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Juvenile Justice System

Selected Judgements

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B al

Sakha

Sinc

e 1988

Courtesy by :
Bal Sakha, Manju Niwas, House No. - 36, Road No. - 1,
New Patliputra Colony, Patna, 800013, Bihar

Conceptualized and compiled by


Nawaz ul haque, Programme coordinator, Justice for minors, Bal Sakha.
Assisted by Justice for minors team
J.P Singh, Pranav Kumar,
Praksah Kumar, Surya Chatterjee
Supported by:
Terre des Hommes Suisse.

FOREWORD
Bal Sakha is a registered social organization working for the rehabilitation and
mainstreaming of the street children since 1984 in Jharkhand and Bihar. It is non-political and
secular organization working towards initiation and development of civic and societal
processes congenial for universal child development. Simply put, Bal Sakha is a friend of
children and strives for the protection of their rights and positive development on every
sphere of life.
Our primary constituencies have been children in need of care and protection and
children in conflict with the law. In this realm are runaway children, vagrant and working
children on the street or on railway platforms, children languishing in different government
run correctional institutions, trafficked children, and children being kept in detention or at
times in police lock-ups or jails.
The rights of children in conflict with the law and the effective implementation of a
humane and child-friendly Juvenile Justice system are at the centre of Bal Sakha's
endeavour to build a child-centred society so that children, especially those in difficult
situations, are not implicated in crime.
The purpose of this document is to disseminate important judgements of Apex Court
and other High Courts relevant to different sections of juvenile justice Act, 2000 & its
amendments to the members of Juvenile Justice Board (JJB), District legal service authority
(DLSA) lawyers including private lawyers to enhance their knowledge base on judicial
perspective.
In putting together important case judgements in this document we aim to make a
valuable contribution for all the NGOs, civil society organization, individuals who are working
in the field of Child rights.
We anticipate that this document will definitely provide better understanding of legal
provisions of the JJ Act in judicial perspective and also useful reference for advocacy and
policy making.

Sanat Kumar Sinha


Chief Coordinator
Bal Sakha
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CONTENT

Pg No.

1.

Foreword

2.

Introduction

3.

Section-1

BAIL

Alok Kumar Dubey V State of Bihar

Bir Bahudur Chaoudhry V State of Bihar

Mikki sharma @ mani bhushan sharma

Versus the state of Bihar

4.

Section-2

Shashibala Rai @ Shashiraj V State of Bihar

11

Determination Of Age And Juvenility

14

Ashwani Kumar Saxena V state of M.P

16

Chandan Kumar Gandhi @ Ganna V State of Bihar

31

O Om Prakash V State of Rajasthan & Anr

37

Ram suresh singh V

48

Prabhat Singh @ Chhotu Singh & Anr

5.

6.

7.

8.

Section-3

Section-4

Section-5

Section-6

Ravinder Singh Gorkhi V State of U.P

54

Sanjeet Kumar Gupta @ Mantoo Kumar V State of Bihar & Anr

63

PENDENCY & PENDING CASES

65

Hari Ram V State Of Rajasthan & Anr

66

Lal Mohammad V The State (Govt Of Nct Delhi )

82

OTHER IMPORTANT CASES FOR REFERENCE

90

Salil bali V. Union of India & Anr.

106

Indian Inhabitants V Unknown

124

ARREST, DETENTION AND HANDCUFFING

135

Prem Shankar Shukla V Delhi Administration

136

SPEEDY DISPOSAL

146

Hussainara Khatoon and others V Home secretary, State of Bihar 147


Joginder Kumar V State of U.P. And others
-2-

149

INTRODUCTION
Recognizing the need of lawyers and Juvenile Justice Board members to be aware of
important judgements / orders of Apex court and High courts for adding extra mile in
their wisdom and widen their knowledge base; this handbook has been developed to
acquaint all those stakeholders and organization involved in the implementation of
Juvenile Justice Act, 2000 & its amendments.
Indeed there is a lot of painstakingly work and long process of identifying and
collecting different cases covering several issues like Bail, determination of
age/juvenility, pendency of cases, sentencing etc. In order to bring uniformity in
understanding and to ensure easy applicability of the law, above said issues were
covered in judicial perspective.
In some of the Apex court cases the honourable court not only covered the particular
issue raised in cases but elaborately examine the objectives of the juvenile justice Act,
2000 & its amendments within the constitutional framework and international
instruments like united Nation Convention on the Rights of Child (UNCRC) and United
Nations standard minimum Rules for the administration of juvenile justice, 1985,
commonly known as Beijing Rules.
Moreover we also added some important rulings of higher judiciary in respect of
handcuffing, arrest and detention and speedy disposal of cases. It is necessary to
mention that in some judgements we refer important part of the whole judgement to
understand the essentials and spirit of the law.
We also added some judgements before year 2000 for better understanding and
thoughtful approach for the implementers of law and administration of justice.
We hope that this document which is based on different reportable judgements and
orders of Honourable Supreme Court and High Courts would be useful not only to
concerned stakeholders but also the students of law who are very much interested in
procedural juvenile laws.

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BAIL
The literal meaning of the bail is surety, means a security such as cash or a bond,
especially security required by court for the release of prisoner must appear at a further
time [Black Law Dictionary, 7th edn, p.135]. Another definition of Bail is temporary
release of a prisoner in exchange for security given for the prisoner's appearance at
later hearing [Webster dictionary of law, Indian Edn., (2005),p.41. Failure of the person
released on bail to surrender himself at the appointed time results in forfeiture of the
security.

Bail in Juvenile Justice Act, 2000


Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 says
that,
(1)

When any person accused of a bailable or non-bailable offence, and


apparently a juvenile, is arrested or detained or appears or is brought before a
Board, such person shall, notwithstanding anything contained in the Code of
Criminal Procedure, 1973 or in any other law for the time being in force, be
released on bail or placed under the supervision of a Probation Officer or
under the care of any fit institution or fit person but he shall not be so released if
there appear reasonable grounds for believing that the release is likely to bring
him into association with any known criminal or expose him to moral, physical
or psychological danger or that his release would defeat the ends of Justice.

(2)

When such person having been arrested is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall
cause him to be kept only in an observation home in the prescribed manner
until he can be brought before a Board.

(3)

When such person is not released on bail under sub-section (1) by the Board, it
shall, instead of committing him to prison, make an order sending him to an
observation home or a place of safety for such period during the pendency of
the inquiry regarding him as may be specified in the order.

-4-

Alok Kumar Dubey vs The State of Bihar on 13 June, 2011


IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No. 17932 of 2011
ALOK KUMAR DUBEY
Versus
THE STATE OF BIHAR

A prayer has been made on behalf of the petitioner under Section 438 Cr. P.C. for
grant of anticipatory bail in Gaurichak P.S.Case No. 44 of 2011.
It does not appear from the rejection order that the petitioner had raised a plea of
being a Juvenile before the learned Sessions Judge, Patna, when he had preferred
anticipatory bail application no. 2033 of 2011.
However, the attention of the Court was drawn to annexure-3 which is the admission
card issued in favour of the petitioner by the Bihar School Examination Board, Patna,
permitting him to appear at the Secondary Examination, 2011 which was to commence from
23.2.2011. As per entries in respect of the date of birth made in annexure-3, the petitioner
appears to be born on 5.8.1996 and, thereby, claims himself to be around 16 years of age. If
this could be the plea and if this could be the age which has been pointed out to the Court by
placing the record admissible under the relevant rules framed under the Juvenile Justice
(Care and Protection of Children) Act, 2000, the Court simply parts with the jurisdiction under
Section 438 Cr. P.C. in view of the fact that there is a complete bar of entertaining such a
petition in the light of Section 4 of the Cr,. P.C. which reads as under:"Trial of offences under the Indian Penal Code and other laws.-(1) All offences under
the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise
dealt with according to the provisions hereinafter contained. (2) All offences under any other
law shall be investigated, inquired into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force regulating the manner or
place of investigating, inquiring into, trying or otherwise dealing with such offences.
It hardly requires to be pointed out that the Juvenile Justice ( Care and Protection of
Children) Act, 2000 is a social beneficial legislation which targets special segment of
offenders who are defined as juveniles as contained in Section 2 (l) of the said Act which lays
down full-fledged procedure as to how the inquiry has to be made, how the prayer for release
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of such accused shall be entertained and it further creates different jurisdictions in the form of
Juvenile Justice Boards which are established in every Judgeship. This is the reason that I
have indicated that this Court has to part with the present petition as the same could not be
maintained under the general provision of Section 438 Cr. P.C. as there is special provision
by virtue of Section 12 of the said Act.
In that view, this petition stands dismissed as not maintainable. However, the
petitioner has to appear before the Juvenile Board and has to agitate the point which he has
raised in this petition before it so that the Juvenile Justice Board, Patna embarks upon an
inquiry under Section 49 of the Act so as to reaching a conclusion as regards the claim of the
petitioner of being a juvenile. I hold the view that, if such a plea is raised and the case
appears of such class as necessitating holding of an inquiry, due to the case of the accused
being covered by the term ' apparently appears to be a juvenile' as appears in Section 12 of
the Act, then it shall be advisable to the Juvenile Justice Boards that they should not remand
such an accused to custody rather they should require the parents of such an accused to
execute a bond and release the person on execution of bond by their parents for such period
as may be consumed in holding the inquiry and rendering a decision on the plea of juvenility
as raised before it. I direct the Juvenile Justice Board, Patna, to abide by the above
observation of mine as soon as the petitioner appears to raise a plea of being a juvenile
before it and not to remand him to custody till the Board has finally concluded the inquiry and
has recorded its finding. It may, in the alternative, ask the parents of the petitioner to execute
bond as per its satisfaction and release him.
This petition is disposed of with the above observation.
Let this order be communicated to the Juvenile Justice Board, Patna, in connection
with Gaurichak P.S.Case No. 44 of 2011, through fax at the cost of the petitioner.

Kanth ( Dharnidhar Jha, J.)

-6-

IN THE HIGH COURT OF JUDICATURE AT PATNA


CR. REV. No.343 of 2010
BIR BAHADUR CHAUDHARY S/o Nathuni Chaudhary, Vill. Ahir
Toli, Daudnagar, P.S. Daudnagar, Dist. Aurangabad.
Versus
1.

THE STATE OF BIHAR

2.

Etwaria Devi,W/o Dinanath Prasad, R/o Mohalla-Mahabir


Chabutra, Ward No. 14, P.S. Daudnagar, Dist. Aurangabad.

2/ 11.03.2010 Heard learned counsel for the petitioner and learned counsel for the
Opposite Parties. Literature and philosophy appear more effective while disposing of this
case. Science effecting ability to sex is one thing and that is prohibited is another thing. In
India, marriage was being solemnized of minors, for that preventive measure was taken to
not marry a girl before 18 and a boy before 21 but below 18 and 21 they will not be able to
have sex or that is not developed is quite different thing. Without having knowledge in depth,
Judicial Officer should avoid to make comments on that side. Admittedly, the victim and the
petitioner are minors. Both indulged in sexual act. Liability upon the petitioner is that he took
the girl with him to different places and indulged in sex with her but there appeared no
abnormality if nature was prohibiting for sex. Once, a lady specifically a minor girl is
assaulted sexually, there is every kind of humiliation and observation of the Additional
Sessions Judge is correct to that extent. But he never cared treatment which should be given
to a juvenile, who is able to have sex. Law is also prohibiting him but not nature.
At the one hand, nature of the offence is against him but privilege under Section 12 of
the Juvenile Justice Act is there in his favour. In no case, gravity of the offence is to be taken
into consideration while considering bail to a Juvenile in conflict with law. It can be only
denied if it appears reasonable ground for believing that release is likely to bring him in
association with any known criminal or expose him moral, physical or psychological danger
or that his release would defeat the ends of justice. There is nothing mentioned that he was in
contact with any known criminal and how there was any exposure to him to moral, physical
and psychological danger or his release would defeat the ends of justice nor explained nor
clarified and in my view that is not existing.
Thus, the conclusion reached by the learned Additional Sessions Judge-Ist,
Aurangabad as well as Juvenile Justice Board, Aurangabad is not liable to be sustained.
-7-

Accordingly, the revision application is allowed and order dated 10.02.2010 passed by the
Ist Additional Sessions Judge, Aurangabad in Cr. Appeal NO. 52 of 2009/02 of 2010 and the
order dated 19.11.2009 passed by the Juvenile Justice Board, Aurangabad in G.R. No. 500
of 2009, Tr. No. 418 of 2009 arising out of Daudnagar P.S. Case No. 141 of 2009 are hereby
set aside.
Let the above named petitioner be released on bail on furnishing bail bond of Rs.
10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of
Principal Judicial Magistrate, Juvenile Justice Board, Aurangabad in connection with GR.
No. 500 of 2009, Tr. No. 418 of 2009 arising out of Daudnagar P.S. Case No. 141 of 2009.
One of the bailers shall be the father of the petitioner, who would undertake to keep
the petitioner under his observation and control and produce whenever is required by the
Juvenile Justice Board or Court.
Let the order be communicated through F.A.X. at the cost of the petitioner.

( Mandhata Singh, J.)

-8-

IN THE HIGH COURT OF JUDICATURE AT PATNA


CR. REV. No.1491 of 2009
MIKKI SHARMA @ MANI BHUSHAN SHARMA
Versus
THE STATE OF BIHAR
11.9.2009 Heard learned counsel for the petitioner and the State The submission of
learned counsel for the petitioner is that petitioner has been declared juvenile even then his
prayer for bail has been refused by the court below for the allegation of his committing rape
upon a girl.
According to learned counsel, once an inquiry is held and any one is assessed as
juvenile that is final till its remaining in force which can be set aside by the appellate or
revisional court only. But in the case some mistake appears to be committed by the learned
Sessions Judge that he has refused the prayer for bail assessing the age on appearance
while section 12 of Juvenile Justice (Care and Protection of Children) Act, 2000 speaks as
follows:
"12. Bail of Juvenile.(1)

When any person accused of a bailable or non- bailable offence, and apparently a
juvenile, is arrested or detained or appears or is brought before a Board, such person
shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974) or in any other law for the time being in force, be released on bail with or
without surety but he shall not be so released if there appear reasonable grounds for
believing that the release is likely to bring him into association with any known criminal
or expose him to moral, physical or psychological danger or that his release would
defeat the ends of justice.

(2)

When such person having been arrested is not released on bail under sub-section (1)
by the officer incharge of the police station, such officer shall cause him to be kept only
in an observation home in the prescribed manner until he can be brought before a
Board.

(3)

When such person is not released on bail under sub-section (1) by the Board it shall,
instead of committing him to prison, make an order sending him to an observation
home or a place of safety for such period during the pendency of the inquiry regarding
him as may be specified in the order." So, after going through section 12 of the Act it is
apparent that after appearance if apparently the accused appears juvenile, he shall be
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allowed bail but that cannot be refused assessing him major that also in the case when
age is assessed by an inquiry. Once an inquiry is held, the option of apparently
assessing any one juvenile comes to an end.
The act of rape is an individual act often committed due to being immature, so it
cannot be said that the release of a juvenile in conflict with law would defeat the ends of
justice. Father of juvenile is there to undertake to keep juvenile under his observation and
further to produce him whenever is required by the Juvenile Justice Board.
However, this revision application is allowed and the judgment and order dated
17.8.2009 passed by Sri Akhilesh Kumar Jain, Sessions Judge, Jehanabad in Cr.Appeal no.
47/2009 confirming the order dated 17.7.2009 passed by Juvenile Justice Board,
Jehanabad in Tr.no. 63(J)/2009 arising out of Paras Bigha P.S.Case No. 39/2005 is set
aside. Let the above named petitioner be released on bail on furnishing bail bond of
Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of
Juvenile Justice Board, Jehanabad in Tr.No. 63(J)/2009 arising out of Paras Bigha P.S.Case
No. 39/2005.
It is made clear that one of the bailer shall be petitioner's father who shall undertake
to keep the petitioner under his observation and shall produce him whenever is ordered by
the Juvenile Justice Board.

(Mandhata Singh,J.)

- 10 -

IN THE HIGH COURT OF JUDICATURE AT PATNA


Criminal Revision No.321 of 2012
1. Shashibala Rai @ Shashiraj, S/O Naresh Rai, R/O Village - Jitbarpur Nijamat
Kanhaiya Chauk, P.S. Muffasil, District - Samastipur.
2. Raushan Kumar S/O Late Jagdish Rai R/O Village - Jitbarpur Nijamat Kanhaiya
Chauk, P.S. Muffasil, District - Samastipur. .... .... Petitioner/s
Versus
The State Of Bihar .
.... .... Opp. Party/s
Appearance :
For the Petitioner/s

: Mr.

For the Opp. Party/s

: Mr.

CORAM : HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH


ORAL ORDER
20-03-2012 Heard Mr. Bijay Bhushan Prasad, learned counsel for the petitioners,
Mr. Satyavrat Verma, learned A.P.P. for the State and Mr. Ajay Kumar learned counsel for the
informant, who has suo motu appeared.
This application is for grant of bail to the petitioners under the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the
'Act'). Earlier such prayer was rejected by the Juvenile Justice Board, Samastipur in Tr. No.
474 of 2012, G.R. No. 1852 of 2011 pertaining to Samastipur Muffasil P.S. Case No. 512 of
2011. The appeal was also dismissed on 07.02.2012 by the Additional Sessions Judge-II,
Samastipur in Cr. Appeal No. 06 of 2012.
The petitioners among others are accused in Samastipur Mufassil P.S. Case No.
512 of 2011 dated 25.08.2011 registered for offence under Sections 147, 148, 149, 447, 448,
341, 323, 302, 504 and 120(B) of the Indian Penal Code.
Learned counsel for the petitioner submits that the informant of the present case is
an accused in a case which was filed prior to the present case being Samastipur Mufassil
P.S. Case No. 512 of 2011 in which also a person had died in which the father, brother and
other relatives of the informant as well as the deceased of the present case among others
were named accused. It is submitted that in fact the deceased in the present case was
himself a history sheeter and the dispute between the parties arose on the issue of payment
of rangdari tax to the deceased. It is submitted that the deceased in the other case was
brutally assaulted and when he was taken to the hospital, he was pronounced dead and this
enraged the persons who attacked and killed the deceased in the present case. It is
- 11 -

submitted that the reason for implication of the petitioners has been explained in paragraphs
9 and 10 of the present application which go to show that the petitioners have been made
accused because of past and admitted enmity between the parties. Learned counsel has
Shashibala Rai @ Shashiraj & Anr. vs The State Of Bihar on 20 March, 2012submitted that
both the petitioners have been declared to be a juvenile upon proper enquiry by the Juvenile
Justice Board in which the informant had tried to raise a controversy with regard to the date of
birth which was ultimately settled in favour of the petitioners after calling for the school
records. Learned counsel has assailed the order rejecting bail on the ground that firstly, the
same has been erroneously done only on the presumption that the petitioners will be
involved with known criminals and that it was against the ends of justice to release him on
bail. For the said proposition, learned counsel has relied on the following decisions in the
case of :(i)

Mantu Kumar Vs. State of Bihar, reported in 2010 (1) PLJR 916, the relevant being at
paragraph 6.

(ii)

Rahul Mishra Vs. State of M.P., reported in 2001 Cri. L. J. 214, the relevant being at
paragraph-5.

(iii)

Sandeep Vs. State of Chhattisgarh, reported in 2007 Cri. L.J. 1942, the relevant being
at paragraphs- 4 and 5.

(iv) Sanjay Kumar Vs. State of U.P., reported in 2003 Cri. L.J. 2284, the relevant being at
paragraph-4.
(v)

Ranjeet Kumar Rai Vs. State of Bihar, reported in 2012 (1) PLJR 703, the relevant
being at paragraph-4.

(vi) Sanjay Kumar Vs. State of Jharkhand, reported in 2009 (3) BLJ [JHC-10].
Learned counsel for the petitioners, on the basis of the abovementioned judgments,
has stated that there has to be some material before the court to show as to why the release
would defeat the ends of justice and would not mean guess work of the court for the same
should be substantiated by some evidence on record. Further, 'accused' is a person against
whom only an allegation has been made whereas 'criminal' is one who has committed a
crime and the language of Section 12 (1) the Act clearly refers that bail may be refused if it
appears that release of the juvenile in conflict with law would bring him in association with any
'known criminal' and in the present case even if it is taken to be true that he was involved in
the alleged crime alongwith his other friends then also they are only 'accused' and not 'known
criminal'.
Learned A.P.P. for the State has referred to the portion in the impugned appellate
order to show that the petitioners had criminal antecedent and that went to show that they
would be in the society of known criminals which was a good reason to refuse bail as per the
provisions of Section 12 (1) of the Act itself.
Learned counsel for the informant has submitted that the petitioners are not juvenile
and that this court may direct for getting them medically examined so that the provisions of
the beneficiary legislation are not misused by unscrupulous elements with criminal tendency.
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Learned counsel for the petitioners, by way of reply to the contention of the learned
A.P.P., has submitted that the said observation in the appellate order is based on the
supervision note of the case which, according to him, is neither part of the police papers nor
can be relied upon since it is only an internal communication with regard to the case. For this
proposition he has relied upon the judgment of this Court in the case of Manilal Keshri Vs.
State of Bihar, reported in 2006 (4) PLJR 32. As far as the contention of the learned counsel
for the informant is concerned, learned counsel for the petitioners has pointed out to
paragraph 20 of the application where it is stated that on the point of juvenility, the informant
being aggrieved had moved in appeal and the same was dismissed after which the informant
has not moved and thus the matter, as of now, had attained finality.
Learned counsel for the petitioners has concluded his argument by submitting that
the petitioners are in custody since 23.09.2011 and that in any view of the matter, are entitled
to the privilege of bail under the Act for which the parents/close relatives were ready to give
undertaking so as to ensure that the petitioners do not come in bad company and live a
disciplined life.
Considering the facts and circumstances of the case as well as the submissions of
learned counsel for the parties and going through the materials on record, this Court is
inclined to agree with the submissions of the learned counsel for the petitioners. The
petitioners may have been involved in an incident which cannot be said to be lawful, but as
per the provisions of the Act, are entitled to get an opportunity to come into the mainstream of
society since the spirit of the Act is not to punish them but to facilitate their rehabilitation.
Further, nothing substantial has come on record so as to establish that refusal of bail would
either not be in the interest of juvenile themselves or would lead them to getting into company
of known criminals or would not be in the ends of justice.
For the reasons aforesaid, this application stands allowed.
Let both the petitioners be released on bail on furnishing bail bond of Rs.10,000/(ten thousand) each with two sureties of the like amount each to the satisfaction of the
Juvenile Justice Board,
Samastipur in connection with Tr. No. 474 of 2012, G.R. No. 1852 of 2011 pertaining
to Samastipur Mufassil P.S. Case No. 512 of 2011. One of the bailors in the case of petitioner
no. 1 should be the father whereas in the case of petitioner no. 2 it will be the paternal uncle.
Both the petitioners as well as their bailors shall also execute a bond of good behaviour and
that they shall not indulge in any criminal activity before the court concerned. The bailors
shall also indicate that they would ensure that the petitioners do not get into bad company.
Any violation of the terms and conditions of the bail shall lead to automatic cancellation of the
bail. The petitioners shall physically present themselves before the Probation Officer,
Samastipur at least once a month and also as and when directed by him. The Probation
Officer, Samastipur shall maintain strict supervision over the petitioners.

(Ahsanuddin Amanullah, J) Anjani/- 13 -

DETERMINATION OF AGE / JUVENILITY


Simply Juvenility means the time of life between childhood and maturity.
In India A person, who has not completed 18 years of age falls within the definition of
a juvenile, as per section 2(k) of the Juvenile Justice Act, 2000. Section 2 (i) defines a juvenile
in conflict with law, as a juvenile who is alleged to have committed an offence. Section 7A of
the Act outlines the procedure to be followed when a claim of juvenility is raised.
The Relevant provisions of the juvenile justice Act, 2000 are:
Section 7A Procedure to be followed when claim of juvenility is raised before
any court.
(1)

Whenever a claim of juvenility is raised before any court or a court is of the opinion that
an accused person was a juvenile on the date of commission of the offence, the court
shall make an inquiry, take such evidence as may be necessary (but not an affidavit)
so as to determine the age of such person, and shall record a finding whether the
person is a juvenile or a child or not, stating his age as nearly as may be :
Provided that a claim of juvenility may be raised before any court and it shall be
recognised at any stage, even after final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act and the rules made there
under, even if the juvenile has ceased to be so on or before the date of commencement
of this Act.

(2)

If the court finds a person to be a juvenile on the date of commission of the offence
under sub-section (1), it shall forward the juvenile to the Board for passing appropriate
order, and the sentence if any, passed by a court shall be deemed to have no effect.

Rule 12. (Read Rule 11 in Bihar Juvenile Justice Rule, 2012) Procedure to be followed
in determination of Age.
(1)

In every case concerning a child or a juvenile in conflict with law, the court or the Board
or as the case may be the Committee referred to in rule 19 (Read Rule 20 in Bihar
Juvenile Justice Rule, 2012) of these rules shall determine the age of such juvenile
or child or a juvenile in conflict with law within a period of thirty days from the date of
making of the application for that purpose.

(2)

The Court or the Board or as the case may be the Committee shall decide the juvenility
or otherwise of the juvenile or the child or as the case may be the juvenile in conflict
with law, prima facie on the basis of physical appearance or documents, if available,
and send him to the observation home or in jail.
- 14 -

(3)

In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining (a) (i) the matriculation or equivalent
certificates, if available; and in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted Medical Board, which will declare the age
of the juvenile or child. In case exact assessment of the age cannot be done, the Court
or the Board or, as the case may be, the Committee, for the reasons to be recorded by
them, may, if considered necessary, give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year. and, while passing orders in
such case shall, after taking into consideration such evidence as may be available, or
the medical opinion, as the case may be, record a finding in respect of his age and
either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof of the age as regards such child or the
juvenile in conflict with law.

(4)

(read clause 5 in Bihar Juvenile Justice Rule, 2012) If the age of a juvenile or child
or the juvenile in conflict with law is found to be below 18 years on the date of offence,
on the basis of any of the conclusive proof specified in sub-rule (3), the court or the
Board or as the case may be the Committee shall in writing pass an order stating the
age and declaring the status of juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to such juvenile or the (read parent
/guardian/ in Bihar Juvenile Justice Rule, 2012) person concerned.
[Clause 4 in Bihar Juvenile Justice Rule, 2012 says that the duly constituted
board shall submit medical opinion to the concerned authority within one week
from the date of receipt of the order]

(5)

Save and except where, further inquiry or otherwise is required, inter alia, in terms of
section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining the certificate or any other
documentary proof referred to in sub rule (3) of this rule.

(6)

The provisions contained in this rule shall also apply to those disposed off cases,
where the status of juvenility has not been determined in accordance with the
provisions contained in sub rule(3) and the Act, requiring dispensation of the sentence
under the Act for passing appropriate order in the interest of the juvenile in conflict with
law.

- 15 -

Supreme Court of India


Ashwani Kumar Saxena vs State Of M.P on 13 September, 2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1403 OF 2012
Special Leave Petition (Crl) No. 7271 of 2011
Ashwani Kumar Saxena .. Appellant
Versus
State of M.P. Respondent
JUDGMENT
K. S. RADHAKRISHNAN, J.
1.

Leave granted.

2.

We notice that large number of cases are being brought before this Court against
orders passed by the criminal courts, on the claim of juvenility under Section 7A of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the J.J. Act) read
with Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for
short the 2007 Rules), primarily for the reason that many of the criminal courts are not
properly appraised of the scope of enquiry contemplated under those statutory
provisions. We find it appropriate in this case to examine the nature of inquiry
contemplated under Section 7A of the J.J. Act read with Rule 12 of the 2007 Rules, for
future guidance and application by the Courts, Boards and the Committees functioning
under the J.J. Act and Rules.

3.

Before considering the above question and other related issues, we may examine,
what transpired in the case on hand. Appellant Ashwani Kumar Saxena and two others,
namely, Jitender and Ashish were charge-sheeted for the offences punishable under
Section 302 of the Indian Penal Code (for short the IPC) read with Section 27 of Arms
Act and Section 302 IPC read with Section 34 of the IPC, respectively, for an offence
committed on 19.10.2008 at 12.30 am in front of Krishna Restaurant, Chhatarpur
which resulted in the death of one Harbal Yadav for which Sessions Case No.28/09 was
pending before the First Additional Sessions Judge, Chhatarpur, Madhya Pradesh
(M.P.). On 11.11.2008 the appellant filed an application before Chief Judicial Magistrate
(CJM) Court, Chhatarpur under Sections 6 and 7 of the J.J. Act claiming that he was
- 16 -

juvenile on the date of the incident and hence, the criminal court had no jurisdiction to
entertain this case and the case be referred to Juvenile Justice Board and he be
granted bail.
4.

The appellant stated that his date of birth is 24.10.1990 and hence on the date of the
incident i.e. on 19.10.2008, he was aged only 17 years, 11 months and 25 days and was
thus a juvenile. In support of this contention, he produced the attested mark sheets of
the High School of the Board of Secondary Education, M.P. Bhopal as well as Eighth
standard Board Examination, wherein the date of birth was mentioned as 24.10.1990.

