 of the said Act. There is no gainsaying that even if the appellant had been less than sixteen years of age, on the date of the occurrence, he would have been referred for trial to the Juvenile Court in terms of Section 8 of the 1986 Act. The Juvenile Court would then hold a trial and record a conviction or acquittal depending upon the evidence adduced before it. In an ideal situation a case filed before an ordinary Criminal Court when referred to the Board or Juvenile Court may culminate in a conviction at the hands of the Board also. But law does not countenance a situation where a full-fledged trial and even an appeal ends in a conviction of the accused but the same is set aside without providing for a trial by the Board."
(emphasis supplied)
Thus, the proceeding in respect of the appellant No. 1 cannot be held to be vitiated solely on the ground that the procedure as laid down under Sections 14 and 15 read with Section 7-A(2) of the JJ Act along with corresponding Rules were not followed. Thus, the case of appellant No. 1 has to be examined on its own merit and if he is found guilty of the offence charged against him, he should not go unpunished.
10. There is no quarrel over the fact that the death of the deceased was homicidal. PW-3 is an eyewitness to the occurrence. According to him, on the date of occurrence at about 2.00 PM, he was proceeding towards Jobra barrage. On the way, he saw the deceased coming by his Suzuki motorcycle from Jagatpur side along with Raja Panda (PW-8) as pillion rider. When the deceased crossed the Jobra Check gate, all the four accused persons including the appellant No. 1 detained the deceased and started assaulting him. Due to the scuffle between Kalia and the deceased, the pistol of Kalia fell down and while the deceased trying to escape, the appellant No. 1 fired at him from his pistol. Kalia also fired at the deceased. Due to the firing, the deceased fell down on the ground. Thereafter, Lulu @ Lingaraj assaulted the deceased by means of a Bhujali and Kartika gave fist blows. Kartika had also a bhujali with him. When hearing hulla, people started gathering at the spot, accused Lulu, Kalia and Kartika escaped from the spot with the motorcycle of the deceased and the appellant No. 1 escaped towards Mangalabag. Although PW-3 was cross-examined in threadbare, except some minor discrepancies, nothing was elicited from his moth to disbelieve his statement. Learned counsel for the appellant No. 1 assailed the testimony of PW-3 on the ground that he (PW-3) was working in a shop and it would be highly improbable for him to be present there at the spot at such an odd hour, during which he was expected to be at his place of work. However, PW-3 had denied such suggestion. No material was produced to the effect that PW-3 was present at his place of work at the relevant time. Apart from the above, PW-7, the doctor who conducted the postmortem of the deceased opined that injury No. 1 was possible by MO-I, the pistol. On dissection, he found that injury No. 1 found to be penetrating the muscles and soft tissues with extravasation of blood around the neck near the right angle of mandible which further lacerates the parotid gland and fracture the mandible at its angle damaging the oral cavity through and comes out by dislocating the upper left central incisor teeth where the gum margins were contused with missing of the said teeth. This wound is the exit wound of external injury No. 1. PW-10, the Deputy Director of State Forensic Science Laboratory also supported the case of the prosecution and he was not cross-examined on behalf of appellant No. 1. PW-12 is the IO. He in his examination-in-chief, has vividly explained the specific role played by each of the accused persons including the appellant No. 1 in commission of the offence. No suggestion denying the role played by appellant No. 1 was made. Although at paragraph-9 of his deposition, PW-12, the IO has categorically stated that PW-8 Raja Panda, the pillion rider stated before him that while escaping he saw Jituna @ Jibanjyoti firing towards the deceased and also he saw that the deceased was lying on the ground, no suggestion with regard to innocence of appellant No. 1 was put by the defence counsel.
11. On a close reading of evidence of the witnesses, more particularly the evidence of PW-3, PW-7, PW-10 and PW-12 along with the postmortem report as well as the ballistic report and other ancillary documents, it is crystal clear that appellant No. 1 had fired at the deceased, as a result of which the deceased fell down. PW-7, the doctor who conducted autopsy, also opined that all the injuries are ante-mortem in nature. The external injury Nos. 1, 2, 3, 4, 5, 6 and 7 with corresponding internal injuries are consistent with shot gun injuries with a range of beyond the effect of fire and flame and within the range of gun powder. He also opined that all the injuries combined together are fatal in ordinary course of nature. The external injury No. 1 with its corresponding internal injury, the external injury No. 9 and its corresponding internal injury are individually fatal. The death was due to shock and haemorrhage.
