LexBHARAT BHUSHAN versus STATE OF HIMACHAL PRADESH
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[2013] 5 S.C.R. 1013 BHARAT BHUSHAN v. STATE OF HIMACHAL PRADESH (Criminal Appeal Nos. 628-629 of 2013) APRIL 26, 2013 [T.S. THAKUR AND DIPAK MISRA, JJ.] Penal Code, 1860 -s.376 - Rape of about 11 years old girl - Acquittal by trial court - Conviction by High Court relying A B on the evidence of witnesses and medical evidence - C Awarded sentence of 5 years and fine with default clause - Held: Conviction by High Court is justified - But since the accused was a juvenile under Juvenile Justice Act, 2000, High Court was not right in awarding sentence - High Court should have referred the case to Juvenile Justice Board for D sentence - However, in view of the facts that on the date of the present judgment, the accused was 36 years old, having family and has already undergone 3 years sentence, it would not be appropriate to refer the case to Juvenile Justice Board - Therefore, direction issued to release the accused from E custody - Juvenile Justice (Care and Protection of Children) Act, 2000 - ss.2(k), 2(1), 7-A, 20 and 49 - Juvenile Justice (Care 8nd Protection of Children) Rules, 2007 - rr.12 and 98. Juvenile Justice (Care and Protection of Children) Act, F 2000 - s. 20 - Applicability - Scope of - Held: As regards proceedings pending against a juvenile on the date the Act came into force, Court can record a finding regarding culpability of the accused, but cannot pass order on sentence · - For passing the sentence, the case should be referred to the Juvenile Board. G Appellant-accused alongwith another co-accused was prosecuted for having committed offence of rape upon a girl of about 11 years. Trial court acquitted both 1013 H f, 1014 SUPREME COURT REPORTS [2013] 5 S.C.R. A the accused. In appeal, High Court after appreciation of the evidence acquitted the co-accused. But found the appellant-accused guilty of the offence punishable u/ s.376 IPC. While passing sentence, the High Court rejected the plea of the accused that he was entitled to B benefit of provisions of s.20 of Juvenile Justice (Care and Protection of Children) Act, 2000, as he was below 18 years on the date of incident, and sentenced him to imprisonment of five years and fine of Rs.50,000/- with default clause. Hence the present appeals by the c appellant-accused against the conviction order as well as order of sentence. D Dismissing the appeal challenging the conviction order and allowing that challenging the order of sentence, the Court HELD: 1. On the date, the offence was committed, the appellant was admittedly a juvenile having regard to the provisions of Sections 2(k), 2(1), 7-A, 20 and 49 Juvenile Justice (Care and Protection of Children) Act, 2000 read E with Rules 12 and 98 of the Rules framed under the Act. · He was, therefore, entitled to the benefit of the said provision. [Para 10] [1022-C-E] Hari Ram vs. State of Rajasthan (2009) 13 SCC 211: F 2009 (7) SCR 623; Raju and Anr. vs. State of Haryana (2010) 3 SCC 235: 2010 (2) SCR 574; Dharambir vs. State (NCT of Delhi) and Anr. (2010) 5 sec 344: 2010 (5) SCR 137; Mohan Mali and Anr. vs. State of M.P. (2010) 6 SCC 669; Jitendra Singh @ Babboo Singh and Anr. vs. State of U.P. (2010) 13 SCC 523: 2010 (13) SCR 879; Daya Nand vs. G State of Haryana (2011) 2 SCC 224: 2011 (1) SCR 173; Shah Nawaz vs. State of U.P. and Anr. (2011) 13 SCC 751: 2011 (9) SCR 859; Amit Singh vs. State of Maharashtra and Anr. (2011) 13 sec 744: 2011 (9) SCR 890 - relied on. H Pratap Singh vs. State of Jharkhand and Anr. (2005) 3 '1 BHARAT BHUSHAN v. STATE OF HIMACHAL 1015 PRADESH • SCC 551: 2005 (1) SCR 1019; Jameel vs. State of A , Maharashtra (2007) 11 SCC 420: 2007 (1) SCR 946; Ranjit Singh vs. State of Haryana (2008) 9 SCC 453: 2008 (13) SCR 332 - referred to. - 2.1. As per s.20 of the 2000 Act, the proceedings 8 • pending against a juvenile in any Court as on the date the 2000 Act came into force, had to continue as if the 2000 Act had not been enacted. Section 20 obliges the Court concerned to record a finding whether the juvenile has committed any offence. If the Court finds the juvenile guilty, it is required under the above provision to forward C the juvenile to the Juvenile Board which would then pass an order in accordance with the provisions of the Act as if it had been satisfied on enquiry under the Act that the juvenile had committed an offence. [Para 12) [1023-E-F] 2.2. In the present case, the appellant was
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