5.

Smt. Kiran, widow of victim raised objection to the application contending that no
evidence had been adduced to show that the entry made in the school Register was
correct and normally parents would not give correct date of birth on the admission
Register. Further, it was also stated that on physical appearance, as well, he was over
21 years of age and therefore the application be dismissed. Ram Mohan Saxena, father
of the appellant, was examined as PW1 and he deposed that the date of birth of his son
was 24.10.1990 and that he was born in the house of Balle Chaurasia in Maharajpur
and his son was admitted in Jyoti Higher Secondary School, wherein his date of birth
was also entered as 24.10.1990. Reference was also made to the transfer certificate
issued by the above mentioned school, since the appellant had studied from 8th
standard to 10th standard in another school, namely, Ceiling Home English School.
Further reliance was also placed on a horoscope, which was prepared by one Daya
Ram Pandey, marked as exhibit P-4. Savitri Saxena, the mother of the appellant was
also examined as PW-4, who also deposed that his son was born on 24.10.1990 and
had his education at Jyoti Higher Secondary School and the School Admission
Register kept in the school would also indicate his correct date of birth.

6.

The C.J.M. court thought of conducting an ossification test for determination of the age
of the appellant. Dr. R.P. Gupta, PW-2 conducted age identification of the body of the
appellant by X ray and opined that epiphysis of wrist, elbow, knee and iliac crest was
fused and he was of the opinion that the appellant was more than 20 years of age on
14.11.2008 and a report exhibited as P-5 was submitted to that extent. Dr. S.K. Sharma,
Medical Officer, District Hospital, Chhatarpur was examined as PW-3, who conducted
teeth test on the appellant for age identification. PW-3 had found that all 32 teeth were
there including all wisdom teeth, so the age of the appellant was more than 21 years.

7.

Dr. R.P. Gupta (PW-2) and Dr. S.K. Sharma (PW-3) were cross-examined by the
counsel for the appellant. Dr. R.P. Gupta (PW-2) stated that there might be margin of 3
years on both side while Dr. S.K. Sharma (PW-3) had denied the said statement and he
was of the opinion that wisdom teeth never erupt before the age of 17 years and might
be completed upto the age of 21 years. Dr. S.K. Sharma (PW-3) concluded since all
- 17 -

four wisdom teeth were found erupted, the appellant would be more than 21 years as on
14.11.2008.
8.

The C.J.M. Court felt that school records including mark sheets etc. cannot be relied
upon since teacher, who entered those details, was not examined and stated as
follows:
The date of birth mentioned in all the certificates is 24.10.1990. But it is significant that
such date of birth was recorded on the basis of the date of birth disclosed by the father
while getting him admitted in the school and neither the school admission form,
admission register in original were called for and even statement of no teacher, who got
admitted in the school, was got recorded in the court to determine on the basis of which
document actually the date of birth was got recorded as per the principle of law laid
down by the Honourable Supreme Court that the date of birth should be relied only
when it was recorded in the school on the basis of our authenticated documents and the
parents used to get the date of birth of the children recorded for some with variation for
some benefit and therefore same cannot be held as authenticated.

9.

The C.J.M., therefore, placing reliance on the report of the ossification test took the
view that the appellant was more than 18 years of age on the date of the incident.
Consequently, the application was dismissed vide order dated 1.01.2009. The
appellant aggrieved by the above mentioned order filed Criminal Appeal No. 15 of 2009
before the First Additional Sessions Judge, Chhatarpur.

10. The appellant again placed considerable reliance on school records including mark
sheets, transfer certificate etc. and submitted that the reliance placed on the
odontology report was wrongly appreciated to determine the age of the appellant. The
First Additional Sessions Judge stated as follows:
On the perusal of entire record it appears that the evidence of Ram Mohan Saxena who
is father of the appellant is not reliable as he says that the date of birth of appellant was
mentioned by him at the time of admission in school on the basis of Horoscope. It does
not bear the date when it was prepared. Papers of the Horoscope are crispy. The Pandit
who prepared the Horoscope was not examined for the reason best known to the
appellant. Therefore, the best evidence has been withheld by the appellant. Therefore,
adverse inference is to be drawn against the appellant. The Horoscope is
manufactured and fabricated and tailored for ulterior motive. (emphasis added)
11. The First Additional Sessions Judge though summoned the original register of Jyoti
English School, wanted to know on what basis the date of birth of the appellant was
entered in the School Admission Register. PW1, the father of the appellant had
therefore to rely upon the horoscope on which First Additional Sessions Judge has
- 18 -

commented as follows:
Horo-Scope was found to be recently made which does not mention the date when it
was prepared and it appears to be recently made and original register of the Jyoti
Higher Secondary School also does not mention that on what basis the date of birth of
the appellant was recorded first time in the school register. Therefore, the version of the
Ram Mohan Saxena that the date of birth of the appellant was recorded on the basis of
Horoscope is not supported by the register No.317 of the school. The Horoscope does
not bear the date when it was prepared. It appears to be recently made. The original
school admission form and the person who made the entries first time in the school has
not been examined in this Court. Therefore, no credence can be given to such entry in
the school. (emphasis added) 12. Learned First Additional Sessions Judge, on the
above reasoning, dismissed the appeal though the Principal of Jyoti Higher Secondary
School himself had appeared before the Court with the School Admission Register,
which showed the date of birth as 24.10.1990. Aggrieved by the same, the appellant
approached the High Court and the High Court confirmed the order passed by the
C.J.M. Court as well as the First Additional Sessions Judge stating that the appellant
had failed to establish his onus that his age was below 18 years on the date of the
incident.
13. We are unhappy in the manner in which the C.J.M. Court, First Additional Sessions
Judges Court and the High Court have dealt with the claim of juvenility. Courts below, in
our view, have not properly understood the scope of the Act particularly, meaning and
content of Section 7A of the J.J. Act read with Rule 12 of the 2007 Rules Before
examining the scope and object of the above mentioned provisions, it will be useful to
refer some of the decided cases wherein the above mentioned provisions came up for
consideration, though on some other context.
14. In Arnit Das v. State of Bihar, [(2000) 5 SCC 488], this Court held that while dealing with
the question of determination of the age of the accused for the purpose of finding out,
whether he is a juvenile or not, hyper technical approach should not be adopted while
appreciating the evidence adduced on behalf of the accused in support of the plea that
he is a juvenile and if two views are possible on the same evidence, the court should
lean in favour of holding the accused to be juvenile in borderline cases. In Arnit Das
case, this Court has taken the view that the date of production before the Juvenile Court
was the date relevant in deciding whether the appellant was juvenile or not for the
purpose of trial. The law laid down in Arnit Das to that extent was held to be not good
law, in Pratap Singh v. State of Jharkhand [(2005) 3 SCC 551], wherein a five Judge
Bench of this Court decided the scope of sections 32 and 2(h), 3, 26, 18 of the Juvenile
Justice Act, 1986 and took the view that it was the date of the commission of the offence
- 19 -

and not the date when the offender was produced before the competent court was
relevant date for determining the juvenility. 15.
15. In Pratap Singh case, this Court held that section 20 of the Act would apply only in cases
in which accused was below 18 years of age on 01.04.2001 i.e. the date of which the
2000 Act came into force, but it would have no application in case the accused had
attained the age of 18 years on date of coming into force of the 2000 Act. Possibly to get
over the rigor of Pratap Singh, a number of amendments were introduced in 2000 Act
w.e.f 28.02.2006 by Act 33 of 2006, the scope of which came up for consideration in
Hari Ram v. State of Rajasthan and Another [(2009) 13 SCC 211]. In Hari Ram, this
court took the view that the Constitution Bench judgment in Pratap Singh case was no
longer elevant since it was rendered under the unamended Act. In Hari Ram while
examining the scope of Section 7A of the Act, this Court held that the claim of juvenility
can be raised before any court at any stage and such claim was required to be
determined in terms of the provisions contained in the 2000 Act and the Rules framed
thereunder, even if the juvenile had ceased to be so on or before the date of
commencement of the Act. It was held that a juvenile, who had not completed 18 years
of age on the date of commission of the offence, was also entitled to the benefits of
Juvenile Justice Act, 2000 as the provisions of section 2(k) had always been in
existence even during the operation of the 1986 Act.
16. Further, it was also held that on a conjoint reading of sections 2(k), 2(l), 7A, 20 and 49
r/w Rules 12 and 98 places beyond all doubt that all persons who were below the age of
18 years on the date of commission of the offence even prior to 1.4.2001 would be
treated as juveniles even if the claim of juvenility was raised after they had attained the
age of 18 years on or before the date of commencement of the Act and were undergoing
sentence upon being convicted. With regard to the determination of age, this Court held
that the determination of age has to be in the manner prescribed in Rule 12 of the 2007
Rules and opined that the determination of age is an important responsibility cast upon
the Juvenile Justice Boards.
17. The scope of Section 7A of the Act and Rule 12 of the 2007 Rules again came up for
consideration before this Court in Dharambir v. State (NCT of Delhi) and Another
[(2010) 5 SCC 344]. That was a case where the appellant was convicted for offences
under section 302/34 and 307/34 IPC for ommitting murder of one of his close relatives
and for attempting to murder his brother. The appellant was not a juvenile within the
meaning of 1986 Act, when the offences were committed but had not completed 18
years of age on that date.
18. This court held from the language of the Explanation to Section 20 that in all pending
cases, which would include not only trial but even subsequent proceedings by way of
- 20 -

revision or appeal etc., the determination of juvenility of a juvenile has to be in terms of


clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April
2001, when the Act of 2000 came into force, and the provisions of the Act would have
applied as if the said provision had been in full force for all purposes and for all material
times when the alleged offence was committed. This Court held clause (l) of Section 2
of the Act 2000 provides that juvenile in conflict with law means a juvenile who is alleged
to have committed an offence and has not completed eighteenth year of age as on the
date of the commission of such offence. Section 20 also enables the Court to consider
and determine the juvenility of a person even after conviction by the regular court and
also empowers the Court, while maintaining the conviction to set aside the sentence
imposed and forward the case to the J.J. Board concerned for passing sentence in
accordance with the provisions of the 2000 Act.
19. This Court in Mohan Mali and Another v. State of Madhya Pradesh [(2010) 6 SCC 669]
has again considered the scope of Section 7A of the Act. That was a case where plea of
juvenility was raised before this court by the convict undergoing sentence. The
appellant therein was convicted under sections 302/34, 326/34 and 324/34 IPC and
was sentenced to life imprisonment and had already undergone 9 years of
imprisonment. In that case a copy of the birth certificate issued by the Chief Registrar
(Birth and Death) Municipal Corporation, Dhar u/s 12 of the Birth and Death
Registration Act 1969 maintained by the Corporation was produced. This Court noticed
that as per that certificate the date of birth of the accused was 12.11.1976. After due
verification, it was confirmed by the State of Madhya Pradesh that he was a juvenile on
the date of commission of the offence and had already undergone more than the
maximum sentence provided under Section 15 of the 2000 Act by applying Rule 98 of
the 2007 Rules read with Section 15 and 64 of the 2000 Act. The accused was ordered
to be released forthwith.
20. In Jabar Singh v Dinesh and Another [(2010) 3 SCC 757], a two Judge Bench of this
Court while examining the scope of Section 7A of the Act and Rule 12 of the 2007 Rules
and Section 35 of the Indian Evidence Act took the view that the trial court had the
authority to make an enquiry and take necessary evidence to determine the age.
Holding that the High Court was not justified in exercise of its revisional jurisdiction to
upset the finding of the trial court, remitted the matter to the trial court or trial of the
accused in accordance with law treating him to be not a juvenile at the time of
commission of the alleged offence. The court noticed that the trial court had passed the
order rejecting the claim of juvenility of respondent No.1 therein on 14.02.2006, the
Rules, including Rule 12 laying down the procedure to be followed in determination of
the age of a juvenile in conflict with law, had not come into force. The court opined that
- 21 -

the trial court was not required to follow the procedure laid down in Section 7A of the Act
or Rule 12 of the Rules and therefore in the absence of any statutory provision laying
down the procedure to be followed in determining a claim of juvenility raised before it,
the Court had to decide the claim of juvenility on the materials or evidence brought on
record by the parties and section 35 of the Evidence Act.
21. The court further stated that the entry of date of birth of respondent No.1 in the
admission form, the school records and transfer certificates did not satisfy the condition
laid down in Section 35 of the Evidence Act in as much as the entry was not in any public
or official register and was not made either by a public servant in the discharge of his
official duty or by any person in performance of a duty specially enjoined by the law of
the country and therefore, the entry was not relevant under section 35 of the Evidence
Act for the purpose of determining the age of respondent no.1 at the time of commission
of the alleged offence. We have our own reservations on the view expressed by the
bench in Jabar Singhs case. (supra).
22. In Dayanand v. State of Haryana [(2011) 2 SCC 224]., this Court considered the scope
of sections 2(k), 2(l), 7 A 20 and 64 (as amended by Act 33 of 2006 w.e.f. 22.08.2006].
This Court dealt with a case where the appellant was aged 16 years 5 months and 19
days on the date of occurrence, the Court held that he was a juvenile and thus could not
be compelled to undergo the rigorous imprisonment as imposed by the trial court and
affirmed by High Court. This Court set aside the sentence and ordered that the
appellant be produced before the J.J. Board for passing appropriate sentence in
accordance with 2000 Act.
23. In Anil Agarwal and Another v. State of West Bengal [(2011) 2 SCALE 429], this Court
was examining the claim of juvenility made at a belated stage stating that the appellants
were minors at the time of the alleged offence and hence should not be tried along with
the adult co-accused. The trial court dismissed the appellants application as not
maintainable as it had been filed at a belated stage. The High Court, in revision, while
holding that the application had been made belatedly, granted liberty to appellants to
raise their plea of juvenility and to establish the same before the Sessions Judge at the
stage of the examination under section 313 Cr.P.C.
24. Reversing the finding recorded by the High Court, this Court took the view that Section
7A of the Act, as it now reads, gives right to any accused to raise the question of
juvenility at any point of time and if such an issue is raised, the Court is under an
obligation to make an inquiry and deal with that claim. The court held Section 7A has to
be read along with Rule 12 of the 2007 Rules. This Court, therefore, set aside the order
of the High Court and directed the trial court to first examine the question of juvenility
and in the event, the trial court comes to a finding that the appellants were minors at the
- 22 -

time of commission of the offence, they be produced before the J.J. Board for
considering their cases in accordance with the provisions of the 2000 Act.
25. We may in the light of the judgments referred to herein before and the principles laid
down therein while examining the scope of Section 7 A of the Act, Rule 12 of the 2007
Rules and Section 49 of the Act examine the scope and ambit of inquiry expected of a
court, the J.J. Board and the Committee while dealing with a claim of juvenility. 26. We
may, however, point out that none of the above mentioned judgments referred to earlier
had examined the scope, meaning and content of Section 7A, Rule 12 of the 2007
Rules and the nature of the inquiry contemplated in those provisions.
For easy reference, let us extract Section 7A of the Act and Rule 12 of the 2007 Rules:
Section 7A - Procedure to be followed when claim of juvenility is raised before any
court.
(1)

Whenever a claim of juvenility is raised before any court or a court is of the opinion that
an accused person was a juvenile on the date of commission of the offence, the court
shall make an inquiry, take such evidence as may be necessary(but not an affidavit) so
as to determine the age of such person, and shall record a finding whether the person is
a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of
juvenility may be raised before any court and it shall be recognised at any stage, even
after final disposal of the case, and such claim shall be determined in terms of the
provisions contained in this Act and the rules made there under, even if the juvenile has
ceased to be so on or before the date of commencement of this Act.

(2)

If the court finds a person to be a juvenile on the date of commission of the offence
under sub-section (1), it shall forward the juvenile to the Board for passing appropriate
order, and the sentence if any, passed by a court shall be deemed to have no effect.
Rule 12. Procedure to be followed in determination of Age.? (1) In every case
concerning a child or a juvenile in conflict with law, the court or the Board or as the case
may be the Committee referred to in rule 19 of these rules shall determine the age of
such juvenile or child or a juvenile in conflict with law within a period of thirty days from
the date of making of the application for that purpose. (2) The Court or the Board or as
the case may be the Committee shall decide the juvenility or otherwise of the juvenile or
the child or as the case may be the juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available, and send him to the observation
home or in jail.

(3)

In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining (a) (i) the matriculation or equivalent
- 23 -

certificates, if available; and in the absence hereof; (ii) the date of birth certificate from
the school (other than a play school) first attended; and in the absence whereof; (iii) the
birth certificate given by a corporation or a municipal authority or a panchayat; (b) and
only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which will declare the age of the juvenile
or child. In case exact assessment of the age cannot be done, the Court or the Board or,
as the case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year. and, while passing orders in such case
shall, after taking into consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause
(b) shall be the conclusive proof of the age as regards such child or the juvenile in
conflict with law.
(4)

If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass
an order stating the age and declaring the status of juvenility or otherwise, for the
purpose of the Act and these rules and a copy of the order shall be given to such
juvenile or the person concerned.

(5)

Save and except where, further inquiry or otherwise is required, inter alia, in terms of
section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.

(6)

The provisions contained in this rule shall also apply to those disposed off cases, where
the status of juvenility has not been determined in accordance with the provisions
contained in sub rule(3) and the Act, requiring dispensation of the sentence under the
Act for passing appropriate order in the interest of the juvenile in conflict with law.
(emphasis added)

27. Section 7A, obliges the court only to make an inquiry, not an investigation or a trial, an
inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal
Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting
a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the
Board only to make an inquiry and in what manner that inquiry has to be conducted is
provided in JJ Rules. Few of the expressions used in Section 7A and Rule 12 are of
considerable importance and a reference to them is necessary to understand the true
scope and content of those provisions. Section 7A has used the expression court shall
- 24 -

make an inquiry, take such evidence as may be necessary and but not an affidavit. The
Court or the Board can accept as evidence something more than an affidavit i.e. the
Court or the Board can accept documents, certificates etc. as evidence need not be oral
evidence.
28. Rule 12 which has to be read along with Section 7A has also used certain expressions
which are also be borne in mind. Rule 12(2) uses the expression prima facie and on the
basis of physical appearance or documents, if available. Rule 12(3) uses the
expression by seeking evidence by obtaining. These expressions in our view re
emphasize the fact that what is contemplated in Section 7A and Rule 12 is only an
inquiry. Further, the age determination inquiry has to be completed and age be
determined within thirty days from the date of making the application; which is also an
indication of the manner in which the inquiry has to be conducted and completed. The
word inquiry has not been defined under the J.J. Act, but Section 2(y) of the J.J. Act says
that all words and expressions used and not defined in the J.J. Act but defined in the
Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively
assigned to them in that Code.
29.

Let us now examine the meaning of the words inquiry, enquiry, investigation and trial as
we see in the Code of Criminal Procedure and their several meanings attributed to
those expressions. Inquiry as defined in Section 2(g), Cr.P.C. reads as follows:
Inquiry means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court. The word enquiry is not defined under the Code of Criminal
Procedure which is an act of asking for information and also consideration of some
evidence, may be documentary. Investigation as defined in section 2(h), Cr.P.C. reads
as follows:
Investigation includes all the proceedings under this code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf. The expressions trial has not been defined in
the Code of Criminal Procedure but must be understood in the light of the expressions
inquiry or investigation as contained in sections 2(g) and 2(h) of the Code of Criminal
Procedure.

30. The expression trial has been generally understood as the examination by court of
issues of fact and law in a case for the purpose of rendering the judgment relating some
offences committed. We find in very many cases that the Court /the J.J. Board while
determining the claim of juvenility forget that what they are expected to do is not to
conduct an inquiry under Section 2(g) of the Code of Criminal Procedure, but an inquiry
under the J.J. Act, following the procedure laid under Rule 12 and not following the
- 25 -

procedure laid down under the Code.


31. The Code lays down the procedure to be followed in every investigation, inquiry or trial
for every offence, whether under the Indian Penal Code or under other Penal laws. The
Code makes provisions for not only investigation, inquiry into or trial for offences but
also inquiries into certain specific matters. The procedure laid down for inquiring into the
specific matters under the Code naturally cannot be applied in inquiring into other
matters like the claim of juvenility under Section 7A read with Rule 12 of the 2007 Rules.
In other words, the law regarding the procedure to be followed in such inquiry must be
found in the enactment conferring jurisdiction to hold inquiry.
32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry
is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot
import other procedures laid down in the Code of Criminal Procedure or any other
enactment while making an inquiry with regard to the juvenility of a person, when the
claim of juvenility is raised before the court exercising powers under section 7A of the
Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still
having the hangover of the procedure of trial or inquiry under the Code as if they are
trying an offence under the Penal laws forgetting the fact that the specific procedure has
been laid down in section 7A read with Rule 12.
33. We also remind all Courts/J.J. Board and the Committees functioning under the Act that
a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in
Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because
they have a kind of guardianship over minors who from their legal disability stand in
need of protection.
34. Age determination inquiry contemplated under section 7A of the Act r/w Rule 12 of the
2007 Rules enables the court to seek evidence and in that process, the court can obtain
the matriculation or equivalent certificates, if available. Only in the absence of any
matriculation or equivalent certificates, the court need obtain the date of birth certificate
from the school first attended other than a play school. Only in the absence of
matriculation or equivalent certificate or the date of birth certificate from the school first
attended, the court need obtain the birth certificate given by a corporation or a municipal
authority or a panchayat (not an affidavit but certificates or documents). The question of
obtaining medical opinion from a duly constituted Medical Board arises only if the above
mentioned documents are unavailable. In case exact assessment of the age cannot be
done, then the court, for reasons to be recorded, may, if considered necessary, give the
benefit to the child or juvenile by considering his or her age on lower side within the
margin of one year.
- 26 -

35. Once the court, following the above mentioned procedures, passes an order; that order
shall be the conclusive proof of the age as regards such child or juvenile in conflict with
law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be
conducted by the court or the Board after examining and obtaining the certificate or any
other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section
49 of the J.J. Act also draws a presumption of the age of the Juvenility on its
determination.
36. Age determination inquiry on templated under the JJ Act and Rules has nothing to do
with an enquiry under other legislations, like entry in service, retirement, promotion etc.
There may be situations where the entry made in the matriculation or equivalent
certificates, date of birth certificate from the school first attended and even the birth
certificate given by a Corporation or a Municipal Authority or a Panchayat may not be
correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not
expected to conduct such a roving enquiry and to go behind those certificates to
examine the correctness of those documents, kept during the normal course of
business. Only in cases where those documents or certificates are found to be
fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for
medical report for age determination.
37. We have come across several cases in which trial courts have examined a large
number of witnesses on either side including the conduct of ossification test and calling
for odontology report, even in cases, where matriculation or equivalent certificate, the
date of birth certificate from the school last or first attended, the birth certificate given by
a corporation or a municipal authority or a panchayat are made available. We have also
come across cases where even the courts in the large number of cases express doubts
over certificates produced and carry on detailed probe which is totally unwarranted.
38. We notice that none of the above mentioned principles have been followed by the
courts below in the instant case. The court examined the question of juvenility of the
appellant as if it was conducting a criminal trial or inquiry under the Code. Notice was
issued on the application filed by the juvenile and in response to that State as well as
the widow of the victim filed objection to the application. The father of the appellant was
cross examined as PW 1 and was permitted to produce several documents including
the mark sheet of class five marked as exhibit P-1, mark sheet of class eight marked as
exhibit P-2, mark sheet of Intermediate Education Board, MP, marked as exhibit P-3,
horoscope prepared by Daya Ram Pandey marked as exhibit P-4. Further, the mother
of the appellant was examined as PW 4, Transfer Certificate was produced on the side
of the appellant which was marked as exhibit P-6. Noticing that the parents of the
appellant were attempting to show a lesser age of the child so as to escape from the
- 27 -

criminal case, the Court took steps to conduct ossification test. Dr. R.P. Gupta was
examined as PW 2 who had submitted the report. Dr. S.K. Sharma was examined as
PW 3. Placing considerable reliance on the report submitted after conducting
ossification test, the application was dismissed by the trial court.
39. We find that the appellate court, of course, thought it necessary to summon the original
register of Jyoti English School where the appellant was first admitted and the same
was produced by the Principal of the School. We have called for the original record from
the Court and perused the same. On 4.09.2009, the Sessions Judge passed the
following order : 04.02.09. Court found it necessary to call for the Admission Register of
the appellant in Jyoti High Secondary School and ordered the production of the
Register of Admission, from the concerned school in ST. No. 29/09. Sd/- Judge On
09.02.2009, another order was passed as follows:
From Jyoti High Secondary School, the Principal of the school was present along with
the concerned admission register. He produced the copy of the admission register
before the court after proving its factum. Register was returned after the perusal. The
Counsel is directed that if he wants to produce any other evidence/documents, he may
do so. (emphasis added) Sd/- Judge On 11.02.09, after hearing the counsel on either
side, the Court passed the order:
The counsel for the state Shri Nayak, APG stated/conceded that in respect to
refute/rebuttal of the Admission Register the state do not wish to file further
Evidence/documents. (emphasis added) Sd/- Judge On 12.02.2009, after hearing
counsel on either side, the Court again passed the order: In presence of the advocates,
order pronounced in the open court that this Appeal is hereby Dismissed. Sd/-Judge
40.

We fail to see, after having summoned the admission register of the Higher Secondary
School where the appellant had first studied and after having perused the same
produced by the principal of school and having noticed the fact that the appellant was
born on 24.10.1990, what prompted the court not to accept that admission register
produced by the principal of the school. The date of birth of the appellant was
discernible from the school admission register. Entry made therein was not
controverted or countered by the counsel appearing for the State or the private party,
which is evident from the proceedings recorded on 11.02.2009 and which indicates that
they had conceded that there was nothing to refute or rebut the factum of date of birth
entered in the School Admission Register. We are of the view the above document
produced by the principal of the school conclusively shows that the date of birth was
24.10.1990 hence section 12(3)(a)(i)(ii) has been fully satisfied.

41. The Sessions Judge, however, has made a fishing inquiry to determine the basis on
- 28 -

which date of birth was entered in the school register, which prompted the father of the
appellant to produce a horoscope. The horoscope produced was rejected by the Court
stating that the same was fabricated and that the Pandit who had prepared the
horoscope was not examined. We fail to see what types of inquiries are being
conducted by the trial courts and the appellate courts, when the question regarding the
claim of juvenility is raised.
42. Legislature and the Rule making authority in their wisdom have in categorical terms
explained how to proceed with the age determination inquiry. Further, Rule 12 has also
fixed a time limit of thirty days to determine the age of the juvenility from the date of
making the application for the said purpose. Further, it is also evident from the Rule that
if the assessment of age could not be done, the benefit would go to the child or juvenile
considering his / her age on lower side within the margin of one year.
43.

The Court in Babloo Parsi v. State of Jharkhand and Another [(2008) 13 SCC 133] held,
in a case where the accused had failed to produce evidence/certificate in support of his
claim, medical evidence can be called for. The court held that the medical evidence as
to the age of a person, though a useful guiding factor is not conclusive and has to be
considered along with other cogent evidence.This court set aside the order of the High
Court and remitted the matter to the Chief Judicial Magistrate heading the Board to redetermine the age of the accused.

44. In Shah Nawaz v. State of Uttar Pradesh and Another [(2011) 13 SCC 751], the Court
while examining the scope of Rule 12, has reiterated that medical opinion from the
Medical Board should be sought only when matriculation certificate or equivalent
certificate or the date of birth certificate from the school first attended or any birth
certificate issued by a Corporation or a municipal authority or a panchayat or municipal
is not available. The court had held entry related to date of birth entered in the mark
sheet is a valid evidence for determining the age of the accused person so also the
school leaving certificate for determining the age of the appellant.
45. We are of the view that admission register in the school in which the candidate first
attended is a relevant piece of evidence of the date of birth. The reasoning that the
parents could have entered a wrong date of birth in the admission register hence not a
correct date of birth is equal to thinking that parents would do so in anticipation that child
would commit a crime in future and, in that situation, they could successfully raise a
claim of juvenility.
46. We are, therefore, of the view that the appellant has successfully established his
juvenility on the date of occurrence of the crime i.e. 19.10.2008 on which date he was
aged only 17 years 11 months 25 days. The appellant has already faced the criminal
- 29 -

trial in sessions case No. 28 of 2009 and the Court found him guilty along with two
others under section 302 IPC and has been awarded life imprisonment which is
pending in appeal, before the H'onble Court at Jabalpur as Crime Appeal No.1134 of
2009.
47. We notice that the accused is also involved in few other criminal cases as well. Since
we have found that the appellant was a juvenile on the date of the incident, in this case,
we are inclined to set aside the sentence awarded in sessions case No. 28/2009 by
Sessions Court and direct the High Court to place the records before J.J. Board for
awarding appropriate sentence in accordance with the provisions of Act, 2000, and if
the appellant has already undergone the maximum sentence of three years as
prescribed in the Act, needless to say he has to be let free, provided he is not in custody
in any other criminal case. We are informed that the appellant is involved in few other
criminal cases as well, those cases will proceed in accordance with law.
48. The appeal is allowed. Sentence awarded by the court below is accordingly set aside
and the case records be placed before the concerned J.J. Board for awarding
appropriate sentence. ..J.

