Judgment:
Sadanand Mukherjee, J.
1. Heard the parties.
2. This is an application for bail for the offences punishable under Sections- 324, 307 and 302 of the I.P.C. The prosecution case is that the petitioner inflicted dagger injury to the deceased Sarita Jha in presence of the informant, who also triad to save her sister. The informant was also assaulted by the petitioner with dagger, deceased Sarita Jha succumbed to the injuries.
3. The main contention on behalf of the petitioner is that the alleged offence was committed on 24.3. 2000 when the Juvenile Justice Act, 1986 was in force, and as par provisions of the said Act the petitioner ceased to be a juvenile and as such his case was treated as a general one and his trial proceeded in the trial court, while trial proceeding Juvanile Justice (Care and Protection of Children) Act, 2000 came into force on 1.4.2001, as amended in the year, 2006 which contemplaces that 'Juvanile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteen year of age as on the date of commission of such offence.
4. Presently, the Juvenile Justice (Care and Protection of Children) Amended Act, 2006 with effect from 22.8.2006 lays down as follows:
1. Short Tile, Extent (Commencement and application)
(4) Notwithstanding anything contained in any other law for the tine being in force, the provisions of this Act shall apply to all cases involving detention, prosecution penalty or sentence of imprisonment of juvenile in conflict with law under such other law,
5. On behalf of the petitioner it has also been contended that Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 removes some misunderstanding regarding juvenile who ceased to be a juvenile before the commencement of Juvenile Justice (Care and Protection of Children) Act, 2000 and lays down special provision in respect of pending cases which reads as follows:
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 bean 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 and which shall pass orders in respect of that juvenile in accordance with the provisions of this Act and as if it had bean satisfied on inquiry under this Act that a juvenile has committed the offence.
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 cases 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 ell purpose and at all material times and when the alleged offence was committed.
6. It has been submitted that the maximum punishment given to a juvenile is three years, but since the petitioner has already been spent more than double of the maximum prescribed period in jail, he is entitled to be enlarged on bail.
7. With reference to the order of this Court passed in Cr. Misc. No. 26296 of 2005, whereunder a Medical Board was constituted and on computation of age, the age of the petitioner on 1.4.2001, when the Juvenile Justice (Care and Protection of Children) Act, 2000 was made enforcible the petitioner was below 18 years, i.e, being 17 years 8 months and 9 days. It has been submitted that the case of the petitioner may be considered under Juvenile Justice (Care and Protection of Children) amended Act, 2006 and Section 20, as per 'Explanation' above, shall be applicable for determination his juvenility, for all intent and purposes under the aforesaid Act and the petitioner shall be treated to be a juvenile under the Act, 2000. The petitioner also relied upon Section 436A of the Code of Criminal Procedure, as incorporated in 2006 and made effective from 23.6. 2006, no parson shall in any case be detained during the period of trial for more than half of the maximum period of the imprisonment provided for the said offence under that law.
8. It is worthwhile to mention hare that a Bench of this Court in Cr. Misc. No. 26296 of 2005 (Amit Kumar Thakru @ Amit Ranjan Thakur v. The State of Bihar) rejected an application of this petitioner filed under Section 482 of the Code of Criminal Procedure, which was directed against the order of 1st Additional District & Sessions Judge, Madhubani in S.T. No. 253 of 2001, by which the learned court below rejected the petition filed on behalf of the petitioner to send his case to the Juvenile Court for the purpose of holding an enquiry under Section-33 of the Juvenile Justice (Care and protection of Children) Act, 2000.
9. On behalf of the petitioner reliance has been placed in the case of Upendra Kumar v. State of Bihar reported in 2005 (3) SCC page 592 and in the case of Pratap Singh v. The State of Jharkhand and Ors. reported in 2005 SCC (Crl.) page- 742.
10. So far as the judgment reported in : 2006CriLJ2791 , cited by the petitioner, is concerned, the same relates to the reckoning factor of determination of juvenility and also the manner of accepting the standard of (sic). The decision of Constitution Bench in the case of Pratap Singh v. State of Jharkhand and Ors. reported in : 2005CriLJ3091 has been reiterated that the determination of age of the child should be made or the basis of date of commission of offence.