12. On a combined reading of the aforesaid materials, the active involvement of appellant No. 1 in commission of the offence is proved beyond any reasonable doubt. Thus, we find no infirmity in the impugned judgment in convicting the appellant No. 1 under Section 302/34 of IPC read with Section 25 of the Arms Act.
However, the award of sentence in respect of appellant No. 1 can only be considered in terms of Section 15 of the JJ Act, which reads as follows:-
"15. Order that may be passed regarding juvenile.--
(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,--
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behavior and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behavior and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
(2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behavior during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behavior and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer."
Sub-clause (1)(g) of Section 15 of the JJ Act makes it abundantly clear that the juvenile can be sent to a special home for a maximum period of three years. In the case at hand, the appellant No. 1 has been under incarceration for more than 15 years. Hence, the sentence awarded against the appellant No. 1 is not sustainable and liable to be set aside.
In the case of Jitinder Singh (supra), in which JJ Act of 1986 was applicable, Hon'ble B. Lokur, J. at paragraph-44 of the said judgment observed as follows:-
"44. A perusal of the 'punishments' provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him [clause (a)] is hardly a 'punishment' that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986."
Hon'ble Thakur, J. (as His Lordship then was) while concurring the above view of Hon'ble Lokur, J at paragraphs-21 and 22 has observed as follows:-
"21. In Kalu @ Amit's case (supra), the plea of juvenility was raised before this Court for the first time as is the position in the present case also. This Court while dealing with the options available noticed the absence of plea on the ground of juvenility and held that even if such a plea had been raised before the High Court, the High Court would have had to record its finding that Kalu @ Amit was guilty, confirm his conviction, set aside the sentence and forward the case to the Board for passing an order under Section 15 of the Juvenile Act. The Court observed:
"24. The instant offence took place on 7-4-1999. As we have already noted Kalu alias Amit was a juvenile on that date. He was convicted by the trial court on 7-9-2000. The Juvenile Act came into force on 1-4-2001. The appeal of Kalu alias Amit was decided by the High Court on 11-7-2006. Had the defence of juvenility been raised before the High Court and the fact that Kalu alias Amit was a juvenile at the time of commission of the offence has come to light the High Court would have had to record its finding that Kalu alias Amit was guilty, confirm his conviction, set aside the sentence and forward the case to the Board and the Board would have passed any appropriate order permissible under Section 15 of the Juvenile Act (see Hari Ram).
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22. That procedure has been followed in several other cases where this Court has, after holding the accused to be a juvenile as on the date of the commission of offence, set aside the sentence awarded to him without interfering with the order of conviction. (See: Pradeep Kumar & Ors. v. State of U.P. MANU/SC/0027/1994 : 1995 Supp (4) SCC 419, Bhola Bhagat & Ors. v. State of BiharMANU/SC/1361/1997 : (1997) 8 SCC 720, Upendra Kumar v. State of Bihar MANU/SC/1218/2004 : (2005) 3 SCC 592, Vaneet Kumar Gupta @ Dharmindher v. State of Punjab MANU/SC/1235/2009 : (2009) 17 SCC 587)."
Following the observations as quoted above, the scope of Section 15 of the JJ Act and the fact that the appellant No. 1 has, in the meantime, undergone imprisonment for more than 15 years, we set aside the sentence imposed on appellant No. 1 and remit the matter to JJ Board, Cuttack having jurisdiction to deal with the order to be passed under Section 15 of the JJ Act.
13. To sum up, this Court while confirming the judgment and order of conviction of appellant No. 1 under Section 302/34 IPC, read with Section 25 of the Arms Act, sets aside the order of sentence. The appellant No. 1 shall be set at liberty forthwith, if his incarceration is not required otherwise. However, taking into consideration the case laws (supra), we remit the matter to the JJ Board, Cuttack to pass appropriate orders in terms of Section 15 of the JJ Act. The appellant No. 1 is directed to appear before the concerned JJ Board on 25.10.2017 to receive further instruction in the matter.
We make it clear that we have not expressed any opinion on the merits of the case of appellant No. 2, namely, Kalia @ Sanjay Behera, which shall be considered separately.
I. Mahanty, J.
I agree.
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