(K.S. Radhakrishnan) ..J.


(Madan B. Lokur) New Delhi;
September 13, 2012

- 30 -

Patna High Court - Orders


CR. REVISION No.35 of 2009
CHANDAN KUMAR GANDHI @ GANNA
son of Sri Shashi Bhushan Poddar
Resident of Village- Chatti Road Miachak, P.S.- Town and District- Begusarai.
Through father Shashi Bhushan Poddar :-Petitioner.
Versus
1. STATE OF BIHAR
2. Subodh Kumar Singh, S/o- Sri Kamal Dhari Singh @ Bela Singh, resident of
Village- Ratanpur Ward No. 10, P.S.- Nagar,
District- Begusarai :-- Opposite Parties.
For the petitioner: Mr. Ajay Kumar Thakur, Advocate.
For Opposite Party No.2 : Mr. Rana Pratap Singh, Senior Advocate.
Mr. Radha Mohan Singh, Advocate.
18. 20/11/2009.
1.

Heard learned counsel for the petitioner- accused and the opposite party no.2.

2.

Petitioner-accused is assailing the order dated 10.12.2008 passed by the Additional


Sessions Judge, F.T.C.-IV, Begusarai in Sessions Trial No. 350 (S) of 2008, where
under the court below has held that there is controversy in regard to the date of birth of
the petitioner-accused which is evident from the matriculation and the School Leaving
Certificate filed on behalf of the accused and the prosecution, in the circumstances,
the report of the Medical Board becomes relevant material to be taken into
consideration for assessing the age of the accused and from the report of the Medical
Board it is evident that the petitioner was more than 18 years of age on the date of
occurrence i.e. 25.07.2004.

3.

Counsel for the petitioner-accused has assailed the aforesaid order with reference to
the provisions contained in Section 49 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as the "Act") read with Sub-Rule (5) of Rule
22 of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003
(hereinafter referred to as the "Bihar Rules" and Sub-Rule (3) of Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to
as the "Central Rules") and with reference to the aforesaid provisions it is submitted
that the court below while passing the impugned order erred in law in relying on the
report of the Medical Board ignoring the matriculation certificate as while conducting
the enquiry in terms of Section 49 of the Act, the Juvenile Justice Board (hereinafter
referred to as the "Board") and the court below in view of the provisions contained in
- 31 -

Sub-Rule (5) of Rule 22 of the Bihar Rules and Sub-Rule (3) of Rule 12 of the Central
Rules was obliged to rely on the date of birth entry in the matriculation or equivalent
certificate, if available. In absence thereof to obtain the date of birth certificate from the
school first attended and in absence of the matriculation, certificate from the school
first attended, birth certificate obtained from the Corporation/Municipality/Panchayat
should have been relied upon. Only in absence of the certificates aforementioned the
medical opinion can be sought from a duly constituted Medical Board and not
otherwise.
4.

Learned counsel with reference to the aforesaid provisions submitted that as the
matriculation certificate of the petitioner-accused dated 16th September, 2002,
Annexure-3 and School Leaving Certificate from the school first attended annexed at
page 34 of the brief was produced before the Board and the court below which
indicated the date of birth of the petitioner-accused as 03.08.1986, the court below
should have relied on the certificate and without referring to the report of the Medical
Board should have held the petitioner-accused to be a juvenile on the date of
occurrence i.e. 25.07.2004. In support of his aforementioned submission learned
counsel for the petitioner-accused has relied on the judgment of this Court in the case
of Sachin Kumar Gupta @ Sachin Kumar Vs. The State of Bihar & Anr., reported in
2008(2)PLJR 800, relevant portion whereof is reproduced here in below. :"In my view, once either of the three documents that is matriculation certificate or date
of birth certificate from the school first attended or the birth certificate granted by the
Corporation or Municipality are produced, the genuineness whereof is not in dispute
then the Court, the Board or the competent authority is left with no discretion in the
matter and it cannot even call for report of Medical Board. A certificate of the nature
mentioned above is genuine if it is issued by the authorities as designated in their
regular course, in terms of Section 35 of the Evidence Act.
There should not be fraudulent interpolations therein. They are held to be conclusive
proof of the fact mentioned therein. Conclusive proof is defined by Section 4 of the
Evidence Act to mean a fact which is declared to be conclusive proof of another. The
Court shall on proof of one fact record the other as proved and shall not allow evidence
to be given for the purpose of disapproving it. It is this last line which is important and is
also recognized by Section 49(2) of the Juvenile Act apart from the scheme of Rule
22(5) of the Bihar Rules and the specific declaration in this regard as contained in Rule
12(3) of the Central Rules. The effect is that on proof of the specified documents
having been issued by the respective authorities mentioned therein the date of birth as
mentioned in the documentary evidence is deemed to be proved conclusively and
cannot be rebutted."

5.

Counsel for the opposite parties while supporting the impugned order has submitted
that the date of birth recorded in the matriculation certificate as also in the School
- 32 -

Leaving Certificate from the school first attended by the petitioner-accused i.e.
03.08.1986 appears to have been recorded without there being any basis for such
entry which is evident from the School Leaving Certificate of the petitioner-accused
dated 03.02.1997 granted by the Principal, Govt. B.S.S. Collegiate Middle School,
Begusarai dated 03.02.1997, annexed at page 36 of the brief in which his date of birth
has been recorded as 04.01.1986 and petitioner attended Govt. B.S.S. Collegiate
Middle School, Begusarai after obtaining transfer certificate from the school first
attended with effect from 01.03.1996 and continued in Govt. B.S.S. Collegiate Middle
School, Begusarai until 31.12.1996 whereafter he was admitted in Ayodhya High
School, Begusarai in Class-IX on 20.05.1999 and passed the matriculation
examination in the year 2002, as is evident from his certificate dated 16.09.2002.
Learned counsel for the opposite parties further submitted that the court below having
noticed the different date of birth of the petitioner-accused recorded in the different
school certificate chose not to rely on the date of birth recorded in the
matriculation/school certificates and relying on the findings of the Medical Board
passed the impugned order. In this connection, learned counsel for the opposite party
no. 2 further pointed out that the presumption about the correctness of the entries
made in the matriculation certificate and the certificate from the school first attended
can always be rebutted with reference to the entries made in other school
certificate/registers. In the instant case as the date of birth entry recorded in the
matriculation certificate and the certificate issued from the school first attended by the
petitioner-accused were disputed on the basis of another School Leaving Certificate
of the petitioner- accused himself, the court below while determining the age of the
petitioner accused chose to rely on the opinion of the Medical Board. In this
connection, learned counsel further submitted that the date of birth entry as recorded
in the matriculation and School Leaving Certificate is not conclusive proof of the
factum of date of birth which can always be disputed with reference to better evidence
as presumption of its correctness is rebuttable. In this connection he further pointed
out that conclusive presumptions of law can only be drawn with regard to the matters
covered by Sections 41, 112 and 113 of the Evidence Act and not about the
correctness of the date of birth in the matriculation or other certificates. No sooner
dispute about the correctness of the date of birth of the petitioner-accused as recorded
in the matriculation and the School Leaving Certificate from the school first attended
by the petitioner-accused was raised with reference to the School Leaving Certificate
granted by the Principal, Govt. B.S.S. Collegiate Middle School, Begusarai dated
03.02.1997 it was within the discretion of the trial court to rely on either of the two
certificates or to rely on the report of the Medical Board and in the circumstances if the
court below has chosen to rely on the opinion of the Medical Board then this Court
should not interfere in the matter as the court below has in its discretion chosen to
- 33 -

ignore the school certificates containing contradictory date of births and has relied on
the report of the Medical Board.
6.

Learned counsel for the opposite party no. 2 further pointed out with reference to SubRule (5) of Rule 22 of the Bihar Rules that the entries in the birth certificate made by the
municipal authority, date of birth certificate from the school first attended or the
matriculation/equivalent certificate is not conclusive proof of the age recorded in the
certificates and appreciating such legal position the presumption of correctness of the
date of birth recorded in the matriculation and other certificates can always be
rebutted. The Board under order dated 30.11.2006 rightly rejected the date of birth
entry of the petitioner- accused in the matriculation certificate and the certificate from
the school first attended and referred to the Medical Board and concluded that he was
not a juvenile on the date of occurrence i.e. 25.07.2004.

7.

Learned counsel for opposite party no. 2 with reference to Sub-Rule (3) of Rule 12 of
the Central Rules submitted that there under the contents of the certificates referred to
in the said Sub-Rule has been made conclusive proof of the age of the juvenile and
thereby the discretion of the Board/court below under Section 49 of the Act to enquire
into the age of the person/juvenile produced before it by taking such evidence, as may
be necessary excluding the evidence on affidavit and record a finding about the age of
the person/juvenile produced is eroded and restricted as while ascertaining the age
the Board/court below should be allowed complete discretion to entertain such
evidence excluding the evidence on affidavit which may be necessary in its opinion for
the purpose of determining the age of the child/juvenile produced before it.

8.

In order to appreciate the submission of the parties it is necessary to peruse the three
school certificates relied on by the parties in the proceedings before the Board as also
the trial court. From the School Leaving Certificate granted by the Principal
Government Harijan Primary School, Mohanpur Jamalpur, kept at page-34 of the
brief, it is evident that the petitioner entered the Government Harijan Primary School,
Mohanpur Jamalpur on 04.03.1991 and continued in the said school until 30.12.1995
and his date of birth entered in the records of the said school is 03.08.1986. Having
obtained transfer certificate from Government Harijan Primary School, Mohanpur,
Jamalpur petitioner was admitted in Government B.S.S. Collegiate Middle School,
Begusarai on 01.03.1996 and continued there until 31.12.1996 and thereafter
obtained transfer certificate dated 03.02.1997 in which his date of birth as per the date
of birth recorded in the School Admission Register of Government B.S.S. Collegiate
Middle School, Begusarai is 04.01.1986. Having obtained transfer certificate from
Government B.S.S. Collegiate Middle School, Begusarai on 03.02.1997 he took
admission in Ayodhya High School, Begusarai on 20.05.1999 in Class IX, wherefrom
he passed matriculation examination in the year 2002 and on the basis of his date of
birth recorded in the Admission Register of Ayodhya High School, Begusarai as
- 34 -

03.08.1986 his date of birth in the matriculation certificate has been recorded as
03.08.1986. In the instant case the Board as also the trial court is not satisfied about
the date of birth entry in the matriculation certificate from the school first attended by
the petitioner-accused as the date of birth entry in the two certificates is disputed on
the basis of the School Leaving Certificate granted by the Principal Govt. B.S.S.
Collegiate Middle School, Begusarai where petitioner got himself admitted after
obtaining transfer certificate from the school first attended and after obtaining transfer
certificate from
9.

Having perused the aforesaid three certificates it is evident that petitioner-accused


has been recording inconsistent date of birth while entering different schools and the
Board as also the trial court having noticed such inconsistency has chosen to ignore
the two contradictory entries in regard to the date of birth of the petitioner-accused in
the certificates and placed reliance on the opinion of the Medical Board.

10.

Govt. B.S.S. Collegiate Middle School, Begusarai he got himself admitted in Ayodhya
High School from where he passed matriculation examination in the year 2002. Had
the three certificates been issued one after the other and relied upon for the purposes
of admission in the school, the date of birth of the petitioner-accused in the three
certificates would have been the same. The date of birth recorded in the matriculation
certificate as also in the Admission Register of Ayodhya High School from where
petitioner passed matriculation examination did not match the date of birth recorded in
the transfer certificate granted by the Govt. B.S.S. Collegiate Middle School,
Begusarai on the basis of which petitioner was admitted in the Ayodhya High School.
Appreciating inconsistency in recording the date of birth in the three certificates, the
Board and the trial court has chosen to ignore the certificates and has relied upon the
opinion of the Medical Board.

11.

Such approach on the part of the court below does not appear to be erroneous and
misplaced. 10. In this connection I may point out that Section 49 of the Act grants the
competent authority, namely, the Board/court below absolute discretion to call for such
evidence as may be necessary (excluding the evidence on affidavit) while conducting
the enquiry to determine the age of the juvenile/person produced before it and record
finding about the age of the person/juvenile produced before it considering the value
of the evidence so produced. Such absolute discretion vested in the competent
authority/Board/court below appears to have been eroded and restricted by providing
in Sub-Rule (3) of Rule 12 of the Central Rules that the date of birth entry in the
matriculation or equivalent certificate, if available, in absence thereof such entry in the
birth certificate from the school first attended and in absence thereof the date of birth
entry in the birth certificate given by the Corporation or municipal authority or
Panchayat shall be conclusive. It is thus evident that the discretion granted to the
competent authority/Board/court below to take such evidence as may be necessary in
- 35 -

its opinion to determine the age of the juvenile under Section 49 of the Act is eroded
and restricted as no sooner either of the aforesaid three certificates is produced the
date of birth entry recorded
12.

Therein is taken as conclusive proof of the age of the person produced and thereby the
discretion of the competent authority/Board/court below to take such evidence as may
be necessary and to consider its value and to record a finding on the basis of the value
of the evidence produced is eroded and restricted. It is thus obvious that the provisions
contained in Sub-Rule (3) of Rule 12 of the Central Rules override, erode/restrict and
denude the discretion of the competent authority under Section 49 of the Act to take
such evidence which may be necessary to determine the age of the juvenile, in the
circumstances, Sub Rule (3) of Rule 12 of the Central Rules, where under the date of
birth entry in either of the three certificates is made conclusive has to be read down so
as to make Sub-Rule (3) of Rule 12 of the Central Rules in tune with Section 49 of the
Act where under the age of the juvenile/person produced has to be determined with
reference to the evidence taken by the competent authority/Board/court below as per
its absolute discretion applying the norms of Section 4 of the Evidence Act which inter
alia provides that presumption about correctness of fact in issue can always be
rebutted by producing evidence in rebuttal. Conclusive presumption of law can only be
drawn with regard to the matters covered by Sections 41, 112 and 113 of the Evidence
Act and not with regard to questions

13.

Of fact. Any entry in public or other official book, register or record about the fact in
issue is a relevant fact as per Section 35 of the Evidence Act which can always be
rebutted by producing evidence in rebuttal. No sooner evidence in rebuttal disputing
the date of birth entry in the certificate is produced, it is within the discretion of the
Board/Court concerned to weigh the date of birth entry in the certificate with the
evidence produced in rebuttal disputing such entry and to place reliance on either of
the two certificates or to place reliance on the report of the Medical Board or any other
evidence produced in rebuttal.

14.

In view of my discussion above, the Board and the court below by ignoring the
contradictory date of birth entry in the certificates has rightly relied on the opinion of the
Medical Board and I do not see any merit in the revision application.

15.

The Revision Application is, accordingly, dismissed.

(V.N.Sinha,J.) A.F.R./P.K.P.

- 36 -

REPORTABLE

IN THE SUPREME COURT OF INDIA


CRIMINAL APPELATE JURISDICTION
CRIMINAL APPEAL NO . 651 OF 2012
(Arising out of S.L.P.(Crl.) No. 2411/2011)
OM PRAKASH ..Appellant
Versus
STATE OF RAJASTHAN & ANR. ..Respondents
JUDGEMENT
GYAN SUDHA MISRA , J .
1.

The Judgment and order dated 19.08.2010 passed by the High Court of Rajasthan at
Jodhpur in SBCRR No.597 of 2009 is under challenge in this appeal at the instance of
the appellant Om Prakash who is a hapless father of an innocent girl of 13 years
who was subjected to rape by the alleged accused Respondent No.2 Vijay Kumar @
Bhanwroo who has been allowed to avail the benefit of protection under Juvenile
Justice (Care and Protection of Children) Act 2000, although the courts below could
not record a finding that he, in fact, was a juvenile since he had not attained the age of
18 years on the date of incident. Hence this Special Leave Petition in which leave has
been granted after condoning the delay.

2.

Thus the questions inter alia which require consideration in this appeal are:(i)

whether the respondent/accused herein who is alleged to have committed an


offence of rape under Section 376 IPC and other allied sections along with a coaccused who already stands convicted for the offence under Section 376 IPC,
can be allowed to avail the benefit of protection to a juvenile in order to refer him
for trial to a juvenile court under the Juvenile Justice (Care and Protection of
Children) Act, 2000 (shortly referred to as the 'Juvenile Justice Act') although the
trial court and the High Court could not record a conclusive finding of fact that
the respondent accused was below the age of 18 years on the date of the
incident?

(ii)

whether the principle and benefit of 'benevolent legislation' relating to Juvenile


Justice Act could be applied in cases where two views regarding determination
- 37 -

of the age of child/accused was possible and the so-called child could not be
held to be a juvenile on the basis of evidence adduced?
(iii)

whether medical evidence and other attending circumstances would be of any


value and assistance while determining the age of a juvenile, if the academic
record certificates do not conclusively prove the age of the accused ?

(iv)

whether reliance should be placed on medical evidence if the certificates


relating to academic records is deliberately with held in order to conceal the age
of the accused and authenticity of the medical evidence regarding the age is
under challenge?

3.

Juvenile Justice Act was enacted with a laudable object of providing a separate forum
or a special court for holding trial of children/juvenile by the juvenile court as it was felt
that children become delinquent by force of circumstance and not by choice and
hence they need to be treated with care and sensitivity while dealing and trying cases
involving criminal offence. But when an accused is alleged to have committed a
heinous offence like rape and murder or any other grave offence when he ceased to be
a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act
under the ostensible plea of being a minor, should such an accused be allowed to be
tried by a juvenile court or should he be referred to a competent court of criminal
jurisdiction where the trial of other adult persons are held.

4.

The questions referred to herein before arise in this appeal under the facts and
circumstances emerging from the materials on record which disclose that the
appellant/complainant lodged a written report on 23.5.2007 at about 1.00 p.m. that his
daughter Sandhya aged about 13 1/2 years a student of class IX at Secondary School
Ghewada was called from the school by the accused Bhanwaru @ Vijay Kumar, son of
Joga Ram through her friend named Neetu on 23.2.2007 at about 1.00 p.m. in the
afternoon. Neetu told Sandhya that Bhanwroo was in the Bolero vehicle near the bus
stand. Sandhya left the school after taking permission from the school authorities and
when she reached near the bus stand she did not find the Bolero vehicle. She
therefore, made a telephonic call to Bhanwru who told her that he was standing at Tiwri
Road ahead of bus stand. She then noticed the Bolero vehicle on Tiwri Road, but she
did not find Neetu and when she enquired about Neetu, the accused Bhanwroo @
Vijay Kumar son of Joga Ram misguided her and told her that Neetu had got down to
go to the toilet after which she was made to sit in the vehicle which was forcibly driven
towards Tiwri and after a distance of 3-4 Km., a person named Subhash Bishnoi was
also made to sit in the vehicle. The vehicle was then taken to a lonely place off the road
where heinous physical assault of rape was committed on her by Bhanwroo @ Vijay
Kumar and Subhash Bishnoi. Since the victim girl/the petitioner's daughter resisted
- 38 -

and opposed, she was beaten as a result of which she sustained injuries on her thigh,
hand and back. She was then taken towards the village Chandaliya and she was again
subjected to rape. Bhanwru then received a phone call after which Bhanwru and
Subhash dropped her near the village Ghewada but threatened her that in case she
disclosed about this event to anyone, she will be killed. Sandhya, therefore, did not
mention about this incident to anyone in the school but on reaching home, she
disclosed it to her mother i.e. the appellant's/complainant's wife who in turn narrated it
to the appellant when he came back to village from Jodhpur on 24.2.2007. The
appellant could not take an immediate decision keeping in view the consequences of
the incident and called his brother Piyush from Jodhpur and then lodged a report with
the P.S. Osian on the basis of which a case was registered under Section 365, 323 and
376 IPC bearing C.R.No. 40/2007 dated 25.2.2007. In course of the investigation, the
accused Bhanwru @ Vijay Kumar was arrested and in the arrest memo his name was
mentioned as Vijay Kumar @ Bhanwar Lal son of Joga Ram and his age has been
mentioned as 19 years. After completion of the investigation, it was found that the
offences under Sections 363, 366, 323 and 376 (2) (g) IPC were made out against the
accused Vijay Kumar @ BhanwarLal, son of Joga Ram Jat aged 19 years, Subhash
son of Bagaram Bishnoi aged 20 years and against Smt. Mukesh Kanwar @ Mugli @
Neetu aged 27 years and hence charge sheet was submitted before the Judicial
Magistrate, Osian. Vijay Kumar @ Bhanwar Lal and Subhash were taken in judicial
custody.
5.

An application thereafter was moved on behalf of the accused Vijay Kumar @


Bhanwar Lal before the Judicial Magistrate, Osian stating that he was a juvenile
offender and, therefore, he may be sent to the Juvenile Court for trial.

6.

Arguments were heard on the aforesaid application by the concerned learned


magistrate on 29.3.2007 and the learned magistrate allowed the application by his
order dated 29.3.2007, although the Public Prosecutor contested this application
relying upon the police investigation and the medical report wherein the age of the
accused was recorded as 19 years. In the application, the stand taken on behalf of
Vijay Kumar was that in the school records, his date of birth was 30.6.1990.

7.

However, contents of this application clearly reveal that no dispute was raised in the
application on behalf of Vijay Kumar that the name of the accused Vijay Kumar was
only Vijay Kumar and not @ Bhanwar Lal. It was also not urged that the name of
accused Vijay Kumar has been wrongly mentioned in the police papers as Vijay
Kumar @ Bhanwar Lal nor in course of investigation it was ever stated that the case
was wrongly registered in the name of accused Vijay Kumar @ Bhanwar Lal. Without
even raising this dispute, the academic record of Vijay Kumar @ Bhanwar Lal was
- 39 -

produced whereas according to the complainant the factual position is that the name
of the accused was Bhanwar Lal which was recorded in the Government Secondary
School Jeloo Gagadi (Osian) when he entered the school on 18.12.1993 and again on
22.4.1996 his name was entered in the school register wherein his date of birth was
recorded as 12.12.1988.
8.

The complainant contested the age of the accused Vijay Kumar and it was submitted
that the accused Vijay Kumar had been admitted in the 2nd Standard in some private
school known as Hari Om Shikshan Sansthan in Jeloo Gagadi (Osian) with a changed
name as Vijay Kumar and there the date of birth was mentioned as 30.6.1990 which
was reflected in the subsequent academic records and on that basis the admission
card in the name of Vijay Kumar with date of birth as 30.6.1990 was mentioned in the
application for treating him as a juvenile.

9.

The case then came up before the Additional Sessions Judge (Fast Tract No.I)
Jodhpur as Sessions Case No. 151/2007 on 3.10.2007. Shri Joga Ram, the father of
the accused moved an application under Section 49 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 stating that the date of birth of his son was 30.6.1990
in his school administration record and, therefore, on the date of incident i.e.
23.02.2007, he was less than 18 years. In this application form dated 3.10.2007, Joga
Ram, father of the accused Vijay Kumar had himself stated at three places i.e. title,
para in the beginning and in the first part describing the name of his son (accused) as
Vijay Kumar @ Bhanwar Lal stating that his son was born on 30.6.1990 at his house
and he was first admitted in the school named Hari Om Shikshan Sansthan, Jeloo
Gagadi, Osian on 1.9.1997 in 2nd standard and his son studied in this school from
1.9.1997 to 15.7.2007 from 2nd standard and the transfer certificate dated 4.7.2007
was enclosed. The said application form had been signed by Joga Ram as father of
the accused Vijay Kumar on which the signature of the headmaster along with the seal
was also there. In transfer certificate the date of birth of the accused was also stated
along with some other facts in order to assert that Vijay Kumar was less than 18 years
of age on the date of the incident. But he had nowhere stated that he had another son
named Bhanwru who had died in 1995 and whose date of birth was 12.12.1988. He
attempted to establish that the accused Vijay Kumar is the younger son of Joga Ram
and the elder son Bhanwru had died in the year 1995 and it was he whose date of birth
was 1988. He thus asserted that Vijay Kumar in fact was born in the year 1990 and his
name was not Bhanwru but only Vijay Kumar. This part of the story was set up by the
father of the accused Joga Ram at a later stage when the evidence was adduced.

10.

The application filed on behalf of the accused Vijay Kumar was contested by the
complainant and both the parties led evidence in support of their respective plea. The
- 40 -

specific case of the complainant was that Bhanwru Lal and Vijay Kumar in fact are one
and the same person and Joga Ram has cooked up a story that he had another son
named Bhanwar Lal whose date of birth was 12.12.1988 and who later expired in
1995. The complainant stated that as per the version of the father of the accused if the
deceased's son Bhanwar Lal continued in the school up to 24.2.1996, the same was
impossible as he is stated to have expired in 1995 itself. According to the complainant
Vijay Kumar and Bhanwar Lal are the names of the same person who committed the
offence of rape in the year 2007 and the defence taken by the accused was a
concocted story merely to take undue advantage of the Juvenile Justice Act.
11.

After taking into consideration the oral and documentary evidence, the Sessions Court
categorically concluded that in this case no definite clear and conclusive view is
possible keeping in view the evidence which has come on record with regard to the
age of the accused and both the views are clearly established and, therefore, the view
which is in favour of the accused is taken and the accused is held to be a juvenile. The
accused Vijay Kumar was accordingly declared to be a juvenile and was directed to be
sent to the Juvenile Justice Board for trial. This order was passed by the Additional
Sessions Judge (Fast Tract o.1) Jodhpur on 16.5.2009 in Sessions Case
No.151/2007.

12.

The complainant-appellant thereafter assailed the order of the Additional Sessions


Judge holding the respondent Vijay Kumar as a juvenile by filing a revision petition
before the High Court. The learned Judge hearing the revision observed that a lot of
contradictory evidence with regard to the age and identity of Vijay Kumar @ Bhanwru
has emerged and a lot of confusion has been created with regard to the date of birth of
accused Vijay Kumar @ Bhanwroo. But the learned single Judge was pleased to hold
that the Additional Sessions Judge had appreciated the evidence in the right
perspective and he is not found to have erred in declaring respondent No.2 Vijay
Kumar @ Bhanwru to be a juvenile offender. He has, therefore, rightly been referred to
the Juvenile Justice Board for trial which warrants no interference. The learned single
Judge consequently dismissed the revision petition against which the complainant
filed this special leave petition (Crl.) No. 2411/2011 which after grant of leave has
given rise to this appeal.

13.

Assailing the orders of the courts below, learned counsel for the appellant has
essentially advanced twofold submissions in course of the hearing. He had initially
submitted that Vijay Kumar alias Bhanwar Lal, son of Joga Ram is the same person
and Vijay Kumar is the changed name of Bhanwar Lal whose correct date of birth is
12.12.1988 and not 30.6.1990 as stated by Joga Ram, father of the accused. Hence,
Vijay Kumar @ Bhanwar Lal was not a juvenile on the date of commission of the
- 41 -

offence.
14.

In order to substantiate this plea, learned counsel for the appellant submitted that in
the application which was moved by Joga Ram, father of the accused, before the
Additional Sessions Judge under Section 49 of the Juvenile Justice Act, he has
nowhere mentioned that he had two sons named Vijay Kumar and Bhanwar Lal and
that Bhanwar Lal had died in 1995 whose date of birth was 12.12.1988 and his other
son Vijay Kumar's date of birth was 30.6.1990. In fact, he himself had mentioned his
son's name as Vijay Kumar @ Bhanwru at more than one place in the application and
later has planted a story that he had two sonce viz., Bhanwar Lal and Vijay Kumar, and
Bhanwar Lal whose date of birth was 12.12.1988 had already died in the year 1995.

15.

Learned counsel for the appellant further contended that the benefit of the principle of
benevolent legislation conferred on the Juvenile Justice Act, cannot be applied in the
present case as the courts below specially the court of fact which is the Additional
Sessions Judge (Fast Track No.1) Jodhpur did not record a categorical finding with
regard to the date of birth of the respondent /accused and the aforesaid principle can
be applied only to a case where the accused is clearly held to be a juvenile so as to be
sent for trial by the juvenile court or to claim any other benefit by the alleged juvenile
accused. Counsel for the Appellant has relied upon the evidence of NAW-3 -Medical
Jurist, who conducted ossification test of the accused and opined before the court that
the accused was 19 years of age and statement of NAW-1 Assistant Professor in
Radiology who opined before the court on 23.11.2007 that on the basis of the x-ray
films, age of the accused is above 18 years and below 20 years.

16.

Learned counsel for the accused-respondent on his part contended that medical
opinion could be sought only when matriculation or equivalent certificate or date of
birth certificate from the school was not available and since in the present case the
admission certificate of the accused from the school record is available which states
the date of birth to be 30.6.1990, the school certificate ought to be allowed to prevail
upon the medical opinion.

17.