11. It is not disputed that or the date of commission of offence this petitioner was at the age of 16 years 7 months the occurrence had taken place on 23.3.2000. Since on the date of commission of offence this petitioner had crossed the age limit of 16 years on the aforesaid date, he was not a juvenile on the basis of Juvenile Justice Act, 1986. It is manifest that 2000 Act came into force on 1.4.2001. In the case of Pratap Singh v. State of Jharkhand, it was held in para- 3A as follows:
(a) The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.
12. But the main thrust of the contention of the petitioner is that with the enactment of Juvenile Justice (Care and Protection of Children) amended Act, 2006 , the provisions of Act of 2001 shall apply to all cases involving detention, prosecution, penalty and sentence of imprisonment of a juvenile in conflict with law under such other law, besides that the 'Explanation' contained in Section 20 of Juvenile Justice (Care & protection of Children) Act, 2000 as quoted above, clearly indicates that for the purpose of determining the juvenility of a juvenile in conflict with law the same 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.
13. It will be relevant to mention here that the question for consideration in this connection will be whether even considering the provisions of the amended Act, the petitioner will be covered under 2000 Act so as to bring him within the ambit of the aforesaid Act.
14. In the case of Pratap Singh (Supra) in its para-3, the following condition has bean laid down:
(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the parson had not completed 18 years of age as on 1 .4.2001.
15. Hence, in order to ensure application of Act 2000, a proceeding against the petitioner must be pending under 1986 Act.
[Emphasis supplies]
16. In the case of Bijendra Singh v. State of Haryana and Anr. reported in 2005 A.I.R. SCW, page-2049, it was held as follows:
P.12: Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Boar d for the purpose of a sentencing which takes care of a situation that the parson although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose .
P. 13: Section 20 of the 2000 Act would, therefore, be applicable when a person is below the age of 18 years as on 1.4.2001. For the purpose of attracting Section 20 of the said Act, it must be established that : (i)on the date of coming into force the proceedings in which the petitioner was accused was pending, and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. By reason of the provisions of the 2000 Act, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefor as contained in Section 20 or Section 64 are fulfilled.
P. 14: The embargo of giving a retrospective effect to a statute arises only when it takes away vested right of a person. By reasons of Section 20 of 2000 Act no vested right in a person has been taken away, but thereby only an additional protection had been provided to a juvenile.
P.15: Provisions of 2000 Act would be applicable to those cases initiated and pending trial/ enquiry for the offences committed under 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. In the instant case undisputedly the respondent No. 2 accused had Completed 18 years of age before 1.4.2001.
17. Even if the new provisions contained in amended Act, 2006 both in respect of 'Extent (commencement and application' as well as 'Explanation' of Section 20 which deals with definition of juvenility are taken into consideration in view of the fact that on the date of commencement of the Act, no proceeding was pending against the petitioner under 1986 Act in a Court of law or before any authority as on 1.4.2001, the new amended enactment cannot be pressed into service to bring the petitioner within the ambit of benefit of Juvenile Justice (Care & protection of Children) Act, 2000 for the purpose of bail and the consequent benefit Under Section 436(A) of the Criminal Procedure Code shall not also be accrued to the petitioner, more so in view of the aforementioned decision in the case of Pratap Singh v. The State of Jharkhand (supra) being a decision of constitution Bench of the Hon'ble Supreme Court and the decision of the Hon'ble Supreme Court in the case of 'Bijendra Singh v. State of Haryana,' (supra) since no proceeding un the 1986 Act was pending under 1986 Act during commencement of 2001 Act on 1 .4.2001, the petitioner shall not be rendered the benefit of Amended Act of 200 6.
18. However, a report was called for from the court below and from the report it appears that the trial is at the fag end.
19. The court below is directed to conclude the trial without delay, and if needed, the trial be proceeded on day to day basis.
20. The bail application of the petitioner is rejected with the above observation.