2004 INSC 0414
                    SUPREME COURT OF INDIA

                    Upendra Kumar

                    Vs.

                    State of Bihar

                    C.A.No.No.370 of 2003

                    (Y.K. Sabharwal and B.N. Agrawal, JJ.)

                    31.03.2004

                    ORDER

Y.K. Sabharwal, J.

1. This appeal is directed against the impugned judgment of the High Court dated 17-5-2002,
whereby the criminal appeal filed by the appellant ^ challenging his conviction and sentence
under Section 302 IPC has been dismissed. The appellant was convicted for the offence
under Section 302 IPC for murder of one Chandeshwar Prasad in terms of the judgment of
the Court of Session, Muzaffarpur dated 3-10-1996. By order dated 4-10-1996, life
imprisonment was imposed on him. Other minor punishments under the provisions of the
Arms Act were also imposed on him for the offences for gf which too he had been found
guilty.

2. Mr A. Sharan, learned Senior Counsel appearing for the appellant, rightly did not
challenge the conviction of the appellant for the offences aforenoted. Learned counsel,
however, submits that the appellant is entitled to the benefit of the Juvenile Justice (Care and
Protection of Children) Act, 2000 since he was a juvenile both on the date of the occurrence
and the date ^ of his production before the court since both the dates in the present case
were the same, namely, 10-3-1995. Section 2{k) of the Juvenile Justice (Care and Protection
of Children) Act, 2000 (for short "the Act") provides that a "juvenile" or "child" means
a person who has not completed eighteenth year of age. The fact that on the date in question,
the appellant had not completed 18 years of age cannot be doubted as the aspect of age stands
fully established on the record. As per the report of the Medical Board, placed as Annexure A
to the appeal, the appellant was between the age of 17 and 18 years on the date of the report,
namely, 28-6-1995. Even the order of b sentence records the age of the appellant as 17
years.

3. Section 16 of the Act, inter alia, provides that no juvenile shall be sentenced to death or
life imprisonment, or committed to prison in default of payment of fine or in default of
furnishing security. A juvenile, under the provisions of the Act, can be referred to the

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Juvenile Board for such orders to be passed by the Board as it thinks fit in terms of Section
15 of the Act. Section 20 provides for special provision in respect of pending cases. It
provides that notwithstanding anything containing in the Act, all proceedings in respect of a
juvenile pending in any court in any area on the date on which the Act came into force in that
area shall be continued in that court as if the l-U · 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 the Act
as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.
The Act came into force on 1-4-2001. Therefore, PS when the High Court decided the
criminal appeal filed by the appellant, the Act had already been in force and the appellant
was entitled to the benefit thereof.

4. Mr Sharan has cited various decisions but reference may be made only Beian brr to the
case of Bhola Bhagat v. State of Bihar1 since earlier decisions on the issue in question have
been noticed therein. In Bhola Bhagat case1 referring to the decisions in the case of Gopinath
Ghosh v. State ofW.B.2, Bhoop Ram v. State of U.Pf3 and Pradeep Kumar v. State of U.P.4
this Court came to the conclusion that the accused who were juvenile could not be denied the
benefit of the provisions of the Act then in force, namely, the Juvenile Justice Act, 1986.
Utr

5. The course this Court adopted in Gopinath Ghosh case2 as also in Bhola Bhagat case1 was
to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In
the present case, at this distant time, the question of referring the appellant to the Juvenile
Board does not arise, ir : ^ Following the aforesaid decisions, we would sustain the
conviction of the appellant for the offences for which he has been found guilty by the Court
of c., Session, as affirmed by the High Court, at the same time, however, theec sentence
awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the
appellant is directed to be released forthwith if not required in any other case.

1 (1997) 8 SCC 720 : 1998 SCC (Cri) 125 3(1989) 3 SCC 1 : 1989 SCC (Cri) 486

21984 Supp SCC 228 : 1984 SCC (Cri) 478 41995 Supp (4) SCC 419 : 1995 SCC (Cri) 395

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