We are unable to appreciate and accept the aforesaid contention of learned counsel
for the respondent since the age of the accused could not be proved merely on the
basis of the school record as the courts below in spite of its scrutiny could not record a
finding of fact that the accused, in fact, was a minor on the date of the incident. Hence,
in a situation when the school record itself is not free from ambiguity and conclusively
prove the minority of the accused, medical opinion cannot be allowed to be
overlooked or treated to be of no consequence. In this context the statement of NAW-3
Dr. Jagdish Jugtawat, the medical jurist who conducted the ossification test of the
accused and opined before the court that the accused was 19 years of age is of
- 42 -

significance since it specifically states that the accused was not a juvenile on the date
of commission of the offence. The statement of NAW-1 Dr. C.R. Agarwal, Asstt.
Professor in Radiology also cannot be overlooked since he opined that on the basis of
x-ray films, the age of the accused is above 18 years and below 20 years. Thus, in a
circumstance where the trial court itself could not arrive at a conclusive finding
regarding the age of the accused, the opinion of the medical experts based on xray
and ossification test will have to be given precedence over the shaky evidence based
on school records and a plea of circumstantial inference based on a story set up by the
father of the accused which prima facie is a cock and bull story.
18.

It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile
accused that he was a minor below the age of 18 years on the date of the incident and
the documentary evidence at least prima facie proves the same, he would be entitled
for this special protection under the Juvenile Justice Act. But when an accused
commits a grave and heinous offence and thereafter ttempts to take statutory shelter
under the guise of being a minor, a casual or cavalier approach while recording as to
whether an accused is a juvenile or not cannot be permitted as the courts are enjoined
upon to perform their duties with the object of protecting the confidence of common
man in the institution entrusted with the administration of justice. Hence, while the
courts must be sensitive in dealing with the juvenile who is involved in cases of serious
nature like sexual molestation, rape, gang rape, murder and host of other offences,
the accused cannot be allowed to abuse the statutory protection by attempting to
prove himself as a minor when the documentary evidence to prove his minority gives
rise to a reasonable doubt about his assertion of minority. Under such circumstance,
the medical evidence based on scientific investigation will have to be given due weight
and precedence over the evidence based on school administration records which give
rise to hypothesis and speculation about the age of the accused. The matter however
would stand on a different footing if the academic certificates ad school records are
alleged to have been with held deliberately with ulterior motive and authenticity of the
medical evidence is under challenge by the prosecution.

19.

In the instant matter, the accused Vijay Kumar is alleged to have committed a crime
which repels against moral conscience as he chose a girl of 13 and a half years to
satisfy his lust by hatching a plot with the assistance of his accomplice Subhash who
already stands convicted and thereafter the accused has attempted to seek protection
under the plea that he committed such an act due to his innocence without
understanding its implication in which his father Joga Ram is clearly assisting by
attempting to rope in a story that he was a minor on the date of the incident which is
not based on conclusive evidence worthy of credence but is based on a confused
- 43 -

story as also shaky and fragile nature of evidence which hardly inspires confidence. It
is hard to ignore that when the Additional Sessions Judge in spite of meticulous
scrutiny of oral and documentary evidence could not arrive at a conclusive finding that
he was clearly a juvenile below the age of 18 years on the date of incident, then by
what logic and reasoning he should get the benefit of the theory of benevolent
legislation on the foothold of Juvenile Justice Act is difficult to comprehend as it clearly
results in erroneous application of this principle and thus we find sufficient force in the
contention of learned counsel for the appellant that the benefit of the principle of
benevolent legislation can be made applicable in favour of only those delinquents who
undoubtedly have been held to be a juvenile which leaves no scope for speculation
about the age of the alleged accused.
20.

We therefore cannot overlook that the trial court as well as the High Court while
passing the impugned order could not arrive at any finding at all as to whether the
accused was a major or minor on the date of the incident and yet gave the benefit of the
principle of benevolent legislation to an accused whose plea of minority that he was
below the age of 18 years itself was in doubt. In such situation, the scales of justice is
required to be put on an even keel by insisting for a reliable and cogent proof in support
of the plea of juvenility specially when the victim was also a minor.

21.

The benefit of the principle of benevolent legislation attached to Juvenile Justice Act
would thus apply to only such cases wherein the accused is held to be a juvenile on the
basis of at least prima facie evidence regarding his minority as the benefit of the
possibilities of two views in regard to the age of the alleged accused who is involved in
grave and serious offence which he committed and gave effect to it in a well planned
manner reflecting his maturity of mind rather than innocence indicating that his plea of
juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be
allowed to come to his rescue. Hence if the plea of juvenility or the fact that he had not
attained the age of discretion so as to understand the consequence of his heinous act
is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely
on doubtful school admission record and in the event it is doubtful, the medical
evidence will have to be given due weighty while determining the age of the accused.

22.

Adverting to the facts of this case we have noticed that the trial court in spite of the
evidence led on behalf of the accused, was itself not satisfied that the accused was a
juvenile as none of the school records relied upon by the respondent-accused could
be held to be free from doubt so as to form a logical and legal basis for the purpose of
deciding the correct date of birth of the accused indicating that the accused was a
minor/juvenile on the date of the incident. This Court in several decisions including the
case of Ramdeo Chauhan @ Raj Nath vs. State of Assam, reported in (2001) 5 SCC
- 44 -

714 dealing with a similar circumstance had observed which adds weight and strength
to what we have stated which is quoted herein as follows :- it is clear that the petitioner
neither was a child nor near about the age of being a child within the meaning of the
Juvenile Justice Act or the Children Act. He is proved to be a major at the time of the
commission of the offence. No doubt, much less a reasonable doubt is created in the
mind of the court, for the accused entitling him to the benefit of a lesser punishment, it
is true that the accused tried to create a smoke screen with respect to his age. But such
effort appear to have been made only to hide his real age and not to create any doubt in
the mind of the court. The judicial system cannot be allowed to be taken to ransom by
having resort to imaginative and concocted grounds by taking advantage of loose
sentences appearing in the evidence of some of the witnesses particularly at the stage
of special leave petition. The law insists on finality of judgments and is more
concerned with the strengthening of the judicial system. The courts are enjoined upon
to perform their duties with the object of strengthening the confidence of the common
man in the institution entrusted with the administration of justice. Any effort which
weakens the system and shakes the faith of the common man in the justice
dispensation system has to be discouraged.
The above noted observations no doubt were recorded by the learned Judges of this
Court while considering the imposition of death sentence on the accused who claimed
to be a juvenile, nevertheless the views expressed therein clearly lends weight for
resolving an issue where the court is not in a position to clearly draw an inference
wherein an attempt is made by the accused or his guardian claiming benefit available
to a juvenile which may be an effort to extract sympathy and impress upon the Court
for a lenient treatment towards the so-called juvenile accused who, in fact was a major
on the date of incident.
23.

However, we reiterate that we may not be misunderstood so as to infer that even if an


accused is clearly below the age of 18 years on the date of commission of offence,
should not be granted protection or treatment available to a juvenile under the Juvenile
Justice Act if a dispute regarding his age had been raised but was finally resolved on
scrutiny of evidence. What is meant to be emphasized is that where the courts cannot
clearly infer in spite of available evidence on record that the accused is a juvenile or the
said plea appear to have been raised merely to create a mist or a smokescreen so as
to hide his real age in order to shield the accused on the plea of his minority, the
attempt cannot be allowed to succeed so as to subvert or dupe the cause of justice.
Drawing parallel between the plea of minority and the plea of alibi, it may be worthwhile
to state that it is not uncommon to come across criminal cases wherein an accused
makes an effort to take shelter under the plea of alibi which has to be raised at the first
- 45 -

instance but has to be subjected to strict proof of evidence by the court trying the
offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of
salutary principle that an innocent man may not have to suffer injustice by recording an
order of conviction in spite of his plea of alibi. Similarly, if the conduct of an accused or
the method and manner of commission of the offence indicates an evil and a well
planned design of the accused committing the offence which indicates more towards
the matured skill of an accused than that of an innocent child, then in the absence of
reliable documentary evidence in support of the age of the accused, medical evidence
indicating that the accused was a major cannot be allowed to be ignored taking shelter
of the principle of benevolent legislation like the Juvenile Justice Act, subverting the
course of justice as statutory protection of the Juvenile Justice Act is meant for minors
who are innocent law breakers and not accused of matured mind who uses the plea of
minority as a ploy or shield to protect himself from the sentence of the offence
committed by him. The benefit of benevolent legislation under the Juvenile Justice Act
obviously will offer protection to a genuine child accused/juvenile who does not put the
court into any dilemma as to whether he is a juvenile or not by adducing evidence in
support of his plea of minority but in absence of the same, reliance placed merely on
shaky evidence like the school admission register which is not proved or oral evidence
based on conjectures leading to further ambiguity, cannot be relied upon in preference
to the medical evidence for assessing the age of the accused.
24.

While considering the relevance and value of the medical evidence, the doctor's
estimation of age although is not a sturdy substance for proof as it is only an opinion,
such opinion based on scientific medical test like ossification and radiological
examination will have to be treated as a strong evidence having corroborative value
while determining the age of the alleged juvenile accused. In the case of Ramdeo
Chauhan Vs. State of Assam (supra), the learned judges have added an insight for
determination of this issue when it recorded as follows:Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only
his opinion. But such opinion of an expert cannot be sidelined in the realm where the
Court gropes in the dark to find out what would possibly have been the age of a citizen
for the purpose of affording him a constitutional protection. In the absence of all other
acceptable material , if such opinion points to a reasonable possibility regarding the
range o f his age , it has certainly to be considered.
The situation, however, would be different if the academic records are alleged to have
been with held deliberately to hide the age of the alleged juvenile and the authenticity
of the medical evidence is under challenge at the instance of the prosecution. In that
event, whether the medical evidence should be relied upon or not will obviously
- 46 -

depend on the value of the evidence led by the contesting parties.


25.

In view of the aforesaid discussion and analysis based on the prevailing facts and
circumstances of the case, we are of the view that the Respondent No.2 Vijay Kumar
and his father have failed to prove that Respondent No.2 was a minor at the time of
commission of offence and hence could not have been granted the benefit of the
Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be
allowed to be availed of by an accused who has taken the plea of juvenility merely as
an effort to hide his real age so as to create a doubt in the mind of the courts below who
thought it appropriate to grant him the benefit of a juvenile merely by adopting the
principle of benevolent legislation but missing its vital implication that although the
Juvenile Justice Act by itself is a piece of benevolent legislation, the protection under
the same cannot be made available to an accused who in fact is not a juvenile but
seeks shelter merely by using it as a protective umbrella or statutory shield. We are
under constraint to observe that this will have to be discouraged if the evidence and
other materials on record fail to prove that the accused was a juvenile at the time of
commission of the offence. Juvenile Justice Act which is certainly meant to treat a child
accused with care and sensitivity offering him a chance to reform and settle into the
mainstream of society, the same cannot be allowed to be used as a ploy to dupe the
course of justice while conducting trial and treatment of heinous offences.
This would clearly be treated as an effort to weaken the justice dispensation system
and hence cannot be encouraged.

26.

We therefore deem it just and appropriate to set aside the judgment and order passed
by the High Court as also the courts below and thus allow this appeal. Consequently,
the accused Vijay Kumar, S/o Joga Ram shall be sent for trial before the court of
competent jurisdiction wherein the trial is pending and not to the Juvenile Court as
pleaded by him. We order accordingly. ....J

(G.S. Singhvi)
J
(Gyan Sudha Misra)
New Delhi,
April 13, 2012
- 47 -

REPORTABLE

IN THE SUPREME COURT OF INDIA


CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. - OF 2009
(Arising out of SLP (Crl.) No.4601 of 2006)
Ram Suresh Singh ... Appellant
Versus
Prabhat Singh @ Chhotu Singh & Anr. ... Respondents
JUDGMENT
S.B. Sinha, J.
1.

Leave granted.

2.

Respondent no.1 is facing trial in Nava Nagar P.S. Case No.102 of 2003 on the charge
of committing murder of one Tribhuvan Singh. Appellant before us is the uncle of the
deceased. 3. Before the learned trial Judge, a plea was raised by him that he was a
juvenile. In support of the said plea, entries in the admission register/certificate in the
Government Secondary School, Navanagar, Buxar, in which he took admission on
22nd January 1996 and studied up to 31st December 1999, were produced. The said
certificate was issued on 23rd February 2000, the relevant portion whereof reads as
under :

1.

Name of Student

Prabhat Ranjan

2.

Father's/Guardian's Name

Shri Rajkishor Singh

3.

Permanent Address

Vill-Amir Pur, Post - Navanagar,


Dist.- Buxar (Bihar)

4.

Date of first admission in the school


XXX

7.

XXX

22.01.1996

XXX

Date of Birth in Admission Register (in number and Words)

10.02.1987

(Tenth February Nineteen Hundred Eighty Seven)


8.

Date of Leaving the School

9.

At the time of leaving School studying in which Class :


- 48 -

31.12.1999
8th"

4.

The said admission register/certificate, thus, shows that the date of birth of the accused
is 10.02.1987.

5.

A xerox copy of another certificate dated 12.11.2003 was also brought on record which
was issued by the Principal, Ram Lakhan Singh Yadav High School. The said
certificate also shows the date of birth of the first respondent to be 10.02.1987. It was
proved by a teacher of the said school, Shri Raj Kumar who examined himself as PW -2
as also by the father of the accused, namely, Raj Kishore Singh.

6.

The learned Magistrate, however, appointed a Medical Board. The Medical Board, in
its report dated 10th February 2005, inter alia, upon taking ossification test, estimated
his age to be within 20 to 22 years. By an order dated 03rd August 2005, the Principal
Magistrate, Juvenile Justice Board, Patna held that on the date of occurrence, i.e.,
10th September 2003, the age of the respondent no.1 was more than 20 years stating :
"Considering the evidence on record, there is only evidence which is the Report of the
Medical Board. The statement of the father of the accused and the teacher of the
school supported with the certificate which are not conclusive and sufficient under
rules of Juvenile Justice (Care & Protection) Rules, 2001. Accordingly, on the basis of
the report of the Medical Board and on physical appearance of the accused and
conclusion arrived at that this accused is not Juvenile at this stage nor at the time of
alleged commission of offence. Accordingly, this case record is remitted back to the
court concerned for disposal in accordance with law."

7.

Respondent no.1 filed a revision application there against before the High Court of
Patna which, by reason of the impugned order dated 17th May 2006, was allowed by a
learned Single Judge, holding : "Considering the submission made by the parties and
the decision relied on by them, find that the evidence which was produced by the
petitioner before the Juvenile Justice Court were sufficient for determination of his age.
The certificate granted by the Headmaster by Ram Lakhan Singh High School stating
the date of birth of the petitioner as 10.02.1987 was issued on 23.02.2000 and the date
of occurrence is 10.09.2003, much after issuance of certificate by the headmaster of
Ram Lakhan ingh High School where the date of birth of the petitioner has been
mentioned as 10.02.1987. In support of the age, the admission register of the school
was also produced wherein the petitioner's name has been mentioned in Sl.No.134.
There also the date of birth of the petitioner has been mentioned as 10.02.1987 and the
date of issuance of school leaving certificate is mentioned as 23.02.2000. There is no
reason for doubting or suspecting the genuineness of these two documents. In the
impugned order also no reason has been assigned for disbelieving the transfer
certificate and the photo copy of the certificate issued from Ram Lakhan Singh Yadav
High School, Nava Nagar. Rule 22(5) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, order of priority has been given to the certificate of birth issued by
the school in preference to the opinion of the duly constituted medical board. Only in
case of some dispute regarding genuineness of these documents, the Juvenile Justice
- 49 -

Board can seek opinion of duly constituted medical board for ascertaining the age of
an accused for declaring him Juvenile. Considering the fact that there is nothing on
record to disbelieve these documents the evidence of the father as well as teacher, the
Juvenile Justice Board should have decided in favour of the petitioner and declared
him Juvenile. The Apex Court also in similar matters have decided that the liberal view
should be taken by Juvenile Justice Board as well as courts while ascertaining the age
of accused for the purpose of declaring him Juvenile. Relying upon the certificate
produced before the Juvenile Justice Board and the evidence of father and teacher,
certainly the petitioner was a Juvenile on the date of occurrence.
Accordingly the order dated 03.08.2005 passed by the Juvenile Justice Board Patna
City in J.J.B.o.492 of 2005 is set aside and this application is allowed."
8.

Mr. Praneet Ranjan, learned counsel appearing on behalf of the appellant would
contend :-

(i)

Having regard to the provisions of Section 35 of the Indian Evidence Act, 1872 the High
Court committed a serious error in relying upon the entries made in the School register
in preference to the opinion of the Medical Board.

(ii)

An entry in regard to date of birth of a student recorded in admission register, being not
a public document, must be proved to have been recorded at the instance of a person
who was the guardian of the student. Strong reliance was placed on a decision of this
Court in case of Birad Mal Singhvi v. Anand Purohit [1988 (Supp.) SCC 604] and a
decision of the Calcutta High Court in the case of Raja Janaki Nath Roy v. Jyotish
Chandra Acharya Chowdhury [AIR 1941 Cal. 41].

(iii)

As the age of a person required to be determined by a person having regard to the


provisions contained in Section 35 of the Evidence Act both in civil as also in criminal
proceeding involve the ame legal principle, the High Court failed to consider the
depositions of the witnesses examined in the enquiry, namely, Raj Kumar and Raj
Kishore Singh, in their proper perspective.

9.

Mr. Shishir Pinaki, learned counsel appearing on behalf of respondent no.1, on the
other hand, urged :

(a)

as the admission register of the school in respect of the respondent no.1 showing his
date of birth has been proved, the impugned order is unassailable.

(b)

It was, however, submitted that in the event the medical report is taken into
consideration [which otherwise may not be necessary in view of Rule 22(5) of the
Juvenile Justice (Care & Protection of Children) Rules, 2001], the respondent's age
would be 18 years having regard to the fact that an error of two years or either side is
possible.

(c)

Bihar Education Code having a statutory status, as Article 242 whereof provides for
maintenance of a school register, presumption of correctness in respect thereof
- 50 -

should be raised.
10.

Determination of age of a person sometimes poses a difficult question. In the absence


of any statutory rule having been framed, no doubt, the provisions of Section 35 of the
Evidence Act were required to be strictly complied with. Section 6 of the Juvenile
Justice (Care & Protection of Children) Act, 2000 deals with the power of the Juvenile
Justice Board which is extracted below : "6. Powers of Juvenile Justice Board.-

(1)

Where a Board has been constituted for any district or a group of districts, such Board
shall, notwithstanding anything contained in any other law for the time being in force
but save as otherwise expressly provided in this Act, have power to deal exclusively
with all proceedings under this Act relating to juvenile in conflict with law.

(2)

The powers conferred on the Board by or under this Act may also be exercised by the
High Court and the Court of Session, when the proceeding comes before them in
appeal, revision or otherwise."

11.

Respondent no.1 claims himself to be a juvenile. An enquiry was directed to be


conducted. In the said enquiry, evidently, the original register maintained by the
Government Secondary School, Nava Nagar was produced. Date of birth of the said
respondent was stated to be 10.02.1987. Before us, a contention was raised as to
whether column no.5 thereof was filled up or not. An affidavit was filed to show that
column no.5 is statement on the declaration of the father. We would, therefore,
proceed on the said basis.

12.

Respondent no.1 was admitted in the Govt. Secondary School, Nava Nagar on 22nd
January 1996. He left the school on 31st December 1999. Certificate was issued on
23rd February 2000 so as to enable him to take admission in another school, namely,
Ram Lakhan Singh Yadav High School. We may not consider the certificate granted by
the Principal of the latter school as only a xerox copy thereof was filed inasmuch as the
original having been not produced, the same was inadmissible in evidence.

13.

Before the courts below, Shri Raj Kumar, a teacher of Ram Lakhan Singh Yadav
School examined himself. Although he was not present when the respondent no.1 was
admitted in the school, but he proved the contents of the admission register. It is,
therefore, not correct to contend that the contents of the admission register were not
proved. Raj Kishore Singh, father of the respondent no.1 also examined himself. He
also proved the date of birth of the respondent no.1.

14.

In terms of the provisions of Section 68 of the Juvenile Justice (Care & Protection of
Children) Act, 2000, the Central Government has framed Juvenile Justice (Care &
Protection of Children) Rules, 2001. Rule 22 of the said Rules provides for the
procedure to be followed in respect of determination of the age of a person. It indicates
that the opinion of the Medical Board is to be preferred only when a date of birth
certificate from the school first attended is not available.
- 51 -

15.

The condition laid down in Section 35 of the Evidence Act for proving an entry
pertaining to the age of a student in a school admission register is to be considered for
the purpose of determining the relevance thereof. But in this case, the said condition
must be held to have been satisfied.

16.

An entry in a school register may not be a public document and, thus, must be proved
in accordance with law, as has been held by this Court in the case of Birad Mal Singhvi
(supra), but, in this case the said entry has been proved.

17.

Even if we had to consider the medical report, it is now well known that an error of two
years in determining the age is possible. In the case of Jaya Mala v. Home Secretary,
Government of Jammu and Kashmir & Ors. [AIR 1982 SC 1297 = (1982) 2 SCC 202],
this Court held : "However, it is notorious and one can take judicial notice that the
margin of error in age ascertained by radiological examination is two years on either
side."

18.

There cannot furthermore be any doubt whatsoever that same standard is required to
be applied for the purpose of Section 35 of the Evidence Act both in civil as also
criminal proceedings, as was held by this Court in the case of Ravinder Singh Gorkhi v.
State of U.P. (2006) 5 SCC 584, stating : "38. The age of a person as recorded in the
school register or otherwise may be used for various purposes, namely, for obtaining
admission; for obtaining an appointment; for contesting election; registration of
marriage; obtaining a separate unit under ceiling laws; and even for the purpose of
litigating before a civil forum e.g. necessity of being represented in a court of law by a
guardian or where a suit is filed on the ground that the plaintiff being a minor he was not
appropriately represented therein or any transaction made on his behalf was void as
he was a minor. A court of law for the purpose of determining the age of a party to the lis,
having regard to the provisions of Section 35 of the Evidence Act will have to apply the
same standard. No different standard can be applied in case of an accused as in a
case of abduction or rape, or similar offence where the victim or the prosecutrix
although might have consented with the accused, if on the basis of the entries made in
the register maintained by the school, a judgment of conviction is recorded, the
accused would be deprived of his constitutional right under Article 21 of the
Constitution, as in that case the accused may unjustly be convicted." However, the
medical opinion rendered in this case corroborates the entry made in the register.
Admission register of the school having been proved in accordance with law, we do not
see any reason as to why the same should not be taken into consideration.

19.

We are not oblivious of the fact that it is difficult to lay down a law as to whether in a
case of this nature, the lower or the upper age or the average age should be taken into
consideration. Each case depends on its own facts. In the case of Jyoti Prakash Rai @
Jyoti Prakash v. State of Bihar 2008(3) SCALE 348 this Court, upon consideration of
large number of decisions, opined : "19. Appellant herein had produced a large
number of documents to prove his age purported to be as on the date of commission of
- 52 -

the crime. The genuineness of the school certificate and the horoscope had been
questioned. The school certificate produced by the appellant was found to be forged
and fabricated and as a matter of fact a criminal case was directed to be instituted
against the Head of the Institution.
20.

The court, therefore, had no other option but to determine the age on the basis of the
Medical Reports. Both the medical reports dated 24.04.2001 and 29.06.2001 opined the
age of the appellant between 18 and 19 years. In terms of first medical report, the age of
the appellant came to be 18 years 5 months 8 days and in terms of the second medical
report, it came to be between 18 and 19 years. The High Court opined that the appellant
on 1.04.2001 was definitely above 18 years of age and not below 18 years of age.

21.

The courts have considered this aspect of the matter on earlier occasions also. If, thus,
on the basis of several factors including the fact that school leaving certificate and the
horoscope produced by the appellant were found to be forged and fabricated and
having regard to two medical reports the courts below have found the age of the
appellant as on 1.04.2001 to be above 18 years, we are of the opinion that no
exception thereto can be taken." In this case, however, the documents produced by
the respondent no.1 were not found to be forged, fabricated or otherwise inadmissible
in law. If a document is proved to be genuine and satisfies the requirements of law, it
should be, subject to just exceptions, relied upon.

20.

However, in the case of Vimal Chadha v. Vikas Choudhary & Anr. 2008(8) SCALE 608,
this Court remitted the matter back for consideration of the age in terms of the rules
keeping in view of the provisions contained in Section 472 of the Code of Criminal
Procedure.

21.

Mr. Praneet Ranjan, learned counsel appearing for the appellant has relied upon
certain observations made by one of us in the case of Pratap Singh v. State of
Jharkhand & Anr. (2005) 3 SCC 551 to contend that model rules have no application,
but as the statutory rules have come into force in the procedure laid down therein
should be followed.

22.

As in this case, the date of birth entered into the school register has been proved, we are
of the opinion that there is no reason as to why the same should not be given effect to.

23.

We, therefore, find no legal infirmity in the order passed by the High Court. This appeal
is dismissed. .....................................J.

[S.B. Sinha] .....................................J.


[Cyriac Joseph] New Delhi.
May 5, 2009
- 53 -

Supreme Court of India


Ravinder Singh Gorkhi vs State Of U.P on 12 May, 2006
Author

S.B. Sinha

Bench

S.B. Sinha, P.P. Naolekar

CASE NO.

Appeal (crl.) 362 of 1999

PETITIONER

Ravinder Singh Gorkhi

RESPONDENT

State of U.P.

DATE OF JUDGMENT

12/05/2006

BENCH

S.B. Sinha & P.P. Naolekar

JUDGMENT :

J U D G M E N T S.B. SINHA, J :
Whether a school leaving certificate purported to have been issued by the
authorities of a primary school would attract the provision of Section 35 of the Indian
Evidence Act, 1872 is in question in this appeal which arises out of a judgment and order
dated 23.09.1997 passed by the High Court of Allahabad in Criminal Appeal No.3368 of
whereby and whereunder the appeal preferred by the appellant from an order dated
29.11.1979 passed by the Additional Sessions Judge, Bulandshahr in Sessions Trial No. 293
of 1979 was dismissed.
The appellant herein was said to have been born on 01.06.1963. He was involved in
a criminal case relating to the murder of one Chhattrapal which took place on 15.05.1979.
The allegation against the appellant was that he along with his father Surendra, Satish
Chandra, Narendra and Ramji Lal attacked him with a country-made pistol and knife. The
appellant is said to have been armed with a country-made pistol.
The said deceased while travelling on a cycle was fired at, whereupon he threw his
cycle on the road and rushed towards the shop of one Chhitariya and entered therein to save
his life. The accused persons chased him, entered into the said shop and killed him by firing
from the country- made pistols and knife. At the trial all the accused persons were convicted
of commission of the said offence and were sentenced to undergo rigorous imprisonment for
life. An appeal preferred by the accused persons including the appellant herein was
dismissed by the High Court by reason of the impugned judgment.
Before the trial judge in his statement under Section 313 of the Code of Criminal
Procedure a purported statement was made by the appellant herein that he was aged 16
years whereas the court assessed his age to be 18 years. He indisputably did not claim any
- 54 -

benefit of the provisions of the Uttar Pradesh Children Act, 1951 (for short, 'the Act'), which
was applicable in the case.
Before this Court for the first time, a contention was raised that as the appellant was
a minor on the date of commission of the offence, he was entitled to the benefit thereof in
terms of the provision of Section 2 (4) of the Act. Whereas special leave petition filed by the
other accused persons was dismissed, notice was directed to be issued in the special leave
petition filed by the appellant herein.
On the aforementioned question, parties exchanged their affidavits. A Division
Bench of this Court by an order dated 11.12.1998 through it appropriate to refer the question
in regard to his age to the Sessions Judge, Bulandshahr before whom the parties were
directed to appear on 04.01.1999 to lead both oral and documentary evidences. The learned
Sessions Judge was asked to return his findings to this Court.
The learned Sessions Judge, Bulandshahr pursuant to or in furtherance of the said
direction allowed the parties to adduce evidence. Relying upon or on the basis of the school
leaving certificate wherein the date of birth of the appellant was recorded to be 01.06.1963,
he was held to be a minor on the date of occurrence i.e. 15.05.1979. The appellant in his
statement recorded on 26.09.1979 disclosed his age to be 16 years; but the learned
Sessions Judge opined that he appeared to be 18 years of age.
The learned Sessions Judge, however, did not rely upon the other evidences
produced on behalf of the appellant, namely, horoscope and extract of 'Parivar Register'. He
further did not put any reliance on the testimony of the mother of the appellant.
Mr. P.S. Mishra, the learned Senior Counsel appearing on behalf of the appellant,
submitted that in view of the findings arrived at by the learned Sessions Judge, Bulandshahr,
the appellant was entitled to the benefit of the provisions of the Act and in that view of the
matter no sentence of life imprisonment could have been imposed upon him.
The Uttar Pradesh Children Act, 1951 was enacted to provide for the custody,
protection, treatment and rehabilitation of children and for the custody, trial, punishment of
youthful offenders, and for the amendment of the Reformatory Schools Act. 1897 in its
application to the State of Uttar Pradesh.
Sub-section (4) of Section 2 defines a "child" to mean a person under the age of
sixteen years. Section 63 of the Act, however, provides that where a child is charged with an
offence together with any other person not being a child then notwithstanding anything
contained in the said Act the child may be tried together with the adult in accordance with the
provisions of the Code of Criminal Procedure and nothing in the said Act shall require the
child to be tried by a Juvenile Court but the sentence, if any, awarded to the child shall be in
accordance with the provisions of the Act.
- 55 -

Ordinarily a Juvenile Court was required to be established in terms of the provisions


of the said Act as envisaged under Section 60 thereof. In this case, admittedly, apart from the
appellant herein all other accused persons were adults. A joint trial was held in terms of the
provisions of the Code of Criminal Procedure. At no point of time any exception thereto was
taken by or on behalf of the appellant. Before us no contention has been raised that the trial
was illegal.
The only question which has been raised and arises for consideration is as to
whether having regard to the provision of Section 27 of the Act, the sentence awarded
against the appellant herein was illegal.
For the purpose of determining the aforementioned question, we may notice a few
provisions of the said Act. Section 27 of the Act reads as under : "Sentence that may not be
passed on child.- Notwithstanding anything to the contrary contained in any law, no Court
shall sentence a child to death or transportation or imprisonment for any term or commit him
to prison in default of payment of fine :
Provided that a child who is twelve years of age or upwards may be committed to
prison when the Court certifies that he is of so unruly, or of so depraved a character that he is
not fit to be sent to an approved school and that none of the other methods in which the case
may legally be dealt with is suitable." section 30 of the Act, however, empowers the Court to
discharge youthful offender or to commit him to suitable custody. Section 31 provides for
payment of fine by the parents of the child. Section 32 provides for detention in case of
certain crimes by children, which reads as under :
"Detention in case of certain crimes by children.-(1) When a child is found to have
committed an offence of so serious a nature that the Court is of opinion that no punishment
which under the provisions of this Act it is authorized to inflict is sufficient, the Court shall
order the offender to be kept in safe custody in such place or manner as it thinks fit and shall
report the case for the orders of the State Government. (2) Notwithstanding the provisions of
Section 13 the State Government may order any such child to be detained in such place and
on such conditions as it thinks fit, and while so detained the child shall be deemed to be in
legal custody :
Provided that no period of detention so ordered shall exceed the maximum period of
imprisonment to which the child could have been sentenced for the offence committed." We
have noticed hereinbefore that the learned Sessions Judge, Bulandshahar in his report
dated 17.02.1999 did not rely upon any evidence other than the school leaving certificate. He
not only disbelieved the statement of the mother of the appellant but also did not place any
reliance upon the other documentary evidences adduced on behalf of the appellant, namely,
the horoscope and the 'Parivar Register'. No exception having been taken to by the parties
- 56 -

we accept the said part of the report. We are, thus, required only to consider as to whether the
School Leaving Certificate is reliable.
The purported school leaving certificate was sought to be proved by Chandra Pal
Singh, Head Master of the Primary Pathshala, Hajratpur. In his cross-examination, he
categorically stated that the date of birth of the appellant might have been disclosed by the
appellant at the time of admission. He did not have any personal knowledge with regard
thereto. No enquiry was made as regards the age of the appellant while he was admitted in
the institution. He accepted that it was quite possible that the age disclosed by the guardian
may be more or less.
The school leaving certificate was said to have been issued in the year 1998. A bare
perusal of the said certificate would show that the appellant was said to have been admitted
on 01.08.1967 and his name was struck off from the roll of the institution on 06.05.1972. The
said school leaving certificate was not issued in ordinary course of business of the school
There is nothing on record to show that the said date of birth was recorded in a register
maintained by the school in terms of the requirements of law as contained in Section 35 of the
Indian Evidence Act. No statement has further been made by the said Head Master that
either of the parents of the appellant who accompanied him to the school at the time of his
admission therein made any statement or submitted any proof in regard thereto. The entries
made in the school leaving certificate, evidently had been prepared for the purpose of the
case. All the necessary columns were filled up including the character of the appellant. It was
not the case of the said Head Master that before he had made entries in the register, age was
verified. If any register in regular course of business was maintained in the school; there was
no reason as to why the same had not been produced. In the counter affidavit filed on behalf
of the State, it has categorically been stated that the appellant had been a history sheeter; as
many as 34 cases for commission of heinous crimes have been filed against him, which
included cases under Sections 302, 392, 395 and 364 of the Indian Penal Code; a large
number of cases under the U.P. Goonda Act; and Section 25 and 27 of the Arms Act. One
case was filed against him under Section 302 as early as in 1973 and the last case which had
been filed against him was in 1996 under Section 395/364-A of the Indian Penal Code. It is,
therefore, unlikely that the appellant was not aware of his legal right.
The school leaving certificate was not an original one. It was merely a second copy.
Although it was said to have been issued in July 1972, the date of issuance of the said
certificate has not been mentioned. The copy was said to have been signed by the Head
Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge,
Bulandshahar on 27.01.1999. The Head Master has also not that the copy given by him was
a true copy of the original certificate. He did not produce the admission register.
There cannot, however, be any doubt whatsoever that the certificate was issued for
- 57 -

the purpose of the case. The father of the appellant was also an accused. He was described
as 'Surender Pal Singh'. The appellant had also been described as 'Ravinder Pal Singh S/o
Surender Pal Singh'. Before us, the father's name has been described as 'Surender Singh',
the appellant's name has been shown as 'Ravinder Singh Gorkhi'; whereas the name of the
student in the school leaving certificate has been shown as 'Ravinder Pal Singh'.
Determination of the date of birth of a person before a court of law, whether in a civil
proceeding or a criminal proceeding, would depend upon the facts and circumstances of
each case. Such a date of birth has to be determined on the basis of the materials on records.
It will be a matter of appreciation of evidence adduced by the parties. Different standards
having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil
case or a criminal case.
Mr. Mishra, however, would urge that while in a civil dispute a strict proof may be
necessary, in a criminal case and particularly in the case of a juvenile, the court may consider
any evidence which may be brought on records by the parties. We do not agree.
Section 35 of the Evidence Act would be attracted both in civil and criminal
proceedings. The Evidence Act does not make any distinction between a civil proceeding
and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the
Evidence Act, the register maintained in ordinary course of business by a public servant in
the discharge of his official duty, or by any other person in performance of a duty specially
enjoined by the law of the country in which, inter alia, such register is kept would be a relevant
fact. Section 35, thus, requires the following conditions to be fulfilled before a document is
held to be admissible there under : (i) it should be in the nature of the entry in any public or
official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either
by a public servant in the discharge of his official duty, or by any person in performance of a
duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably
must have an access thereto.
A question was raised as to whether the determination of the age of a child should be
made on the basis of the date on which the occurrence took place or when, he was produced
before the court. The said question came up for consideration in the context of the provisions
of the Juvenile Justice Act, 2000 before a Constitution Bench in Pratap Singh v. State of
Jharkahand and Anr [(2005) 3 SCC 551]. It was held that the date of commission of the
offence would be the relevant date. In terms of the aforementioned decision of the
Constitution Bench such determination is required to be made even if at the relevant time,
the juvenile crossed the age of eighteen years. In absence of any other statute operating in
the field, Section 35 will have application and the court, while determining such age would
depend upon the materials brought on records by the parties which would be admissible in
evidence in terms of Section 35 of the Act.
- 58 -

In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this Court held: "To
render a document admissible under Section 35, three conditions must be satisfied, firstly,
entry that is relied on must be one in a public or other official book, register or record;
secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be
made by a public servant in discharge of his official duty, or any other person in performance
of a duty specially enjoined by law.
An entry relating to date of birth made in the school register is relevant and
admissible under Section 35 of the Act but the entry regarding the age of a person in a school
register is of not much evidentiary value to prove the age of the person in the absence of the
material on which the age was recorded."
(emphasis supplied) In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], this
Court as regards determination of age of a candidate in terms of Section 36(2) of the
Representation of the People Act, 1951 observed :
"32. The age of a person in an election petition has to be determined not only on the
basis of the materials placed on record but also upon taking into consideration the
circumstances attending thereto. The initial burden to prove the allegations made in the
election petition although was upon the election petitioner but for proving the facts which
were within the special knowledge of the respondent, the burden was upon him in terms of
Section 106 of the Evidence Act. It is also trite that when both parties have adduced
evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli
Sugar Works (P) Ltd. and Cox and Kings (Agents) Ltd. v. Workmen. Furthermore, an
admission on the part of a party to the lis shall be binding on him and in any event a
presumption must be made that the same is taken to be established."
This Court therein followed, inter alia, Birad Mal Singhvi (supra) and several other
decisions. In Updesh Kumar and Others v. Prithvi Singh and Others [(2001) 2 SCC 524], this
Court having regard to the overwhelming evidence came to the opinion that the Respondent
No. 1 had attained the age of 21 years as on the date of his application for the allotment of the
retail outlet. In that case also reliance was placed on the matriculation certificate holding that
the correction of the date of the birth in the certificate was an official act and the must be
presumed to have been done in accordance with law.
We, however, notice that in Ramdeo Chauhan alias Raj Nath v. State of Assam
[(2001) 5 SCC 714], as regard applicability of the provision of Section 35 of the Indian
Evidence Act, 1872 vis-`-vis a school register, it was stated :
"19. It is not disputed that the register of admission of students relied upon by the
defence is not maintained under any statutory requirement. The author of the register has
also not been examined. The register is not paged (sic) at all. Column 12 of the register deals
- 59 -

with "age at the time of admission". Entries 1 to 45 mention the age of the students in terms of
years, months and days.
Entry 1 is dated 25-1-1988 whereas Entry 45 is dated 31-3-1989. Thereafter except
for Entry 45, the page is totally blank and fresh entries are made w.e.f. 5-1-1990, apparently
by one person up to Entry 32. All entries are dated 5-1-1990. The other entries made on
various dates appear to have been made by one person though in different inks. Entries for
the years 1990 are up to Entry 64 where after entries of 1991 are made again apparently by
the same person. Entry 36 relates to Rajnath Chauhan, son of Firato Chauhan. In all the
entries except Entry 32, after 5-1-1990 in column 12 instead of age some date is mentioned
which, according to the defence is the date of birth of the student concerned. In Entry 32 the
age of the student concerned has been recorded. In column 12 again in the entries with effect
from 9-1-1992, the age of the students are mentioned and not their dates of birth. The
manner in which the register has been maintained does not inspire confidence of the Court to
put any reliance on it. Learned defence counsel has also not referred to any provision of law
for accepting its authenticity in terms of Section 35 of the Evidence Act. The entries made in
such a register cannot be taken as a proof of age of the accused for any purpose." We are,
however, not oblivious of a decision of this Court in Bhola Bhagat v. State of Bihar [(1997) 8
SCC 720], wherein an obligation has been cast on the court that where such a plea is raised
having regard to the beneficial nature of the socially-oriented legislation, such a plea should
be examined with great care. We are, however, of the opinion that the same would not mean
that a person who is not entitled to the said benefit would bedealt with leniently only because
such a plea is raised. Each plea must be judged on its own merit. Each case has to be
considered on the basis of the materials brought on records.
The aforementioned decisions have been noticed by this Court in Zakarius Lakra
and Others v. Union of India and Another [(2005) 3 SCC 161], wherein a Bench of this Court
while entertaining an application under Article 32 of the Constitution of India opined that
although the same was not maintainable, but having regard to the decision of this Court in
Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388], the review petition should be allowed
to be converted into curative petition. [See also Raj Singh v. State of Haryana _ (2000) 6 SCC
759]. We are, however, not concerned in this case with such a situation. The deposition of the
Head Master of the school in this case did not satisfy the requirements of the law laid down in
the aforementioned decisions. Mr. Mishra, however, relied upon Umesh Chandra v. State of
Rajasthan [(1982) 2 SCC 202]. Therein a register maintained by a public school of repute
had been produced. This Court relied thereupon, opining that Section 35 cannot be read with
Sections 73 and 74 of the Evidence Act. If a public school maintains a register in ordinary
course of business, the same would be admissible in evidence.
We have not been shown as to whether any register was required to be maintained
- 60 -

under any statute. We have further not been shown as to whether any register was
maintained in the school at all. The original register has not been produced. The authenticity
of the said register, if produced, could have been looked into. No person had been examined
to prove as to who had made entries in the register. The school leaving certificate which was
not issued by a person who was in the school at the time when the appellant was admitted
therein, cannot be relied upon. Reliance has also been placed by Mr, Mishra on Bhoop Ram
v. State of U.P. [(1989) 3 SCC 1], wherein the appellant was treated to be a child within the
meaning of Section 2(4) of the Act; upon taking into consideration three factors : (i) that the
appellant had produced a school certificate and correctness whereof was not questioned; (ii)
the learned trial Judge thought it fit to award the lesser sentence of imprisonment for life
instead of capital punishment when he pronounced the judgment on 19.09.1977 on the
ground that the appellant was 17 years of age which gave credence to the appellant's case
that he was less than 16 years of age on 03.10.1975 when the offences were committed; and
(iii) although he was medically examined, for determination of age, the doctor based his
opinion only on an estimate and possibility of an error of creeping into the said opinion could
not be ruled out. This Court, therefore, took into consideration more than one factors in
accepting the plea of the appellant therein that he was minor on the date of commission of
the offence.
We have noticed hereinbefore that in this case the learned Sessions Judge had
discarded all other evidences which have been adduced on behalf of the appellant in support
of his contention that he was minor on the date of commission of the offence. Entry of a date
of birth in the school records is merely a piece of evidence. Having regard to the experience
of the court, in Birad Mal Singhvi (supra), it was opined that the same should be authentic in
nature. The age of a person as recorded in the school register or otherwise may be used for
various purposes; namely, for obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a separate unit under the ceiling laws;
and even for the purpose of litigating before a civil forum, e.g. necessity of being represented
in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a
minor he was not appropriately represented therein or any transaction made on his behalf
was void as he was minor. A court of law for the purpose of determining the age of a party to
the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the
same standard. No different standard can be applied in case of an accused as in a case of
abduction or rape, or similar offence where the victim or the prosecutrix although might have
consented with the accused, if on the basis of the entries made in the register maintained by
the school, a judgment of conviction is recorded, the accused would be deprived of his
constitutional right under Article 21 of the Constitution, as in that case the accused may
unjustly be convicted.
- 61 -

We are, therefore, of the opinion that that until the age of a person is required to be
determined in a manner laid down under a statute, different standard of proof should not be
adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court
may appreciate the evidence having regard to the facts and circumstance of the case. It
would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To
give the same benefit to a person who in fact is not a juvenile may cause injustice to the
victim. In this case, the appellant had never been serious in projecting his plea that he on the
date of commission of offence was a minor. He made such statement for the first time while
he was examined under Section 313 of the Code of Criminal Procedure. The family
background of the appellant is also a relevant fact. His father was a 'Pradhan' of the village.
He was found to be in possession of an unlicensed firearm. He was all along represented by
a lawyer. The court estimated his age to be 18 years. He was tried jointly with the other
accused. He had been treated alike with the other accused. On merit of the matter also the
appellant stands on the same footing as other accused.. The prosecution has proved its
case. In fact no such plea could be raised as the special leave petition of the persons similarly
situated was dismissed when the court issued notice having regard to the contention raised
by him for the first time that he was minor on the date of occurrence.
Having regard to the peculiar facts and circumstances of this case, we do not accept
the report of the learned Sessions Judge. For the reasons aforementioned, we do not find
any merit in this appeal which is dismissed accordingly.

- 62 -

Sanjeet Kumar Gupta @ Mantoo Kumar ... vs


The State Of Bihar & Anr on 7 December, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.467 of 2008
1.
2.
3.
4.
5.

SANJEET KUMAR GUPTA @ MANTOO KUMAR,son of Umesh Kumar Gupta


Manish Kumar,son of Deo Prasad
Sunil Kumar Verma @ Sunil Kumar,son of Parash Mahto @ Parash Prasad
Anokha Kumar @ Rajiv Kumar Ranjan, son of Tulsi Nandan Prasad
Sujeet Kumar @ Rakesh Raushan Priyadarshi,son of Schidanand Prasad.
All resident of village-Rahui, P.S.- Rahui, Dist.-Nalanda. .. Petitioners Versus
1. THE STATE OF BIHAR
2. Manoj Kumar,son of Ramjee lahkar,resident of village-Rahui,P.S.-Rahui,DistrictNalanda. .. .. Opp.Parties.
For the Petitioners: Mr.Anil Kumar No.6,Advocate For opp.party no.2 : Mr. Shanti
Kumar,Advocate
For the State : Mrs.Indu Bala Pandey,A.P.P.
03/ 07-12-2009 Heard learned counsel for the petitioners, learned counsel for
opposite party no.2 and the State.
This revision application has been filed against order dated 01-04-2008 passed by
the Ist Additional Sessions Judge, Nalanda at Biharsharif in S. Tr. No.653 of 2001, arising out
of Bihar (Sohsarai)P.S.Case No.73/1999, by which the petition filed by the petitioners to
declare them juvenile and send the case record to the Juvenile Justice Board has been
rejected. Gravity of the offence for which petitioners are alleged is not needed to be
mentioned as age of the petitioners was only in question before the trial court. It is pertinent to
mention here this much only that once the prayer was made to declare petitioners' juvenile
was refused but from this Court an option was given to the petitioners to renew their prayer
with fresh documents, if any, and in that context age is determined concluding the enquiry.
Incident is of 26-02-1999. At present the Juvenile Justice (Care and Protection of
Children) Act came into existence in the year 2000. Its amendment came into existence in
the year 2006 certainly after the incident but Section 20 is there to make provision for
applicability of the provisions of this act in pending cases also. Thereafter the Juvenile
Justice (Care & Protection of Children) Rules 2007 also framed and came into existence
making some guidelines and provisions for determination of age. Rule 12(3) provides some
guidelines which runs as follows: "12(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be conducted by the Court or the Board
or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the
matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date
of birth certificate from the school (other than a play school) first attended; and in the absence
- 63 -

whereof; (iii) the birth certificate given by a corporation or a Municipal authority or a


panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board
or, as the case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year, and, while passing order in such case shall, after
taking into consideration such evidence as may be available, or the medical opinion, as the
case may be, record a finding in respect of his age and either of the evidence specified in any
of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in conflict with law." There has been
controversy since long about principles or documents or evidence to be accepted for
determination of age that appears the reason for giving a definite guideline. So, it is for the
Court or the Board to follow the same and as mentioned in sub-rule (3) of Rule 12
matriculation or equivalent certificate if available is to be accepted and in absence of the
same only rest of the evidence or document can be taken into consideration. Admittedly, if
these documents (matriculation certificates) filed in the case are taken into consideration all
the petitioners are juvenile finding below 18 years. It is admitted fact that in matriculation
certificate of petitioner Sanjeet Kumar Gupta @ Mantoo Kumar his date of birth is 15.4.1985,
that of petitioner Manish Kumar is 05-02-1985, that of petitioner Sunil Kumar Verma @ Sunil
Kumar is 10.1984, that of petitioner Anokha Kumar @ Rajiv Kumar Ranjan is 28-02-1986
and that of petitioner Sujeet Kumar @ Rakesh Raushan Priyadarshi is 25-12 1981.Objection
of opposite party no.2 is in two folds - (i) that the juvenile Justice (Care and Protection of
Children) Act, 2000 is not applicable in pending cases and (ii) all the petitioners appeared in
matriculation examination only after the incident. It is admitted by the parties that the case is
at the stage of argument. Pendency of a case for argument is also pendency. Three of the
petitioners namely Manish Kumar, Sunil Kumar Verma and Sujeet Kumar @ Rakesh
Raushan Priyadarshi appeared in matriculation examination in the year 1999. Examination
as admitted by the parties is conducted in the month of March but registration of examinees
relates a year back. There is presumption of correctness of the official act also, if there was
otherwise some thing is to be proved by the parties raising the same. So, observation of the
court that the documents have been brought after the occurrence is not sustainable after
accepting matriculation certificates for assessment of the age on the relevant date that is on
26 02-1999 petitioner no.1's (Sanjeet Kumar Gupta) age comes to about 15 years, petitioner
no.2 (Manish Kumar) about 14 years, petitioner no.3 (Sunil Kumar Verma) about 15 years,
petitioner no.4 (Anokha Kumar @ Rajiv Kumar Ranjan) about 13 years and petitioner no.5
(Sujeet Kumar @ Rakesh Raushan Priyadarshi) about 17 years. All below 18 years entitled
for being declared as juvenile. Accordingly, all the petitioners are declared juvenile. In the
result, this revision application is allowed, order dated 01.4.2008 passed by the Ist Additional
Sessions Judge, Nalanda at Biharsharif in S.T.No.653 of 2001 is set aside.

( Mandhata Singh, J. )
- 64 -

PENDENCY & PENDING CASES

Pendency or pending cases means the state or time being pending,


undecided, or undetermined as of a lawsuit awaiting settlement.
The number of inquiries pending with the Juvenile Justice Boards
across the country as on 31st March, 2015 is an alarming figure of 1, 30,572.
More than twenty three thousand juvenile cases are pending in the various
Juvenile Justice Boards in the different districts of Bihar state. It is beyond
dispute that the credibility of these JJBs is almost shaken. Though the number
of initiatives taken in the past by the social welfare department and higher
judiciary to bring down the backlog but much progress could not be achieved to
clear the excess workload. Time has come for us to rethink about the solutions
to reduce the pendency of cases in juvenile justice boards. As we all aware that
Juvenile Justice Act, 2006 (amendment) which is the central law and made the
rights of the juvenile more explicit and assertive by providing for easy bail,
disposal and by ruling out stringent punishments.
The preamble of the Act undoubtedly articulate the intent of the
legislature by providing for proper care, protection and treatment by catering to
their developmental needs, and by adopting a child-friendly approach in the
adjudication and disposition of matters in the best interest of children and for
their ultimate rehabilitation.

- 65 -

Supreme Court of India


Hari Ram vs State Of Rajasthan & Anr on 5 May, 2009
Author : A Kabir
Bench: Altamas Kabir, Cyriac Joseph
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 907___OF 2009
(Arising out of S.L.P. (Crl.) No. 3336 of 2006)
Hari Ram ... Appellant
Vs.
State of Rajasthan & Anr. ... Respondents
JUDGMENT
ALTAMAS KABIR, J.
1.

Leave granted.

2.

This appeal raises certain questions which are fundamental to the understanding and
implementation of the objects for which the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as the `Juvenile Justice Act, 2000') was
enacted. The said law which was enacted to deal with offences committed by
juveniles, in a manner which was meant to be different from the law applicable to
adults, is yet to be fully appreciated by those who have been entrusted with the
responsibility of enforcing the same, possibly on account of their inability to adapt to a
system which, while having the trappings of the general criminal law, is, however,
different therefrom. The very scheme of the aforesaid Act is rehabilitatory in nature and
not adversarial which the courts are generally used to. The implementation of the said
law, therefore, requires a complete change in the mind-set of those who are vested
with the authority of enforcing the same, without which it will be almost impossible to
achieve the objects of the Juvenile Justice Act, 2000.

3.

The appellant, Hari Ram, was arrested along with several others on 30.11.1998, for
the alleged commission of offences under Sections 148, 302, 149, Section 325 read
with Section 149 and Section 323/149 Indian Penal Code. After the case was
committed for trial, the Additional Sessions Judge, Didwana, by his order dated 3rd
April, 2000, in Sessions Case No.54 of 1999 determined the age of the accused to be
below 16 years on the date of commission of the offence and after declaring him to be a
- 66 -

juvenile, directed that he be tried by the Juvenile Justice Board, Ajmer, Rajasthan.
4.

This appeal has been filed against the common order dated 7th December, 2005,
passed by the Jodhpur Bench of the Rajasthan High Court in Crl. Revision Petition
No.165 of 2000, filed by the Respondent No.2 herein and in Crl. Revision Petition
No.199 of 2005 filed by the appellant, also being aggrieved by the said common order.
While Crl. Revision No.199 filed by the appellant herein challenging the framing of
charges was dismissed, Crl. Revision No.165 filed by the State of Rajasthan was
allowed holding that the appellant was not a juvenile and the provisions of the Juvenile
Justice Act, 2000, were not, therefore, applicable to him.

5.

According to the appellant's father, the appellant's date of birth is Kartik Sudi 1, Samvat
Year 2039, which is equivalent to 17th October, 1982, whereas the offence was
alleged to have been committed on 30th October, 1998, which mathematically
indicates that at the time of commission of the offence, the appellant had completed 16
years and 13 days and was, therefore, excluded from the scope and operation of the
Juvenile Justice Act, 2000. Furthermore, the medical examination conducted in
respect of the appellant by a Medical Board indicated that his age at the relevant time
was between 16 and 17 years. After considering the various decisions of this Court
indicating the manner in which the age of a juvenile is to be determined, the High Court
observed that the inescapable conclusion which could be arrived at is that on the date
of the incident, the accused-appellant herein was above 16 years of age and was,
therefore, not governed by the provisions of the Juvenile Justice Act, 1986 (hereinafter
referred to as the `1986 Act').

6.

It is the said order of the High Court which has been impugned in this appeal.

7.

Appearing for the appellant, Mr. Sushil Kumar Jain, learned Advocate, submitted that
the High Court had acted in a highly technical manner in holding that the appellant was
not a juvenile and had in the process defeated the very object of the Juvenile Justice
Act, 2000, which is aimed at rehabilitating juvenile offenders in order to bring them
back to main-stream society and to give them an opportunity to rehabilitate
themselves as useful citizens of the future. In fact, the definition of "juvenile" in the
1986 Act was altered in the Juvenile Justice Act, 2000, to include persons who had not
completed 18 years of age. In other words, the age until which a male child in conflict
with law would be treated as a juvenile was raised from 16 years to 18 years.

8.

Mr. Jain submitted that the learned Single Judge of the High Court appears to have
misconstrued the decisions cited before him in the case of Santenu Mitra vs. State of
West Bengal, [(1998) 5 SCC 697] and Umesh Chandra vs. State of Rajasthan [(1982)
2 SCC 202], wherein the admissibility of certain records, including school records
- 67 -

maintained by private institutions, under Section 35 of the Indian Evidence Act, 1872
was under consideration. On the other hand, Mr. Jain referred to an earlier decision of
this Court in the case of Mohd. Ikram Hussain vs. State of U.P. & Ors. [1964 (5) SCR
86], where certain copies from the school registers were looked into and it was held
that the same amounted to evidence under the Indian Evidence Act as the entries in
the school registers were made long before the same were used by way of evidence.
This Court observed that the said entries were reliable as they had been made ante
litem motam. Mr. Jain also referred to certain observations made in Umesh Chandra's
case (supra) while interpreting Section 35 of the Indian Evidence Act to the effect that
there is no legal requirement that a public or other official book should be kept only by a
public officer and all that is required is that it should be regularly kept in discharge of
official duties.
9.

In support of his submissions, Mr. Jain lastly referred to the decision of this Court in the
case of Rajinder Chandra vs. State of Chhattisgarh & Anr. [(2002) 2 SCC 287], wherein
in paragraph 5 this Court observed as follows : "5. It is true that the age of the accused
is just on the border of sixteen years and on the date of the offence and his arrest he
was less than 16 years by a few months only.
In Arnit Das v. State of Bihar [(2005) 5 SCC 488] this Court has, on a review of judicial
opinion, held that while dealing with the question of determination of the age of the
accused for the purpose of finding out whether he is juvenile or not, a hypertechnical
approach should not be adopted while appreciating the evidence adduced on behalf of
the accused in support of the plea that he was a juvenile and if two views may be
possible on the said evidence, the court should lean in favour of holding the accused to
be a juvenile in borderline cases. The law, so laid down by this Court squarely applies
to the facts of the present case."

10.

Mr. Jain emphasised that this was also a similar case in which the record, according to
the date of birth indicated by his father and another witness - Narain Ram, shows that
he was just 13 days older than the cut-off limit of 16 years provided in Section 2(h) of
the 1986 Act.

11.

Mr. Jain submitted that since the incident is alleged to have taken place as far back as
on 30th October, 1998 and more than 10 years have elapsed since then and the
definition of "juvenile" had since been amended to include children who had not yet
attained the age of 18 years, the High Court should not have taken such a
hypertechnical view and should not have interfered with the order of the Additional
Sessions Judge, Didwana, declaring the appellant to be a juvenile.

12.

On behalf of the respondents it was submitted that even on the basis of the age as
- 68 -

disclosed by the appellant's father, the appellant was over 16 years of age on the date
of commission of the offence and could not, therefore, be treated to be a juvenile as
defined in the 1986 Act. It was submitted that the documents, which were produced in
support of the appellant's claim to be a minor, show him to have crossed the age of 16
years on the date of commission of the offence and the High Court had merely
corrected the error of the Additional Sessions Judge, Didwana, in calculation of the
appellant's age. According to the respondents, the order of the High Court impugned in
the present appeal did not call for any interference and the appeal was liable to be
dismissed.
13.

As indicated in the very beginning of this judgment, the Juvenile Justice Act, 2000, was
enacted to deal with offences allegedly committed by juveniles on a different footing
from adults, with the object of rehabilitating them. The need to treat children differently
from adults in relation to commission of offences had been under the consideration of
the Central Government ever since India achieved independence. With such object in
mind, Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the
constitutional goals contemplated in Articles 15(3), 39(e) and (f), 45 and 47 of the
Constitution imposing on the State a responsibility of ensuring that all the needs of
children are met and that their basic human rights are fully protected. Subsequently, in
keeping with certain international Conventions and in particular the Convention on the
Rights of the Child and the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985, commonly known as the Beijing Rules, the
Legislature enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 to
attain the following objects :

(i)

to lay down the basic principles for administering justice to a juvenile or the child;

(ii)

to make the juvenile system meant for a juvenile or the child more appreciative of the
developmental needs in comparison to criminal justice system as applicable to adults;

(iii)

to bring the juvenile law in conformity with the United Convention on the Rights of the
Child;

(iv)

to prescribe a uniform age of eighteen years for both boys and girls;

(v)

to ensure speedy disposal of cases by the authorities envisaged under this Bill
regarding juvenile or the child within a time limit of four months;

(vi)

to spell out the role of the State as a facilitator rather than doer by involving voluntary
organizations and local bodies in the implementation of the proposed legislation;

(vii)

to create special juvenile police units with a humane approach through sensitization
and training of police personnel;
- 69 -

(viii)

to enable increased accessibility to a juvenile or the child by establishing Juvenile


Justice Boards and Child Welfare Committees and Homes in each district or group of
districts;

(ix)

to minimize the stigma and in keeping with the developmental needs of the juvenile or
the child, to separate the Bill into two parts - one for juveniles in conflict with law and the
other for the juvenile or the child in need of care and protection;

(x)

to provide for effective provisions and various alternatives for rehabilitation and social
reintegration such as adoption, foster care, sponsorship and aftercare of abandoned,
destitute, neglected and delinquent juvenile and child." The said Act ultimately came
into force on 1st April, 2001.

14.

Section 2(k) of the said Act defines a juvenile or child as a person who has not
completed eighteenth years of age. A broad distinction has, however, been made
between juveniles in general and juveniles who are alleged to have committed
offences. Section 2(l) defines "a juvenile in conflict with law" as a juvenile who is
alleged to have committed an offence. Determination of age, therefore, assumes great
importance in matters brought before the Juvenile Justice Boards. In fact, Chapter II of
the Juvenile Justice Act, 2000, deals exclusively with juveniles in conflict with law and
provides a complete Code in regard to juveniles who are alleged to have committed
offences which are otherwise punishable under the general law of crimes.

15.

Section 4 of the Juvenile Justice Act, 2000, provides for constitution of Juvenile Justice
Boards for every district in a State to exercise and discharge the duties conferred or
imposed on such Boards in relation to juveniles in conflict with law.

16.

Section 18 of the Act prohibits joint proceedings and trial of a juvenile and a person
who is not a juvenile and the punishment that can be awarded to a juvenile is
enumerated in Section 15.

17.

Since the application of the Juvenile Justice Act, 2000, to a person brought before the
Juvenile Justice Board (hereinafter referred to as `the Board') depends on whether
such person is a juvenile or not within the meaning of Section 2(k) thereof, the
determination of age assumes special importance and the said responsibility has
been cast on the said Board. Subsequently, after the decision of a Constitution Bench
of this Court in the case of Pratap Singh vs. State of Jharkhand & Another [(2005) 3
SCC 551], the legislature amended the provisions of the Act by the Amendment Act,
2006, by substituting Section 2(l) to define a "juvenile in conflict with law" as a "juvenile
who is alleged to have committed an offence and has not completed eighteen years of
age as on the date of commission of such offence" (emphasis supplied) and to include
Section 7-A which reads as follows:- 70 -

"7A. Procedure to be followed when claim of juvenility is raised before any court.- (1)
Whenever a claim of juvenility is raised before any court or a court is of the opinion that
an accused person was a juvenile on the date of commission of the offence, the court
shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so
as to determine the age of such person, and shall record a finding whether the person
is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be
recognised at any stage, even after final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act and the rules made there
under, even if the juvenile has ceased to be so on or before the date of commencement
of this Act. (2) If the court finds a person to be a juvenile on the date of commission of
the offence under sub-section (1), it shall forward the juvenile to the Board for passing
appropriate order, and the sentence if any, passed by a court shall be deemed to have
no effect."(Emphasis supplied)
18.

Section 7-A makes provision for a claim of juvenility to be raised before any Court at
any stage, even after final disposal of a case and sets out the procedure which the
Court is required to adopt, when such claim of juvenility is raised. It provides for an
inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine
the age of a person and to record a finding whether the person in question is a juvenile
or not. The aforesaid provisions were, however, confined to Courts, and proved
inadequate as far as the Boards were concerned. Subsequently, in the Juvenile
Justice (Care and Protection of Children) Rules, 2007, which is a comprehensive
guide as to how the provisions of the Juvenile Justice Act, 2000, are to be
implemented, Rule 12 was introduced providing the procedure to be followed by the
Courts, the Boards and the Child Welfare Committees for the purpose of determination
of age in every case concerning a child or juvenile or a juvenile in conflict with law.
Since the aforesaid provisions are interconnected and lay down the procedures for
determination of age, the said Rule is reproduced herein below :

"12. Procedure to be followed in determination of Age.(1)

In every case concerning a child or a juvenile in conflict with law, the court or the Board
or as the case may be the Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in conflict with law within a
period of thirty days from the date of making of the application for that purpose.

(2)

The Court or the Board or as the case may be the Committee shall decide the juvenility
or otherwise of the juvenile or the child or as the case may be the juvenile in conflict
with law, prima facie on the basis of physical appearance or documents, if available,
- 71 -

and send him to the observation home or in jail.


(3)

In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent
certificates, if available; and in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted Medical Board, which will declare the age
of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the Board or, as the
case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year. and, while passing orders in such case
shall, after taking into consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age as regards such child or the juvenile
in conflict with law.

(4)

if the age of a juvenile or child or the juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of the conclusive proof specified in
sub-rule (3), the Court or the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the status of juvenility or otherwise,
for the purpose of the Act and these rules and a copy of the order shall be given to such
juvenile or the person concerned.

(5)

Save and except where, further inquiry or otherwise is required, inter alia in terms of
section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.

(6)

The provisions contained in this rule shall also apply to those disposed of cases, where
the status of juvenility has not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the
Act for passing appropriate order in the interest of the juvenile in conflict with law." SubRules (4) and (5) of Rule 12 are of special significance in that they provide that once the
age of a juvenile or child in conflict with law is found to be less than 18 years on the date
of offence on the basis of any proof specified in sub- rule (3) the Court or the Board or
- 72 -

as the case may be the Child Welfare Committee appointed under Chapter IV of the
Act, has to pass a written order stating the age of the juvenile or stating the status of the
juvenile, and no further inquiry is to be conducted by the Court or Board after
examining and obtaining any other documentary proof referred to in Sub-rule (3) of
Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the
provisions of Section 7A when a claim of juvenility is raised.
19.

One of the problems which has frequently arisen after the enactment of the Juvenile
Justice Act, 2000, is with regard to the application of the definition of "juvenile" under
Section 2(k) and (l) in respect of offences alleged to have been committed prior to 1st
April, 2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986
Act, the upper age limit for male children to be considered as juveniles was 16 years.
The question which has been frequently raised is, whether a male person who was
above 16 years on the date of commission of the offence prior to 1st April, 2001, would
be entitled to be considered as a juvenile for the said offence if he had not completed
the age of 18 years on the said date. In other words, could a person who was not a
juvenile within the meaning of the 1986 Act when the offence was committed, but had
not completed 18 years, be governed by the provisions of the Juvenile Justice Act,
2000, and be declared as a juvenile in relation to the offence alleged to have been
committed by him?

20.

The said question, which is identical to the question raised in these proceedings, was
considered in the case of Arnit Das vs. State of Bihar [(2000) 5 SCC 488], wherein, in
the light of the definition of "juvenile" under the 1986 Act, which was then subsisting,
this Court came to a finding that the procedures prescribed by the 1986 Act were to be
adopted only when the Competent Authority found the person brought before it or
appearing before it to be under 16 years of age, if a boy, and under 18 years of age, if a
girl, on the date of being so brought or such appearance first before the Competent
Authority. This Court also came to a finding that the date of commission of offence is
irrelevant for finding out whether the person is a juvenile within the meaning of Clause

(h)

of Section 2 of the 1986 Act. In the said decision, this Court sought to distinguish the
earlier decisions in the case of Santenu Mitra's case (supra), Bhola Bhagat vs. State of
Bihar [(1997) 8 SCC 720] and Krishna Bhagwan vs. State of Bihar [AIR 1989 Pat. 217],
which was a Full Bench decision.
It also over-ruled the decision of the Calcutta High Court in Dilip Saha vs. State of W.B.
[AIR 1978 Cal. 529], where the Calcutta High Court, while interpreting the provisions of
the West Bengal Children's Act, 1959, which is a parry material enactment, took the
view that the age of the accused at the time of commission of the offence is the relevant
age for attracting the provisions of the said Act and not his age at the time of trial.
- 73 -

21.

The question which fell for decision in Arnit Das's case (supra), once again fell for the
consideration of this Court in the case of Pratap Singh's case (supra), where the
decision of this Court in Umesh Chandra's case (supra), which expressed a view
which was contrary to that expressed in Arnit Das's case (supra), was brought to the
notice of the Court, which referred the matter to the Constitution Bench to settle the
divergence of views. In fact, the Constitution Bench formulated two points for decision,
namely, (a) Whether the date of occurrence will be the reckoning date for determining
the age of the alleged offender as juvenile offender or the date when he is produced in
the Court/competent Authority? (b) Whether the Act of 2000 will be applicable in a case
where a proceeding is initiated under the 1986 Act and was pending when the Act of
2000 was enforced with effect from 1.4.2001?

22.

While considering the first question, the Constitution Bench had occasion to consider
the decision of the three Judge Bench in Umesh Chandra's case (supra), wherein it
was held that the relevant date for applicability of the Act so far as age of the accused,
who claims to be a child, is concerned, is the date of occurrence and not the date of
trial. Consequently, the decision in Arnit Das's case (supra) was over-ruled and the
view taken in Umesh Chandra's case (supra) was declared to be the correct law. On
the second point, after considering the provisions of Sections 3 and 20 of the Juvenile
Justice Act, 2000, along with the definition of "juvenile" in Section 2(k) of the Juvenile
Justice Act, 2000, as contrasted with the definition of a male juvenile in Section 2(h) of
the 1986 Act, the majority view was that the 2000 Act would be applicable to a
proceeding in any Court/Authority initiated under the 1986 Act which is pending when
the 2000 Act came into force and the person had not completed 18 years of age as on
1.4.2001. In other words, a male offender, who was being proceeded with in any
Court/Authority initiated under the 1986 Act and had not completed the age of 18 years
on 1.4.2001, would be governed by the provisions of Juvenile Justice Act, 2000.

23.

In his concurring judgment, S.B. Sinha, J., while considering the provisions of Section
20 of the Juvenile Justice Act, 2000, observed that for the purpose of attracting Section
20 it had to 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. The unanimous view of the Constitution Bench was that the provisions
of the Juvenile Justice Act, 2000, have prospective effect and not retrospective effect,
except to cover cases where though the male offender was above 16 years of age at
the time of commission of the offence, he was below 18 years of age as on 1.4.2001.
Consequently, the said Act would cover earlier cases only where a person had not
completed the age of 18 years on the date of its commencement and not otherwise.

24.

The said decision in Pratap Singh's case (supra) led to the substitution of Section 2(l)
- 74 -

and the introduction of Section 7A of the Act and the subsequent introduction of Rule
12 in the Juvenile Justice Rules, 2007, and the amendment of Section 20 of the Act.
25.

Read with Sections 2(k), 2(l), 7A and Rule 12, Section 20 of the Juvenile Justice Act,
2000, as amended in 2006, is probably the Section most relevant in setting at rest the
question raised in this appeal, as it deals with cases which were pending on 1st April,
2001, when the Juvenile Justice Act, 2000, came into force. The same is, accordingly,
reproduced herein below :
"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.]"

26.

The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of
2006, to set at rest any doubts that may have arisen with regard to the applicability of
the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile,
who was below 18 years at the time of commission of the offence, was involved. The
Explanation which was added in 2006, makes it very clear that in all pending cases,
which would include not only trials but even subsequent proceedings by way of
revision or appeal, the determination of juvenility of a juvenile would be in terms of
Clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April,
2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the
Act would apply as if the said provision had been in force for all purposes and for all
material times when the alleged offence was committed. In fact, Section 20 enables
the Court to consider and determine the juvenility of a person even after conviction by
the regular Court and also empowers the Court, while maintaining the conviction, to
set aside the sentence imposed and forward the case to the Juvenile Justice Board
- 75 -

concerned for passing sentence in accordance with the provisions of the Juvenile
Justice Act, 2000.
27.

At this point it may be noted that the decision of the Constitution Bench in Pratap
Singh's case (supra) was rendered at a point of time when the amendments to
Sections 2(l) and 20 and the introduction of Section 7-A had not yet been effected, nor
was Rule 12 of the 2007 Rules available. Several decisions on the applicability of the
2000 Act to children who were above 16 but below 18 years on the date of commission
of the offence have been rendered after the Juvenile Justice Act, 2000, came into force
and several others were rendered after the amendments were introduced in the said
Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules. The
decisions rendered by this Court and the High Courts prior to 1st April, 2001, when the
Juvenile Justice Act, 2000, came into force and thereafter can, therefore, be divided
into two groups. The decision in Pratap Singh's case (supra) and in the case of Munney
@ Rahat Jan Khan vs. State of U.P. [(2006) 12 SCC 697] fall into the first category,
whereas the decisions in Jameel vs. State of Maharashtra [(2007) 11 SCC 420], Vimal
Chadha vs. Vikas Chaudhary [(2008) 8 SCALE 608], Babloo Pasi vs. State of
Jharkhand [(2008) 13 SCALE 137] and Ranjit Singh vs. State of Haryana [(2008) 9
SCC 453] fall into the second category. Although, the Constitution Bench decision in
Pratap Singh's case (supra) and Munney's case (supra) are not really relevant since
they have been rendered prior to 22nd August, 2006, when the Amending Act 33 of
2006 came into force, they assume a modicum of significance since they have been
referred to and relied upon even after the Amending Act and the 2007 Rules came into
force on 22.8.2006 and 26.10.2007, respectively.

28.

Of the decisions rendered after the amendments effected in 2006 to the Juvenile
Justice Act, 2000, the first decision of note is that of Jameel's case (supra) rendered on
16.1.2007 wherein the amendments to the Act effected by the Amendment Act 33 of
2006, which came into effect on 22.8.2006, were not even noticed. The next decision
rendered on 27.5.2008 is in the case of Vimal Chadha's case (supra), wherein,
although, the amendment of the Act and the introduction of the Juvenile Justice Rules,
2007, were brought to the notice of the Court, the same were not considered and the
decision was rendered in the light of the decision rendered in Pratap Singh's case
(supra) and other cases decided prior to 1.4.2001.

29.

The next decision rendered on the same point on 11.9.2008 was the decision in Ranjit
Singh's case (supra) wherein also the amendments to Section 2(l) and 20 and the
introduction of Section 7-A in the Juvenile Justice Act, 2000, and the introduction of the
2007 Rules had not been considered and the decision passed sub silentio

30.

Similar was the situation in Babloo Pasi's case (supra) decided on 3.10.2008 which
- 76 -

basically dealt with Section 49 of the Juvenile Justice Act, 2000 and Rule 22 of the
Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is
pari materia with Rule 12 of the 2007 Rules. While deciding the said case, the Hon'ble
Judges did not also have occasion to consider the amendments effected to the
Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into
force on 22.8.2006. 31. None of the aforesaid decisions are of much assistance in
deciding the question with regard to the applicability of the definition of "Juvenile" in
Section 2(k) and 2(l) of the Juvenile Justice Act, 2000, as amended in 2006, whereby
the provisions of the said Act were extended to cover juveniles who had not completed
18 years of age on or before the coming into force of the Juvenile Justice Act, 2000 on
1.4.2001 (Emphasis supplied). The effect of the proviso to Section 7-A introduced by
the Amending Act makes it clear that the claim of juvenility may be raised before any
Court which shall be recognized at any stage, even after final disposal of the case, and
such claim shall be determined in terms of the provisions contained in the Act and the
Rules made there under which includes the definition of "Juvenile" in Section 2(k) and
2(l) of the Act even if the Juvenile had ceased to be so on or before(emphasis supplied)
the date of commencement of the Act. The said intention of the legislature was
reinforced by the amendment effected by the said Amending Act to Section 20 by
introduction of the Proviso and the Explanation thereto, wherein also it has been
clearly indicated that in any pending case in any Court the determination of juvenility of
such a juvenile has to be in terms of clause 2(l) even if the juvenile ceases to be so "on
or before the date of commencement of this Act" (emphasis supplied) and it was also
indicated that the provisions of the Act would apply as if the said provisions had been in
force for all purposes and at all material times when the alleged offence was
committed.
32.

Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile
Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the
Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides
that even in disposed of cases of juveniles in conflict with law, the State Government or
the Board could, either suo motu or on an application made for the purpose, review the
case of a juvenile, determine the juvenility and pass an appropriate order under
Section 64 of the Act for the immediate release of the juvenile whose period of
detention had exceeded the maximum period provided in Section 15 of the Act, i.e., 3
years.

33.

In addition to the above, Section 49 of the Juvenile Justice Act, 2000 is also of
relevance and is reproduced herein below :
"49. Presumption and determination of age.-(1) Where it appears to a competent
- 77 -

authority that person brought before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile or the child, the competent
authority shall make due inquiry so as to the age of that person and for that purpose
shall take such evidence as may be necessary (but not an affidavit) and shall record a
finding whether the person is a juvenile or the child or not, stating his age as nearly as
may be. (2) No order of a competent authority shall be deemed to have become invalid
merely by any subsequent proof that the person in respect of whom the order has been
made is not a juvenile or the child, and the age recorded by the competent authority to
be the age of person so brought before it, shall for the purpose of this Act, be deemed to
be the true age of that person."
34.

Sub-Section (1) of Section 49 vests the Competent Authority with power to make due
inquiry as to the age of a person brought before it and for the said purpose to take such
evidence as may be necessary (but not an affidavit) and shall record a finding as to
whether the person is a juvenile or a child or not, stating his age as nearly as may be. SubSection (2) is of equal importance as it provides that no order of a Competent Authority
would be deemed to have become invalid merely on account subsequent proof that the
person, in respect of whom an order is made, is not a juvenile or a child, and the age
recorded by the Competent Authority to be the age of the person brought before it, would,
for the purpose of the Act, be deemed to be the true age of a child or a juvenile in conflict
with law. Sub-Rule (3) of Rule 12 indicates that the age determination inquiry by the Court
or Board, by seeking evidence, is to be derived from :

(i)

the matriculation or equivalent certificates, if available, and in the absence of the


same;

(ii)

the date of birth certificate from the school (other than a play school) first attended; and
in the absence whereof;

(iii)

the birth certificate given by a corporation or a municipal authority or a Panchayat;

35.

Sub-Clause (b) of Rule 12(3) provides that only in the absence of any such document,
would a medical opinion be sought for from a duly constituted Medical Board, which
would declare the age of the juvenile or the child. In case exact assessment of the age
cannot be done, the Court or the Board or as the case may be, the Child Welfare
Committee, for reasons to be recorded by it, may, if considered necessary, give benefit
to the child or juvenile by considering his/her age on the lower side within a margin of
one year.

36.

As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as
amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, the
scheme of the Act is to give children, who have, for some reason or the other, gone
- 78 -

astray, to realise their mistakes, rehabilitate themselves and rebuild their lives and
become useful citizens of society, instead of degenerating into hardened criminals.
37.

Of the two main questions decided in Pratap Singh's case (supra), one point is now
well established that the juvenility of a person in conflict with law has to be reckoned
from the date of the incident and not from the date on which cognizance was taken by
the Magistrate. The effect of the other part of the decision was, however, neutralised by
virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, where
under the provisions of the Act were also made applicable to juveniles who had not
completed eighteen years of age on the date of commission of the offence. The law as
now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with
Rules 12 and 98, places beyond all doubt that all persons who were below the age of
18 years on the date of commission of the offence even prior to 1st April, 2001, would
be treated as juveniles, even if the claim of juvenility was raised after they had attained
the age of 18 years on or before the date of commencement of the Act and were
undergoing sentence upon being convicted.

38.

The instant case is covered by the amended provisions of Sections 2(k), 2(l), 7A and
20 of the Juvenile Justice Act, 2000. However, inasmuch as, the appellant was found
to have completed the age of 16 years and 13 days on the date of alleged occurrence,
the High Court was of the view that the provisions of the Juvenile Justice Act, 1986,
would not apply to the appellant's case. Of course, the High Court, while deciding the
matter, did not have the benefit of either the amendment of the Act or the introduction of
the Juvenile Justice Rules, 2007. Even otherwise, the matter was covered by the
decision of this Court in the case of Rajinder Chandra's case (supra), wherein this
Court, inter alia, held that when a claim of juvenility is raised and on the evidence
available two views are possible, the Court should lean in favour of holding the
offender to be a juvenile in borderline cases.
In any event, the statutory provisions have been altered since then and we are now
required to consider the question of the claim of the appellant that his date of birth was
Kartik Sudi 1, Samvat Year 2039, though no basis has been provided for the fixation of
the said date itself in the light of the amended provisions. Often, parents of children,
who come from rural backgrounds, are not aware of the actual date of birth of a child,
but relate the same to some event which may have taken place simultaneously. In
such a situation, the Board and the Courts will have to take recourse to the procedure
laid down in Rule 12, but such an exercise is not required to be undertaken in the
present case since even according to the determination of the appellant's age by the
High Court the appellant was below eighteen years of age when the offence was
alleged to have been committed.
- 79 -

39.

Having regard to the views expressed hereinabove, we are unable to sustain the
impugned order of the High Court in holding that the provisions of the Juvenile Justice
Act, 1986, would not be applicable to the appellant's case since he was allegedly 13
days above the age prescribed.

40.

In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in
force and under Clause (h) of Section 2 a juvenile was described to mean a child who
had not attained the age of sixteen years or a girl who had not attained the age of
eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in
Section 2(k) a juvenile or child was defined to mean a child who had not completed
eighteen years of age which was given prospective prospect. However, as indicated
hereinbefore after the decision in Pratap Singh's case (supra), Section 2(l) was
amended to define a juvenile in conflict with law to mean a juvenile who is alleged to
have committed an offence and has not completed eighteen years of age as on the
date of commission of such offence; Section 7A was introduced in the 2000 Act and
Section 20 thereof was amended whereas Rule 12 was included in the Juvenile
Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile
Justice Act, 2000. Section 7A of the Juvenile Justice Act, 2000, made provision for the
claim of juvenility to be raised before any Court at any stage, as has been done in this
case, and such claim was required to be determined in terms of the provisions
contained in the 2000 Act and the Rules framed there under, even if the juvenile had
ceased to be so on or before the date of commencement of the Act. Accordingly, a
juvenile who had not completed eighteen years on the date of commission of the
offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the
provisions of Section 2(k) had always been in existence even during the operation of
the 1986 Act.

41.

The said position was re-emphasised by virtue of the amendments introduced in


Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to
Section 20, which made it even more explicit that in all pending cases, including trial,
revision, appeal and any other criminal proceedings in respect of a juvenile in conflict
with law, the determination of juvenility of such a juvenile would be in terms of clause (l)
of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said
provisions had been in force when the alleged offence was committed.

42.

In the instant case, there is no controversy that the appellant was about sixteen years
of age on the date of commission of the alleged offence and had not completed
eighteen years of age. In view of Sections 2(k), 2(l) and 7A read with Section 20 of the
said Act, the provisions thereof would apply to the appellant's case and on the date of
the alleged incident it has to be held that he was a juvenile.
- 80 -

43.

The appeal has, therefore, to be allowed on the ground that notwithstanding the
definition of "juvenile" under the Juvenile Justice Act, 1986, the appellant is covered by
the definition of "juvenile" in Section 2(k) and the definition of "juvenile in conflict with
law" in Section 2(l) of the Juvenile Justice Act, 2000, as amended.

44.

We, therefore, allow the appeal and set aside the order passed by the High Court and
in keeping with the provisions of Sections 2(k), 2(l),7A and 20 of the Juvenile Justice
Act, 2000 and Rules 12 and 98 of the Juvenile Justice Rules, 2007, hold that since the
appellant was below 18 years of age at the time of commission of the offence the
provisions of the said Act would apply in his case in full force.

45.

The matter is accordingly remitted to the Juvenile Justice Board, Ajmer, for disposal in
accordance with law, within three months from the date of receipt of a copy of this
order, having regard to the fact that the offence is alleged to have been committed
more than ten years ago. If, however, the appellant has been in detention for a period
which is more than the maximum period for which a juvenile may be confined to a
Special Home, the Board shall release the appellant from custody forthwith.

________________J.
(ALTAMAS KABIR) ________________J.
(CYRIAC JOSEPH) New Delhi
Dated : 05.05.2009

- 81 -

Delhi High Court


Lal Mohammad vs The State (Govt Of Nct Delhi ) on 12 May, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 12.05.2009
+ CRL. M. B. 1551/2008 IN CRL. APPEAL No. 1027/2008
LAL MOHAMMAD ..... Appellant
versus
THE STATE (GOVT OF NCT DELHI ) ..... Respondent
Advocates who appeared in this case :
For the Appellant :
Mr B. K. Kapoor For the Respondent/State : Mr M. N. Dudeja, APP CORAM :HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE P. K. BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES
BADAR DURREZ AHMED, J (ORAL)
1.

This is an application for suspension of sentence and grant of bail filed on behalf of the
appellant Lal Mohammad. During the pendency of this application, the Supreme
Court has made a definitive pronouncement with regard to the question of juvenility in
the case of Hari Ram v. State of Rajasthan and Anr.: Criminal Appeal No. 907/2009
decided on 05.05.2009. The said decision in Hari Ram (supra) has taken into account
the earlier Constitution Bench decision of the Supreme Court in the case of Pratap
Singh v. State of CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.1 of 13 Jharkhand
and Anr.: (2005) 3 SCC 551 as also the subsequent amendments introduced by virtue
of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
(hereinafter referred to as the Amendment Act of 2006) and particularly the
amendment carried out in Section 2(l) and insertion of Section 7A in the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the
Juvenile Justice Act).

2.

Before we examine the legal aspects, it would be appropriate if we set out the factual
background with regard to the question of juvenility of the appellant Lal Mohammad.
- 82 -

Initially, at the stage of trial, the present appellant had raised the issue of his being a
juvenile. The same was considered by the learned Additional Sessions Judge, who
directed that the juvenile along with the documents submitted by him in support of his
claim be forwarded to the Juvenile Justice Board for conducting an enquiry and for
submitting a report in this regard. As per the Juvenile Justice Board, the appellant Lal
Mohammad was found to be of 15 years and 3 months on the date of his arrest i.e.
18.11.2000. The date of offence, which is of kidnapping and murder of Vikas Bhandari,
was 13.11.2000. The finding returned by the Juvenile Justice Board was assailed in
Criminal Appeal No. 81/2003 which was disposed of by an order dated 08.10.2003
whereby the matter was remanded to the Juvenile Justice Board with the direction to
reconsider CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.2 of 13 the record and to
consider the relevant documents available on record and to consider the deposition of
the Head Master of the school in which the appellant is said to have studied.
Thereafter the Juvenile Justice Board found that the school records had not been
properly maintained and there was great suspicion about the genuineness of the
admission entry of the appellant Lal Mohammad. The Board, therefore, proposed that
the age of the appellant Lal Mohammad be determined by a duly constituted Medical
Board. Consequently, the file was sent back to the Court of the learned Additional
Sessions Judge, who, by an order dated 06.01.2004, directed the determination of the
age of the appellant by a duly constituted Medical Board of the All India Institute of
Medical Sciences. According to the report of the said Medical Board, the appellant was
found to be of 21 years of age on 19.01.2004. This being the position, the learned
Additional Sessions Judge was of the view that as per the Medical Boards finding, the
appellant Lal Mohammad was more than 17 years of age on the date of commission of
the offence, that is, on 13.11.2000. Consequently, the learned Additional Sessions
Judge rejected the claim of the appellant Lal Mohammad to be treated as a juvenile as
he was more than 16 years of age under the Juvenile Justice Act, 1986.
3.

Being aggrieved by the said decision a Criminal Revision Petition bearing No.
310/2004 was filed before a learned Single Judge CRL. M.B. 1551/08 IN CRL. A.1027/
08 Page No.3 of 13 of this Court, who declined to interfere with the order passed by the
learned Additional Sessions Judge and dismissed the revision petition.

4.

The matter rested there till the trial in this case. At the time of trial, it had been argued
by the counsel on behalf of the appellant Lal Mohammad that Lal Mohammad was a
juvenile. However, the Trial Court felt that the issue could not be agitated at that stage
for the reason that the High Court had already dismissed the revision petition of Lal
Mohammad in which he had assailed the order of the learned Additional Sessions
Judge dated 19.04.2004 whereby the said Court declined to accept appellants
- 83 -

request to be treated as a juvenile. The Trial Court rejected the plea of juvenility raised
by the appellant in the following manner:"44. In his written submission by accused Lal Mohd. Almost similar points as referred
by accused Rajneesh have been raised by counsel Sh. D.K. Sharma. It has been
vehemently pleaded that the entire evidence against accused Lal Mohd. is to be
appreciated keeping in view the fact that he is a juvenile. This issue cannot be agitated
at this stage for the reason that Honble Justice Ms. Manju Goel in this very case
reported in 2005 (2) JCC 660 titled Lal Mohd. Vs. State dismissed the revision of Lal
Mohd. wherein he had assailed the order dated 19.04.2004 of Ltd.
Session Court vide which, the Session Court declined to accept Lal Mohd. to be
treated as Juvenile. Lal Mohd. was opined as 21 years of age on 19.01.2004 as per
report of Medical Board of AIIMS whereby meaning that on the date of commission of
offence i.e. 13.11.2000 he was more than 17 years of age. He was to be therefore
governed as per the definition of the Juvenile available in Juvenile Justice Act 1986
according to which boy up to the age of 16 years is to be treated as Juvenile. Counsel
has also relied on the CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.4 of 13
authority reported in Manu/S.C./0230/2005 and AIR 2005 SC 2262 titled Bijender
Singh Vs. State of Haryana which dealt with application of Juvenile Justice (Care &
Protection of Children Act 2000) vis--vis Juvenile Justice Act 1986 wherein the
Principles laid down in the case of Pratap Singh Vs. State of Jharkhand & Anr. was
reiterated by Honourable Apex Court. It inter alia held:(a)

The reckoning date for the determination of the age of Juvenile is the date of offence
and not the date when he is produced before the Authority or in the Court.

(b)

The 2000 Act would be applicable in a pending proceeding in any Court/Authority


initiated under 1986 Act and is pending when the 2000 Act came into force and person
had not completed 18 years of age as on 01.04.2001. 45. In this case the Honourable
Justice Manju Goel of our own High Court upheld the age of accused Lal Mohd. as 21
years as on 19.01.2004. If computation is made backward, on 19.01.2001 accused
was 18 years in age this reflects that on 01.04.2001 age of accused was more than 18
years so the Authority relied on by the defence as referred above are not applicable to
accused Lal Mohd. He was major on date of offence legally. ..."

5.

From the above, it is apparent that as on the date of the offence, that is, on 13.11.2000,
the appellant was approximately 17 years and 10 months old. This is so because,
according to the Medical Board, his age has been determined to be 21 years as on
19.01.2004. This clearly indicates that the appellant Lal Mohammad was below the
age of 18 years on the date of the offence. However, he crossed the age of 18 years on
- 84 -

19.01.2004 and was over 18 years of age on 01.04.2001 when the Juvenile Justice Act
came into force. It was in view of this CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page
No.5 of 13 that the Trial Court, following the decision of the Supreme Court in Pratap
Singh's case (supra), rejected the plea of the appellant Lal Mohammad with regard to
his being a juvenile. Two points were decided by the Supreme Court in Pratap Singh's
case (supra). They are:(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.

(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
person had not completed 18 years of age as on 1.4.2001." (underlining added)

6.

However, subsequent to the said Constitution Bench decision, notable amendments


were introduced in the Juvenile Justice Act by the Amendment Act of 2006.
Unfortunately, these amendments were not noticed by the Trial Court although the
decision of the Trial Court was rendered on 15.05.2008, much after the amendments
had been introduced. The definition of juvenile in conflict with law was amended and
the new Section 2 (l) reads as under:2(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an
offence and has not completed eighteenth year of age as on the date of commission of
such offence;
Section 7A was inserted, which reads as under :CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.6 of 13 "7A. Procedure to be followed
when claim of juvenility is raised before any court.-- (1) Whenever a claim of juvenility
is raised before any court or a court is of the opinion that an accused person was a
juvenile on the date of commission of the offence, the court shall make an inquiry, take
such evidence as may be necessary (but not an affidavit) so as to determine the age of
such person, and shall record a finding whether the person is a juvenile or a child or
not, stating his age as nearly as may be: Provided that a claim of juvenility may be
raised before any court and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in terms of the provisions
contained in this Act and the rules made thereunder, even if the juvenile has ceased to
be so on or before the date of commencement of this Act. (2) If the court finds a person
to be a juvenile on the date of commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate order, and the sentence if
any, passed by a court shall be deemed to have no effect."
(underlining added) Section 15 (1) (g) was also amended and the amended
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provision reads as under:"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 thinks
so fit,(a)

xxxx

xxxx

xxxx xxxx

(b)

xxxx

xxxx

xxxx xxxx

(c)

xxxx

xxxx

xxxx xxxx

(d)

xxxx

xxxx

xxxx xxxx

(e)

xxxx

xxxx

xxxx xxxx

(f)

xxxx

xxxx

xxxx xxxx

CRL. M.B. 1551/08 IN CRL. A.1027/ 08

Page No.7 of 13

(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)

xxxx

xxxx

xxxx xxxx

(3)

xxxx

xxxx

xxxx xxxx

(4)

xxxx

xxxx

xxxx xxxx

Similarly, an amendment was made in Section 16 also.

The said

provision, after the amendment of 2006, reads as under:"16. Order that may not be passed against juvenile.-(1)

Notwithstanding anything to the contrary contained in any other law for the time being
in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for
any term which may extend to imprisonment for life, or committed to prison in default of
payment of fine or in default of furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has
committed an offence and the Board is satisfied that the offence committed is of so
serious in nature or that his conduct and behaviour have been such that it would not be
in his interest or in the interest of other juvenile in a special home to send him to such
special home and that none of the other measures provided under this Act is suitable
or sufficient, the Board may order the juvenile in conflict with law to be kept in such
place of safety and in such manner as it thinks fit and shall report the case for the order
- 86 -

of the State Government.


(2)

On receipt of a report from a Board under sub-section (1), the State Government may
make such arrangement in respect of the juvenile as it deems proper and may order
such juvenile to be kept under protective custody at such place and on such conditions
as it thinks fit:
CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.8 of 13 Provided that the period of
detention so ordered shall not exceed in any case the maximum period provided under
section 15 of this Act."
(underlining added) Similarly, Section 20 also saw an amendment and, postamendment, the said provision reads as under:"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 (l) 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."
(underlining added)

7.

The Supreme Court, in the said recent decision in Hari Ram (supra), considered the
amendments introduced by the Amendment Act CRL. M.B. 1551/08 IN CRL. A.1027/
08 Page No.9 of 13 of 2006 as also its earlier decision in Pratap Singh's case (supra)
and observed as under:"37. Of the two main questions decided in Pratap Singh's case (supra), one point is
now well established that the juvenility of a person in conflict with law has to be
reckoned from the date of the incident and not from the date on which cognizance was
taken by the Magistrate. The effect of the other part of the decision was, however,
neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of
- 87 -

2006, whereunder the provisions of the Act were also made applicable to juveniles
who had not completed eighteen years of age on the date of commission of the
offence. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20
and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were
below the age of 18 years on the date of commission of the offence even prior to 1st
April, 2001, would be treated as juveniles, even if the claim ofjuvenility was raised after
they had attained the age of 18 years on or before the date of commencement of the
Act and were undergoing sentence upon being convicted."
From the aforesaid extract, it is obvious that the requirement indicated in Pratap
Singhs case (supra) that the juvenile should not have completed the age of 18 years
as on 01.04.2001 has been neutralized by virtue of the amendments to the Juvenile
Justice Act, 2000 brought about by the Amendment Act of 2006. The result of the
amendments was that the Juvenile Justice Act was also made applicable to juveniles
who had not completed 18 years of age on the date of the commission of the offence
but had completed 18 years of age by 01.04.2001. The Supreme Court categorically
held that the law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20
and 49 read with Rules CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.10 of 13 12
and 98, made it clear beyond all doubt that all persons who are below the age of 18
years on the date of commission of the offence even prior to 01.04.2001, would be
treated as juveniles, even if the claim of juvenility was raised after they have attained
the age of 18 years on or before the date of commencement of the Act and were
undergoing sentence upon being convicted. In the present case, we find that the
appellant Lal Mohammad was below 18 years of age on the date of commission of the
offence, that is, on 13.11.2000. That is the only circumstance which now requires to be
considered. It does not matter as to whether he had or had not crossed the age of 18
years on 01.04.2001. This being the position, the appellant Lal Mohammad has to be
regarded as a juvenile in conflict with law under the Juvenile Justice Act, 2000 as
amended by the Amendment Act of 2006. As the provisions set out above indicate,
such a plea can be taken at any stage.
The appellant has taken that plea before us and, therefore, on the basis of facts
already determined, the appellant Lal Mohammad has to be regarded as a juvenile
under the said Act. That being the position, even if he is found to have committed the
offence for which he was charged, he could not be sentenced or detained for a period
in excess of three years in view of the provisions of Section 15 (1) (g) read with Section
16(1) and the proviso to Section 16 (2) of the Juvenile Justice Act, 2000.
CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.11 of 13
8.

The appellant Lal Mohammad has been sentenced to life imprisonment and he had
- 88 -

also undergone 8 years 3 months and 26 days in custody as on 04.04.2009 as per the
nominal roll submitted by the Superintendent, Central Jail No. 5, Tihar, New Delhi on
04.04.2009. This makes it clear that the appellant Lal Mohammad, who is to be
considered as a juvenile under the Juvenile Justice Act, 2000, has already spent a
period far in excess of the maximum period of detention which could have been
passed under the said Act. Consequently, whichever way his appeal is decided, he
cannot be detained any further. Even if he is found to be guilty of having committed the
offence, he could not have been sentenced for a period in excess of three years.
Furthermore, he could not have been sent to prison and he ought to have been
directed to be kept in a special home and if it was unsafe to keep him in a special home
under the circumstances given in Section 16 (1), he could be kept under protective
custody at a place of safety as defined in Section 2 (q) of the said Act. However, even
such detention or protective custody at such a place of safety cannot exceed the
maximum period provided under Section 15, which is a period of three years. Thus,
whichever way we look at the question of release from detention, the only answer is
that the appellant Lal Mohammad is entitled to be released forthwith. If he is to be
acquitted, it is obvious CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.12 of 13 that
he is to be released. Even if he is to be convicted, his detention and custody beyond
three years is not permissible under law.
9.

As a result, we dispose of this application by directing the release of the appellant Lal
Mohammad forthwith. The question as to whether he has been rightly convicted and
as to whether even the sentence to the extent of three years could have been passed
against the appellant Lal Mohammad would be considered on merits at the time of
hearing of the appeal.

BADAR DURREZ AHMED,


J P. K. BHASIN, J May 12, 2009
SR CRL. M.B. 1551/08
IN CRL. A.1027/ 08
Page No.13 of 13

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REPORTABLE

OTHER IMPORTANT CASES FOR REFERENCE


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 763 OF 2003
Jitendra Singh @ Babboo Singh & Anr. ... Appellants
Versus
State of U.P. ... Respondent
JUDGMENT
Madan B. Lokur, J.

1.

Three principal issues arise for consideration in this appeal. The first is whether the
appellant was a juvenile or a child as defined by Section 2(k) of the Juvenile Justice
(Care and Protection of Children) Act, 2000 on the date of occurrence of the offence
he was charged with. On a consideration of the Report called for by this Court on this
question, the issue must be answered in the affirmative.

2.

The second is whether the conviction of the appellant can be sustained on merits and,
if so, the sentence to be awarded to the appellant. In our opinion the conviction of the
appellant must be upheld and on the quantum of sentence, he ought to be dealt with in
accordance with the provisions of Section 20 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 read with Section 15 thereof.

3.

The third question is whether any appropriate measures can be taken to prevent the
recurrence of a situation, such as the present, where an accused is subjected to a trial
by a regular Court having criminal jurisdiction but he or she is later found to be a
juvenile. In this regard, we propose to give appropriate directions to all Magistrates
which, we hope, will prevent such a situation from arising again.

The facts :
4.

On the midnight of 23rd / 24th May 1988 it is alleged that Asha Devi was set on fire by
- 90 -

the appellants and two other persons. A demand for dowry, which she was unable to
meet, resulted in the unfortunate incident.
5.

On 24th May 1988 at about 5 a.m., Asha Devi's uncle came to know of the incident and
he lodged a complaint with the local police. In the meanwhile, Asha Devi had been
taken to the District Hospital where she succumbed to the burns.

6.

After completing the investigation, the local police filed a charge sheet on 10th July
1988 against the appellants and two other persons. The charge sheet alleged
offences committed under Section 147, Section 302, Section 304-B and Section 498A of the Indian Penal Code (for short the 'IPC').

7.

Thereafter the case proceeded to trial and the Sessions Judge, Rae Bareli in S.T. No.
186 of 1988 delivered judgment on 30th August 1990 convicting the appellants and
acquitting the other two persons. The appellants were convicted under Section 304-B
of the IPC (dowry death) and sentenced to undergo 7 years rigorous imprisonment.
They were also convicted under Section 498-A of the IPC (husband or relative of
husband of a woman subjecting her to cruelty) and sentenced to undergo 2 years
rigorous imprisonment and to pay a fine of Rs.100/-each.

8.

Feeling aggrieved by their conviction and sentence, the appellants preferred Criminal
Appeal No. 464 of 1990 in the Lucknow Bench of the Allahabad High Court. By its
judgment and order dated 23rd May 2003 the High Court dismissed the Criminal
Appeal. This is reported as 2003 (3) ACR 2431=MANU/UP/2115/2003.

9.

Against the judgment and order passed by the Allahabad High Court the appellants
came up in appeal to this Court. It may be mentioned that during the pendency of this
appeal the second appellant (father of the first appellant) died and therefore only the
appeal filed by the first appellant, the husband of Asha Devi, survives.

10.

During the pendency of these proceedings the appellant filed Criminal Miscellaneous
Petition No. 16974 of 2010 for raising additional grounds. He sought to contend that
on the date of commission of the offence, he was a juvenile or child within the meaning
of that expression as defined in Section 2(k) of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as the 'Act'). According to the
appellant his date of birth was 31st August 1974 and therefore, when the offence is
alleged to have been committed, he was about 14 years of age.

11.

The application for urging additional grounds was considered by this Court and by an
order dated 19th November 2010 it was held, while relying upon Pawan v. State of
Uttaranchal, (2009) 15 SCC 259 that prima facie there was material which
necessitated an inquiry into the claim of the appellant that he was a juvenile at the time
of commission of the offence. Accordingly, the following direction was given:
In the result we allow the appellant to urge the additional ground regarding juvenility of
- 91 -

the appellant on the date of the commission of the offence and direct the Trial Court to
hold an enquiry into the said question and submit a report as expeditiously as
possible, but not later than four months from today. We make it clear that the Trial
Court shall be free to summon the concerned School, Panchayat or the Electoral
office record or any other record from any other source which it considers necessary
for a proper determination of the age of the appellant. We also make it clear that in
addition to the above, the Trial Court shall be free to constitute a Medical Board
comprising at least three experts on the subject for determination of the age of the
appellant, based on medical tests and examination.
Report of the Additional Sessions Judge:
12.

The Additional Sessions Judge, Rae Bareli acted on the order dated 19th November
2010 and registered the proceedings as Miscellaneous Case No. 1 of 2010. He then
submitted his Report dated 18th February 2011 in which he accepted the claim of the
appellant that his date of birth was 31st August 1974. As such, the appellant was a
juvenile on the date of commission of the offence.

13.

For the purposes of preparing his Report, the Additional Sessions Judge examined
several witnesses including A.P.W. 1 Samar Bahadur Singh, Principal, Pre-Middle
School, Sohai Bagh who produced the school admission register pertaining to the
admission of the appellant in the school. The register showed the date of birth of the
appellant as 31st August 1974 and the Additional Sessions Judge found that the
register had not been tampered with.

14.

The Additional Sessions Judge also examined A.P.W. 11 Dr. Birbal who was a member
of the Medical Board constituted by him. The Medical Board examined the appellant
on 24th December 2010 and gave his age as about 40 years. Reference in this
context was also made to an ossification test conducted on the appellant while he was
in judicial custody in the District Jail in Rae Bareli during investigation of the case. The
ossification 8th test was conducted on July 1988 and that determined the appellant's
age as about 17 years.

15.

At this stage, it may be mentioned that on the basis of the ossification test the
appellant had applied for bail before the Additional Sessions Judge in Rae Bareli
being Bail Application No. 435 of 1988. The Additional Sessions Judge noted that
while the age of the appellant was determined at about 17 years by the Chief Medical
Officer, there could be a difference of about 2 years either way and therefore by an
order dated 13th July 1988 the application for bail was rejected.

16.

The appellant then moved the Lucknow Bench of the Allahabad High Court by filing a
bail application which was registered as Criminal Miscellaneous Case No. 1859(B) of
1988. By an order dated 25th November 1988 the Allahabad High Court granted bail
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to the appellant while holding, inter alia, that it was difficult to discard the opinion of the
Chief Medical Officer regarding the appellant's age.
17.

Coming back to the Report, the Additional Sessions Judge also examined A.P.W. 5
Pankulata the younger sister of deceased Asha Devi. She stated that Asha Devi was
about 4 or 5 years older than the appellant and that it was not unknown, apparently in
their community, for the wife to be older than the husband. The record of the case
shows that Asha Devi died at the age of about 19 after having been married for about
4 years. This would mean that the appellant was married to Asha Devi when he was
about 9 years old and that on the date of the incident he was about 14 years old.

18.

The Additional Sessions Judge also examined A.P.W. 8 Sanoj Singh, husband of
Pankulata, who gave a statement in tune with that of his wife. The Additional Sessions
Judge also examined A.P.W. 9 Narendra Bahadur Singh husband of A.P.W. 10 Kanti
Singh. All these witnesses stated to the effect that apparently in their community the
wife is normally older than the husband at the time of marriage. All these persons also
produced proof of their age to show that the wife (A.P.W. 5 Pankulata and A.P.W. 10
Kanti Singh) was older than her husband at the time of their marriage.

19.

On the basis of the material before him, the Additional Sessions Judge accepted the
claim of the appellant that he was younger than his wife at the time of marriage and
that his date of birth was 31st August 1974.

20.

Objections have been filed to this Report by the State of Uttar Pradesh, but the only
objection taken is that the documents pertaining to the education of the appellant were
produced after a great delay and not immediately. It was also submitted that it is
improbable that a girl of about 15 years of age would get married to a boy of about 9
years of age.

21.

The Report given by the Additional Sessions Judge has been examined with the
assistance of learned counsel and there is no reason to reject it. While the
circumstances are rather unusual, the fact remains that there is documentary
evidence to show from the school admission register (which has not been tampered
with) that the date of birth of the appellant is 31st August 1974. That apart, the medical
examination of the 8th appellant conducted on July 1988 less than two months after
the incident, also shows his age to be about 17 years. This was not doubted by the
Additional Session Judge while rejecting the bail application of the appellant and was
also not doubted by the Allahabad High Court while granting bail to him. Therefore, it
does appear that the appellant was about 17 years of age when the incident had
occurred and that he had set up a claim of being a juvenile or child soon after his arrest
and before the charge sheet was filed. In other words, the appellant was a juvenile or a
child within the meaning of that expression as defined in Section 2(k) of the Act.
Should the conviction be upheld:
- 93 -

22.

The next question that arises is whether the conviction of the appellant is justified or
not. Before examining the evidence on record, it is necessary to mention that both the
Trial Court as well as the High Court have concurrently found that the appellants had
demanded dowry from Asha Devi and that she had been set on fire for not having
complied with the demands for dowry.

23.

Section 304-B of the IPC which is the more serious offence for which the appellant has
been found guilty, reads as follows: 304-B. Dowry death.(1) Where the death of a
woman is caused by any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with any demand for dowry, such death shall be
called dowry death, and such husband or relative shall be deemed to have caused
her death.
Explanation for the purpose of this subsection, dowry shall have the same meaning
as in Section 2 of the Dowry Prohibition Act, 1961 (28of 1961). (2) Whoever commits
dowry death shall be punished with imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment for life.

24.

A plain reading of this section, which explains a dowry death, makes it clear that its
ingredients are (a) the death of a woman is caused by burns or a bodily injury or that it
occurs otherwise than under normal circumstances; (b) the death takes place within
seven years of her marriage; (c) the woman was subjected, soon before her death, to
cruelty or harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry.

25.

In the present case, both the Trial Court and the High Court have found that Asha Devi
had died of burn injuries as per the medical evidence; she had been set on fire on the
midnight of 23/24 May 1988 and taken to the hospital at about 4 a.m. on 24th May
1988 where she succumbed to the burn injuries at about 5.30 a.m.; she had been
married to the appellant for about 4 years before her death; and that the evidence of
PW-1 Ram Bahadur (uncle of Asha Devi) and PW-3 Tej Bahadur Singh (father of Asha
Devi) disclosed that demands were being made by the appellants for dowry soon
before her death. Apart from cash, a demand was made by the in-laws of Asha Devi for
a gold chain and a horse. Since the demands were not complied with, Asha Devi was
frequently beaten and harassed. She had brought this to the notice of her uncle as well
as her father. In fact, before her demise, she had written a letter to her father about the
beating and harassment given to her due to the inability to meet the dowry demands.
The letter was proved by the prosecution and was relied on by the Trial Court as well
as the High Court in accepting the version of the prosecution. Clearly, therefore, the
ingredients of Section 304-B of the IPC were made out.
- 94 -

26.

However, the case put up by the appellant was that Asha Devi had accidentally caught
fire while she was cooking and therefore it was a case of accidental death. This was
not accepted by both the Trial Court as well as the High Court since there was no
explanation given for the delay of about 4 hours in taking Asha Devi to the hospital if
the case was really one of accidental death. Moreover, there was nothing to suggest
that the appellant or anyone in the family had made any attempt to extinguish the fire.

27.

There is no doubt, on the basis of the facts found by the Trial Court as well as the High
Court from the evidence on record that a case of causing a dowry death had
convincingly been made out against the appellant. There is no apparent reason to
disturb the concurrent findings of fact arrived at by the Trial Court and the High Court
and so the conviction of the appellant must be upheld. Sentence to be awarded:

28.

On the sentence to be awarded to a convict who was a juvenile when he committed


the offence, there is a dichotomy of views.

29.

In the first category of cases, the conviction of the juvenile was upheld but the
sentence quashed. In Jayendra v. State of Uttar Pradesh, (1981) 4 SCC 149 the
conviction of the appellant was confirmed though he was held to be a child as defined
in Section 2(4) of the Uttar Pradesh Children Act, 1951. However, he was not sent to
an 'approved school' since he was 23 years old by that time. His sentence was
quashed and he was directed to be released forthwith.

30.

Similarly, in Bhoop Ram v. State of U.P. (1989) 3 SCC 1 this Court followed Jayendra
and while upholding the conviction of the appellant who was 28 years old by that time,
the sentence awarded to him was quashed.

31.

In Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419 yet another case under the
Uttar Pradesh Children Act, 1951 the conviction of the appellant was upheld but since
he was 30 years old by that time, his sentence was set aside.

32.

In Bhola Bhagat and other v. State of Bihar, (1997) 8 SCC 720 the conviction of the
appellant was upheld by this Court but the sentence was quashed keeping in mind the
provisions of the Bihar Children Act, 1970 read with the Bihar Children Act, 1982 and
the Juvenile Justice Act, 1986.

33.

In Upendra Kumar v. State of Bihar, (2005) 3 SCC 592 this Court followed Bhola
Bhagat and upheld the conviction of the appellant but quashed the sentence awarded
to him.

34.

In Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 one of the appellants was a
juvenile within the meaning of that expression occurring in Section 2(h) of the Juvenile
Justice Act, 1986. This Court held that if the accused was a juvenile on the date of
occurrence and continues to be so, then in that event he would have to be sentenced
to a juvenile home. However, if on the date of sentence, the accused is no longer a
- 95 -

juvenile, the sentence imposed on him would be liable to be set aside. In this context,
reference was made to Bhoop Ram.
35.

Finally in Vijay Singh v. State of Delhi, (2012) 8 SCC 763 the conviction of the
appellant was upheld but the sentence was quashed since he was about 30 years old
by that time.

36.

The second category of cases includes Satish @ Dhanna v. State of Madhya


Pradesh, (2009) 14 SCC 187 wherein the conviction of the appellant was upheld but
the sentence awarded was modified to the period of detention already undergone.
Similarly, in Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 the conviction of the
appellant was sustained but since the convict had undergone two years and four
months of incarceration, the sentence awarded to him was quashed.

37.

The third category of cases includes Hari Ram v. State of Rajasthan, (2009) 13 SCC
211 wherein the appellant was held to be a juvenile on the date of commission of the
offence. His appeal against his conviction was allowed and the entire case remitted to
the Juvenile Justice Board for disposal in accordance with law.

38.

In Daya Nand v. State of Haryana, (2011) 2 SCC 224 this Court followed Hari Ram and
directed the appellant to be produced before the Juvenile Justice Board for passing
appropriate orders in accordance with the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000.

39.

The fourth category of cases includes Ashwani Kumar Saxena v. State of Madhya
Pradesh, (2012) 9 SCC 750 in which the conviction of the appellant was upheld and
the records were directed to be placed before the Juvenile Justice Board for awarding
suitable punishment to the appellant.

40.

The sum and substance of the above discussion is that in one set of cases this Court
has found the juvenile guilty of the crime alleged to have been committed by him but
he has gone virtually unpunished since this Court quashed the sentence awarded to
him. In another set of cases, this Court has taken the view, on the facts of the case that
the juvenile is adequately punished for the offence committed by him by serving out
some period in detention. In the third set of cases, this Court has remitted the entire
case for consideration by the jurisdictional Juvenile Justice Board, both on the
innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile
is found guilty. In the fourth set of cases, this Court has examined the case on merits
and after having found the juvenile guilty of the offence, remitted the matter to the
jurisdictional Juvenile Justice Board on the award of sentence.

41.

In our opinion, the course to adopt is laid down in Section 20 of the Juvenile Justice
(Care and Protection of Children) Act, 2000. This reads as follows: 20. Special
provision in respect of pending cases. Not withstanding anything contained in this
- 96 -

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 (l) 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.
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.

43.

In the present case, the offence was committed by the appellant when the Juvenile
Justice Act, 1986 was in force. Therefore, only the 'punishments' not greater than
those postulated by the Juvenile Justice Act, 1986 ought to be awarded to him. This is
the requirement of Article 20(1) of the Constitution. The 'punishments' provided under
the Juvenile Justice Act, 1986 are given in Section 21 thereof and they read as
follows:
21. Orders that may be passed regarding delinquent juveniles.(1) Where a Juvenile
Court 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 Juvenile Court may, if it so thinks fit, (a) allow the juvenile to go home after
advice or admonition; (b) 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 that
Court may require, for the good behaviour and well-being of the juvenile for any period
not exceeding three years; Juvenile Justice Act, 1986 (c) direct the juvenile to be
released on probation of good conduct and placed under the care of any fit institution
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for the good behaviour and well-being of the juvenile for any period not exceeding
three years; (d) make an order directing the juvenile to be sent to a special home, (i) in
the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a
period of not less than three years; (ii) in the case of any other juvenile, for the period
until he ceases to be a juvenile:
Provided that xxx xxx xxx.
Provided further that xxx xxx xxx;
(e)

order the juvenile to pay a fine if he is over fourteen years of age and earns money. (2)
Where an order under clause (b), clause (c) or clause (e) of sub-section (1) is made,
the Juvenile Court 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 delinquent juvenile
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 delinquent juvenile :

Provided that xxx xxx xxx.


(3) xxx xxx xxx.
(4) xxx xxx xxx.
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.

45.

While dealing with the case of the appellant under the IPC, the fine imposed upon him
is only Rs.100/-. This is ex facie inadequate punishment considering the fact that Asha
Devi suffered a dowry death.

46.

Recently, one of us (T.S. Thakur, J.) had occasion to deal with the issue of
compensation to the victim of a crime. An illuminating and detailed discussion in this
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regard is to be found in Ankush Shivaji Gaikwad v. State of Maharashtra, 2013 (6)


SCALE 778. Following the view taken therein read with the provisions of Section 20 of
the Juvenile Justice (Care and Protection of Children) Act, 2000 the appropriate
course of action in the present case would be to remand the matter to the jurisdictional
Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of
Children) Act, 2000 for determining the appropriate quantum of fine that should be
levied on the appellant and the compensation that should be awarded to the family of
Asha Devi. Avoiding a recurrence:
47.

How can a situation such as the one that has arisen in this case (and in several others
in the past) be avoided? We need to only appreciate and understand a few provisions
of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the Act) and the
Model Rules framed by the Government of India called the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (the Rules).

48.

The preamble to the Act draws attention to the Convention on the Rights of the Child
which was ratified by the Government of India on 11th December 1992. The
Convention has prescribed, inter alia, a set of standards to be adhered to in securing
the best interests of the child. For the present purposes, it is not necessary to detail
those standards. However, keeping this in mind, several special procedures, over and
above or despite the Criminal Procedure Code (for short the Code) have been laid
down for the benefit of a juvenile or a child in conflict with law. These special
procedures are to be found both in the Act as well as in the Rules. Some (and only
some) of them are indicated below.

49.

A Juvenile Justice Board is constituted under Section 6 of the Act to deal exclusively
with all proceedings in respect of a juvenile in conflict with law. When a juvenile
charged with an offence is produced before a Juvenile Justice Board, it is required to
hold an inquiry (not a trial) and pass such orders as it deems fit in connection with the
juvenile (Section 14 of the Act).

50.

A juvenile or a child in conflict with law cannot be kept in jail but may be temporarily
received in an Observation Home during the pendency of any inquiry against him
(Section 8 of the Act). If the result of the inquiry is against him, the said juvenile may be
received for reception and rehabilitation in a Special Home(Section 9 of the Act). The
maximum period for reception and rehabilitation in a Special Home is three years
(Section 15 of the Act). Even this, in terms of Article 37 of the Convention on the Rights
of the Child, shall be a measure of last resort.

51.

The provision dealing with bail (Section 12 of the Act) places the burden for denying
bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on
bail, but he may not be so released if there appear reasonable grounds for believing
that the release is likely to bring him into association with any known criminal or
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expose him to moral, physical or psychological danger or that his release would defeat
the ends of justice.
52.

Orders that may be passed by a Juvenile Justice Board against a juvenile, if it is


satisfied that he has committed an offence, are mentioned in Section 15 of the Act.
One of the orders that may be passed, as mentioned above, is for his reception and
rehabilitation in a Special Home for a period of three years, as a measure of last resort.

53.

The Rules, particularly Rule 3, provide, inter alia, that in all decisions taken within the
context of administration of justice, the principle of best interests of a juvenile shall be
the primary consideration. What this means is that the traditional objectives of
criminal justice, that is retribution and repression, must give way to rehabilitative and
restorative objectives of juvenile justice. The right to privacy and confidentiality of a
juvenile is required to be protected by all means and through all the stages of the
proceedings, and this is one of the reasons why the identity of a juvenile in conflict with
law is not disclosed. Following the requirements of the Convention on the Rights of the
Child, Rule 3 provides that institutionalization of a child or a juvenile in conflict with law
shall be the last resort after a reasonable inquiry and that too for the minimum possible
duration. Rule 32 provides that:
The primary aim of rehabilitation and social reintegration is to help children in
restoring their dignity and self-worth and mainstream them through rehabilitation
within the family where possible, or otherwise through alternate care programmes and
long-term institutional care shall be of last resort.

54.

It is quite clear from the above that the purpose of the Act is to rehabilitate a juvenile in
conflict with law with a view to reintegrate him into society. This is by no means an easy
task and it is worth researching how successful the implementation of the Act has
been in its avowed purpose in this respect.

55.

As regards procedurally dealing with a juvenile in conflict with law, the Rules require
the concerned State Government to set up in every District a Special Juvenile Police
Unit to handle the cases of juveniles or children in terms of the provisions of the Act
(Rule 84). This Unit shall consist of a juvenile or child welfare officer of the rank of
Police Inspector having an aptitude and appropriate training and orientation to handle
such cases. He will be assisted by two paid social workers having experience of
working in the field of child welfare of which one of them shall be a woman.

56.

Rule 75 of the Rules requires that while dealing with a juvenile or a child, except at the
time of arrest, a police officer shall wear plain clothes and not his uniform.

57.

The Act and the Model Rules clearly constitute an independent code for issues
concerning a child or a juvenile, particularly a juvenile in conflict with law. This code is
intended to safeguard the rights of the child and a juvenile in conflict with law and to
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put him in a category separate and distinct from an adult accused of a crime.
58.

Keeping in mind all these standards and safeguards required to be met as per our
international obligations, it becomes obligatory for every Magistrate before whom an
accused is produced to ascertain, in the first instance or as soon thereafter as may be
possible, whether the accused person is an adult or a juvenile in conflict with law. The
reason for this, obviously, is to avoid a two-fold difficulty: first, to avoid a juvenile being
subjected to procedures under the normal criminal law and de hors the Act and the
Rules, and second, a resultant situation, where the trial of the juvenile is required to
be set aside and quashed as having been conducted by a court not having jurisdiction
to do so or a juvenile, on being found guilty, going 'unpunished'. This is necessary not
only in the best interests of the juvenile but also for the better administration of criminal
justice so that the Magistrate or the Sessions Judge (as the case may be) does not
waste his time and energy on a trial.

59.

It must be appreciated by every Magistrate that when an accused is produced before


him, it is possible that the prosecution or the investigating officer may be under a
mistaken impression that the accused is an adult. If the Magistrate has any iota of
doubt about the juvenility of an accused produced before him, Rule 12 provides that a
Magistrate may arrive at a prima facie conclusion on the juvenility, on the basis of his
physical appearance. In our opinion, in such a case, this prima facie opinion should be
recorded by the Magistrate. Thereafter, if custodial remand is necessary, the accused
may be sent to jail or a juvenile may be sent to an Observation Home, as the case may
be, and the Magistrate should simultaneously order an inquiry, if necessary, for
determining the age of the accused. Apart from anything else, it must be appreciated
that such an inquiry at the earliest possible time, would be in the best interests of the
juvenile, since he would be kept away from adult under-trial prisoners and would not
be subjected to a regimen in jail, which may not be conducive to his well being. As
mentioned above, it would also be in the interests of better administration of criminal
justice. It is, therefore, enjoined upon every Magistrate to take appropriate steps to
ascertain the juvenility or otherwise of an accused person brought before him or her at
the earliest possible point of time, preferably on first production.

60.

It must also be appreciated that due to his juvenility, a juvenile in conflict with law may
be presumed not to know or understand the legal procedures making it difficult for him
to put forth his claim for juvenility when he is produced before a Magistrate. Added to
this are the factors of poor education and poor economic set up that are jointly the
main attributes of a juvenile in conflict with law, making it difficult for him to negotiate
the legal procedures. We say this on the strength of studies conducted, and which
have been referred to by one of us (T.S. Thakur, J) in Abuzar Hossain v. State of West
Bengal, (2012) 10 SCC 489. It is worth repeating what has been said: Studies
- 101 -

conducted by National Crime Records Bureau (NCRB), Ministry of Home Affairs,


reveal that poor education and poor economic set up are generally the main attributes
of juvenile delinquents. Result of the 2011 study further show that out of 33,887
juveniles arrested in 2011, 55.8% were either illiterate (6,122) or educated only till the
primary level (12,803). Further, 56.7% of the total juveniles arrested fell into the lowest
income category. A similar study is conducted and published by B.N. Mishra in his
Book 'Juvenile Delinquency and Justice System', in which the author states as
follows: One of the prominent features of a delinquent is poor educational attainment.
More than 63 per cent of delinquents are illiterate. Poverty is the main cause of their
illiteracy. Due to poor economic condition they were compelled to enter into the labour
market to supplement their family income. It is also felt that poor educational
attainment is not due to the lack of intelligence but may be due to lack of opportunity.
61.

Such being the position, it is difficult to expect a juvenile in conflict with law to know his
rights upon apprehension by a police officer and if the precautions that have been
suggested are taken, the best interests of the child and thereby of society will be duly
served. Therefore, it may be presumed, by way of a benefit of doubt that because of
his status, a juvenile may not be able to raise a claim for juvenility in the first instance
and that is why it becomes the duty and responsibility of the Magistrate to look into this
aspect at the earliest point of time in the proceedings before him. We are of the view
that this may be a satisfactory way of avoiding the recurrence of a situation such as the
one dealt with.

62.

We may add that our international obligations as laid down in the Convention on the
Rights of the Child and the Beijing Rules require the involvement of the parents or
legal guardians in the legal process concerning a juvenile in conflict with law. For
example, a reference may be made to Article 40 of the Convention and Principles 7,
10 and 15 of the Beijing Rules. That this is not unusual is clear from the fact that in civil
disputes, our domestic law requires a minor to be represented by a guardian. The
remedy:

63.

In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 this Court laid down some
important requirements for being adhered to by the police in all cases of arrest or
detention till legal provisions are made in that behalf as preventive measures. The
Criminal Procedure Code has since been amended and some of the important
requirements laid down by this Court have been given statutory recognition. These
are equally applicable, mutatis mutandis, to a child or a juvenile in conflict with law.

64.

Attention may be drawn to Section 41-B of the Code which requires a police officer
making an arrest to prepare a memorandum of arrest which shall be attested by at
least one witness who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made. The police officer is also
- 102 -

mandated to inform the arrested person, if the memorandum of arrest is not attested
by a member of his family, that he has a right to have a relative or a friend named by
him to be informed of his arrest. Section 41-B of the Code reads as follows: 41-B.
Procedure of arrest and duties of officer making arrest. Every police officer while
making an arrest shall (a) bear an accurate, visible and clear identification of his name
which will facilitate easy identification; (b) prepare a memorandum of arrest which
shall be (i) attested by at least one witness, who is a member of the family of the
person arrested or a respectable member of the locality where the arrest is made; (ii)
countersigned by the person arrested; and (c) inform the person arrested, unless the
memorandum is attested by a member of his family, that he has a right to have a
relative or a friend named by him to be informed of his arrest.
65.

Every police officer making an arrest is also obliged to inform the arrested person of
his rights including the full particulars of the offence for which he has been arrested or
other grounds for such arrest (Section 50 of the Code), the right to a counsel of his
choice and the right that the police inform his friend, relative or such other person of
the arrest. Section 50-A of the Code is relevant in this regard and it reads as follows:
50-A. Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.

(1)

Every police officer or other person making any arrest under this Code shall forthwith
give the information regarding such arrest and place where the arrested person is
being held to any of his friends, relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information.

(2)

The police officer shall inform the arrested person of his rights under sub-section (1)
as soon as he is brought to the police station.

(3)

An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as maybe prescribed in this
behalf by the State Government.

(4)

It shall be the duty of the Magistrate before whom such arrested person is produced,
to satisfy himself that the requirements of sub-section (2) and subsection (3) have
been complied with in respect of such arrested person.

66.

When any person is arrested, it is obligatory for the arresting authority to ensure that
he is got examined by a medical officer in the service of the Central or the State
Government or by a registered medical practitioner. The medical officer or registered
medical practitioner is mandated to prepare a record of such examination including
any injury or mark of violence on the person arrested. Section 54 of the Code reads as
follows: 54. Examination of arrested person by medical officer.

(1)

When any person is arrested, he shall be examined by a medical officer in the service
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of Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female medical officer, and in case the
female medical officer is not available, by a female registered medical practitioner.
(2)

The medical officer or a registered medical practitioner so examining the arrested


person shall prepare the record of such examination, mentioning there in any injuries
or marks of violence upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.

(3)

Where an examination is made under sub-section(1), a copy of the report of such


examination shall be furnished by the medical officer or registered medical
practitioner, as the case may be, to the arrested person or the person nominated by
such arrested person.

67.

In our opinion, the procedures laid down in the Code, in as much as they are for the
benefit of a juvenile or a child, apply with full rigour to an apprehension made of a
juvenile in conflict with law under Section 10 of the Act. If these procedures are
followed, the probability of a juvenile, on apprehension, being shown as an adult and
sent to judicial custody in a jail, will be considerably minimized. If these procedures are
followed, as they should be, along with the requirement of a Magistrate to examine the
juvenility or otherwise of an accused person brought before him, subjecting a juvenile
in conflict with law to a trial by a regular Court may become a thing of the past.
Conclusion:

68.

The appellant was a juvenile on the date of the occurrence of the incident. His case
has been examined on merits and his conviction is upheld. The only possible and
realistic sentence that can be awarded to him is the imposition of a fine. The existing
fine of Rs.100/-is grossly inadequate. To this extent, the punishment awarded to the
appellant is set aside. The issue of the quantum of fine to be imposed on the appellant
is remitted to the jurisdictional Juvenile Justice Board. The jurisdictional Juvenile
Justice Board is also enjoined to examine the compensation to be awarded, if any, to
the family of Asha Devi in terms of the decision of this Court in Ankush Shivaji
Gaikwad.

69.

Keeping in mind our domestic law and our international obligations, it is directed that
the provisions of the Criminal Procedure Code relating to arrest and the provisions of
the Juvenile Justice (Care and Protection of Children) Act, 2000 being the law of the
land, should be scrupulously followed by the concerned authorities in respect of
juveniles in conflict with law.

70.

It is also directed that whenever an accused, who physically appears to be a juvenile,


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is produced before a Magistrate, he or she should form a prima facie opinion on the
juvenility of the accused and record it. If any doubt persists, the Magistrate should
conduct an age inquiry as required by Section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000 to determine the juvenility or otherwise of the
accused person. In this regard, it is better to err on the side of caution in the first
instance rather than have the entire proceedings reopened or vitiated at a subsequent
stage or a guilty person go unpunished only because he or she is found to be a juvenile
on the date of occurrence of the incident.
71.

Accordingly, the matter is remanded to the jurisdictional Juvenile Justice Board


constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 for
determining the appropriate quantum of fine that should be levied on the appellant and
the compensation that should be awarded to the family of Asha Devi. Of course, in
arriving at its conclusions, the said Board will take into consideration the facts of the
case as also the fact that the appellant has undergone some period of incarceration.

72.

The appeal is partly allowed with the directions given above.

...J.
(T.S. Thakur)
...J.
(Madan B. Lokur)
New Delhi; July 10, 2013

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REPORTABLE

IN THE SUPREME COURT OF INDIA


CIVIL/CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 10 OF 2013
SALIL BALI PETITIONER VS. UNION OF INDIA &
ANR. RESPONDENTS WITH
W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013 WITH
W.P.(CRL)NO.6 OF 2013 AND T.C.(C)No. 82 OF 2013
JUDGMENT
ALTAMAS KABIR, CJI.
1.

Seven Writ Petitions and one Transferred Case have been taken up together for
consideration in view of the commonality of the grounds and reliefs prayed for therein.
While in Writ Petition (C) No. 14 of 2013, Saurabh Prakash Vs. Union of India, and
Writ Petition (C) No. 90 of 2013, Vinay K. Sharma Vs. Union of India, a common
prayer has been made for declaration of the Juvenile Justice (Care and Protection of
Children) Act, 2000, as ultra vires the Constitution, in Writ Petition (C) No. 10 of 2013,
Salil Bali Vs. Union of India, Writ Petition (C) No. 85 of 2013, Krishna Deo Prasad Vs.
Union of India, Writ Petition (C) No. 42 of 2013, Kamal Kumar Pandey & Sukumar Vs.
Union of India and Writ Petition (C) No. 182 of 2013, Hema Sahu Vs. Union of India, a
common prayer has inter alia been made to strike down the provisions of Section 2(k)
and (l) of the above Act, along with a prayer to bring the said Act in conformity with the
provisions of the Constitution and to direct the Respondent No. 1 to take steps to
make changes in the Juvenile Justice (Care and Protection of Children) Act, 2000, to
bring it in line with the United Nations Standard Minimum Rules for administration of
juvenile justice. In addition to the above, in Writ Petition (Crl.) No. 6 of 2013, Shilpa
Arora Sharma Vs. Union of India, a prayer has inter alia been made to appoint a panel
of criminal psychologists to determine through clinical methods whether the juvenile is
involved in the Delhi gang rape on 16.12.2012. Yet, another relief which has been
prayed for in common during the oral submissions made on behalf of the Petitioners
was that in offence slike rape and murder, juveniles should be tried under the normal
law and not under the aforesaid Act and protection granted to persons up to the age of
18 years under the aforesaid Act may be removed and that thein vestigating agency
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should be permitted to keep the record of the juvenile offenders to take preventive
measures to enable them to detect repeat offenders and to bring them to justice.
Furthermore, prayers have also been made in Writ Petition (Crl.) No. 6 of 2013 and
Writ Petition (C) No. 85 of 2013, which are personal to the juvenile accused in the Delhi
gang rape case of 16.12.2012, not to release him and to keep him in custody or any
place of strict detention, after he was found to be a mentally abnormal psychic person
and that proper and detailed investigation beconducted by the CBI to ascertain his
correct age by examining his school documents and other records and to further
declare that prohibition in Section 21 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, be declared unconstitutional.
2.

In most of the matters, the Writ Petitioners appeared in-person, in support of their
individual cases.

3.

Writ Petition (C) No.10 of 2013, filed by Shri Salil Bali, was taken up as the first matter
in the bunch. The Petitioner appearing in-person urged that it was necessary for the
provisions of Section 2(k), 2(l) and 15 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, to be reconsidered in the light of the spurt in criminal offences
being committed by persons within the range of 16 to 18 years, such as the gang rape
of a young woman inside a moving vehicle on 16th December, 2012, wherein along
with others, a juvenile, who had attained the age of 17 years, was being tried
separately under the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000.

4.

Mr. Bali submitted that the age of responsibility, as accepted in India, is different from
what has been accepted by other countries of the world. But, Mr. Bali also pointed out
that even in the criminal jurisprudence prevalent in India, the age of responsibility of
understanding the consequences of one's actions had been recognized as 12 years
in the Indian Penal Code. Referring to Section 82 of the Code, Mr. Bali pointed out
that the same provides that nothing is an offence which is done by a child under seven
years of age. Mr. Bali also referred to Section 83 of the Code, which provides that
nothing is an offence which is done by a child above seven years of age and under
twelve, who has not attained ufficient maturity of understanding to judge the nature
and consequences of his conduct on a particular occasion. Mr. Bali, therefore, urged
that even under the Indian Criminal Jurisprudence the age of understanding has been
fixed at twelve years, which according to him, was commensurate with the thinking of
other countries, such as the United States of America, Great Britain and Canada.

5.

In regard to Canada, Mr. Bali referred to the Youth Criminal Justice Act, 2003, as
amended from time to time, where the age of criminal responsibility has been fixed at
twelve years. Referring to Section 13 of the Criminal Code of Canada, Mr. Bali
- 107 -

submitted that the same is in parry material with the provisions of Section 83 of the
Indian Penal Code. In fact, according to the Criminal Justice Delivery System in
Canada, a youth between the age of 14 to 17 years may be tried and sentenced as an
adult in certain situations. Mr. Bali also pointed out that even in Canada the Youth
Criminal Justice Act governs the application of criminal and correctional law to those
who are twelve years old or older, but younger than 18 at the time of committing the
offence, and that, although, trials were to take place in a Youth Court, for certain
offences and in certain circumstances, a youth may be awarded an adult sentence.
6.

Comparing the position in USA and the Juvenile Justice and Delinquency Prevention
Act, 1974, he urged that while in several States, no set standards have been
provided, reliance is placed on the common law age of seven in fixing the age of
criminal responsibility, the lowest being six years in North Carolina. The general
practice in the United States of America, however, is that even for such children, the
courts are entitled to impose life sentences in respect of certain types of offences,
but such life sentences without parole were not permitted for those under the age of
eighteen years convicted of murder or offences involving violent crimes and weapons
violations.

7.

In England and Wales, children accused of crimes are generally tried under the
Children and Young Persons Act, 1933, as amended by Section 16(1) of the Children
and Young Persons Act, 1963. Under the said laws, the minimum age of criminal
responsibility in England and Wales is ten years and those below the said age are
considered to be doli in capax and, thus, incapable of having any mens rea, which is
similar to the provisions of Sections 82 and 83 of Indian Penal Code.

8.

Mr. Bali has also referred to the legal circumstances prevailing in other parts of the
world wherein the age of criminal responsibility has been fixed between ten to sixteen
years. Mr. Bali contended that there was a general worldwide concern over the rising
graph of criminal activity of juveniles below the age of eighteen years, which has been
accepted worldwide to be the age limit under which all persons were to be treated as
children. Mr. Bali sought to make a distinction in regard to the definition of children as
such in Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children)
Act, 2000, and the level of maturity of the child who is capable of understanding the
consequences of his actions. He, accordingly, urged that the provisions of Sections 15
and 16 of the Act needed to be reconsidered and appropriate orders were required to
be passed in regard to the level of punishment in respect of heinous offences
committed by children below the age of eighteen years, such as murder, rape, dacoity,
etc. Mr. Bali submitted that allowing perpetrators of such crimes to get off with a
sentence of three years at the maximum, was not justified and a correctional course
- 108 -

was required to be undertaken in that regard.


9.

Mr. Saurabh Prakash, Petitioner in Writ Petition (C) No. 14 of 2013, also appeared in
person and, while endorsing the submissions made by Mr. Bali, went a step further in
suggesting that in view of the provisions of Sections 15 and 16 of the Juvenile Justice
(Care and Protection of Children) Act, 2000, children, as defined in the above Act,
were not only taking advantage of the same, but were also being used by criminals for
their own ends. The Petitioner reiterated Mr. Bali's submission that after being
awarded a maximum sentence of three years, a juvenile convicted of heinous
offences, was almost likely to become a monster in society and pose a great danger to
others, in view of his criminal propensities. Although, in the prayers to the Writ Petition,
one of the reliefs prayed for was for quashing the provisions of the entire Act, Mr.
Saurabh Prakash ultimately urged that some of the provisions thereof were such as
could be segregated and struck down so as to preserve the Act as a whole. The
Petitioner urged that, under Article 21 of the Constitution, every citizen has a
fundamental right to live in dignity and peace, without being subjected to violence by
other members of society and that by shielding juveniles, who were fully capable of
understanding the consequences of their actions, from the sentences, as could be
awarded under the Indian Penal Code, as far as adults are concerned, the State was
creating a class of citizens who were not only prone to criminal activity, but in whose
cases restoration or rehabilitation was not possible. Mr. Saurabh Prakash submitted
that the provisions of Sections 15 and 16 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, violated the rights guaranteed to a citizen under Article 21 of the
Constitution and were, therefore, liable to be struck down.

10.

Mr. Saurabh Prakash also submitted that the provisions of Section 19 of the Act, which
provided for removal of disqualification attaching to conviction, were also illogical and
were liable to be struck down. It was submitted that in order to prevent repeated
offences by an individual, it was necessary to maintain the records of the inquiry
conducted by the Juvenile Justice Board, in relation to juveniles so that such records
would enable the authorities concerned to assess the criminal propensity of an
individual, which would call for a different approach to be taken at the time of inquiry.
Mr. Saurabh Prakash urged this Court to give a direction to the effect that the Juvenile
Justice Board or courts or other high public authorities would have the discretion to
direct that in a particular case, the provisions of the general law would apply to a
juvenile and not those of the Act.

11.

Mr. Vivek Narayan Sharma, learned Advocate, appeared for the petitioner in Writ
Petition (Crl.) No. 6 of 2013, filed by one Shilpa Arora Sharma, and submitted that the
Juvenile Justice Board should be vested with the discretion to impose punishment
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beyond three years, as limited by Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, in cases where a child, having full knowledge of the
consequences of his/her actions, commits a heinous offence punishable either with
life imprisonment or death. Mr. Sharma submitted that such a child did not deserve to
be treated as a child and be allowed to re-mingle in society, particularly when the
identity of the child is to be kept a secret under Sections 19 and 21 of the Juvenile
Justice (Care and Protection of Children) Act, 2000. Mr. Sharma submitted that in
many cases children between the ages of sixteen to eighteen years were, in fact,
being exploited by adults to commit heinous offences who knew full well that the
punishment therefore would not exceed three years.
12.

Mr. Sharma urged that without disturbing the other beneficent provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000, some of the gray areas
pointed out could be addressed in such a manner as would make the Juvenile Justice
(Care and Protection of Children) Act, 2000, more effective and prevent the misuse
thereof.

13.

In Writ Petition (C) No. 85 of 2013, filed by Krishna Deo Prasad, Dr. R.R. Kishor
appeared for the Petitioner and gave a detailed account of the manner in which the
Juvenile Justice Delivery System had evolved. Referring to the doctrine of doli
incapax, rebuttable presumption and adult of fourteen years were treated differently
from children between the ages of fourteen to eighteen, for the purposes of
employment in hazardous industries. Dr. Kishor re-asserted the submissions made
by Mr. Bali and Mr. Saurabh Prakash, in regard to heinous crimes committed by
children below the age of eighteen years, who were capable of understanding the
consequences of their acts.

15.

Dr. Kishor also referred to the provisions of Sections 82 and 83 of the Indian Penal
Code, where the age of responsibility and comprehension has been fixed at twelve
years and below. Learned counsel submitted that having regard to the abovementioned provisions, it would have to be seriously considered as to whether the
definition of a child in the Juvenile Justice (Care and Protection of Children) Act, 2000,
required reconsideration. He urged that because a person under the age of 18 years
was considered to be a child, despite his or her propensity to commit criminal
offences, which are of a heinous and even gruesome nature, such as offences
punishable under Sections 376, 307, 302, 392, 396, 397 and 398 IPC, the said
provisions have been misused and exploited by criminals and people having their
own scores to settle. Dr. Kishor urged that the definition of a juvenile or a child or a
juvenile in conflict with law, in Sections 2(k) and 2(l) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, was liable to be struck down and replaced with a
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more meaningful definition, which would exclude such juveniles.


16.

Mr. Vikram Mahajan, learned Senior Advocate appearing for the Petitioner, Vinay K.
Sharma, in Writ Petition (C) No. 90 of 2013, urged that the right given to a citizen of
India under Article 21 of the Constitution is impinged upon by the Juvenile Justice
(Care and Protection of Children) Act, 2000. Mr. Mahajan urged that the Juvenile
Justice (Care and Protection of Children) Act, 2000, operates in violation of Articles 14
and 21 of the Constitution and that Article 13(2), which relates to post Constitution
laws, prohibits the State from making a law which either takes away totally or
abrogates in part a fundamental right. Referring to the United Nations Declaration on
the Elimination of Violence against Women, adopted by the General Assembly on 20th
December, 1993, Mr. Mahajan pointed out that Article 1 of the Convention describes
violence against women to mean any act of gender-based violence that results in, or
is likely to result in, physical, sexual or psychological harm or suffering to women.
Referring to the alleged gang rape of a 23 year old para-medical student, in a moving
bus, in Delhi, on 16th December, 2012, Mr. Mahajan tried to indicate that crimes
committed by juveniles had reached large and serious proportions and that there was
a need to amend the law to ensure that such persons were not given the benefit of
lenient punishment, as contemplated under Section 15 of the Juvenile Justice (Care
and Protection of Children) Act, 2000. From the figures cited by him, he urged that
even going by statistics, 1% of the total number of crimes committed in the country
would amount to a large number and the remedy to such a problem would lie in the
Probation of Offenders Act, 1958, which made the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000, redundant and ultra vires Article 21 of the
Constitution.

17.

Ms. Shweta Kapoor appeared in Transferred Case No. 82 of 2013 in-person and
questioned the vires of Sections 16(1), 19(1), 49(2) and 52(2)(a) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, and submitted that they were
liable to be declared as ultra vires the Constitution. Referring to Section 16 of the
aforesaid Act, Ms. Kapoor submitted that even in the proviso to Subsection (1) of
Section 16, Parliament had recognized the distinction between a juvenile, who had
attained the age of sixteen years, but had committed an offence which was so serious
in nature that it would not be in his interest or in the interest of other juveniles in a
special home, to send him to such special home. Considering that none of the other
measures provided under the Act was suitable or sufficient, the Government had
empowered the Board to pass an order for the juvenile to be kept in such place of
safety and in such manner as it thought fit. Ms. Kapoor submitted that no objection
could be taken to the said provision except for the fact that in the proviso to Section
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16(2), it has been added that the period of detention order would not exceed, in any
case, the maximum limit of punishment, as provided under Section 15, which is three
years.
18.

Ms. Kapoor contended that while the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, are generally meant for the benefit of the juvenile
offenders, a serious attempt would have to be made to grade the nature of offences to
suit the reformation contemplated by the Act.

19.

As part of her submissions, Ms. Kapoor referred to the decision of this Court in Avishek
Goenka Vs. Union of India [(2012) 5 SCC 321], wherein the pasting of black films on
glass panes were banned by this Court on account of the fact that partially opaque
glass panes on vehicles acted as facilitators of crime. Ms. Kapoor urged that in the
opening paragraph of the judgment, it has been observed that Alarming rise in
heinous crimes like kidnapping, sexual assault on women and dacoity have impinged
upon the right to life and the right to live in a safe environment which are within the
contours of Article 21 of the Constitution of India. Ms. Kapoor also referred to another
decision of this Court in Abuzar Hossain Vs. State of West Bengal [(2012) 10 SCC
489], which dealt with a different question regarding the provisions of Section 7A of the
Juvenile Justice (Care and Protection of Children) Act, 2000, and the right of an
accused to raise the claim of juvenility at any stage of the proceedings and even after
the final disposal of the case.

20.

In conclusion, Ms. Kapoor reiterated her stand that in certain cases the definition of a
juvenile in Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, would have to be considered differently.

21.

The next matter which engaged our attention is Writ Petition (Civil) No.90 of 2013 filed
by one Vinay Kumar Sharma, praying for a declaration that the Juvenile Justice (Care
and Protection of Children) Act, 2000, be declared ultra vires the Constitution and that
children should also be tried along with adults under the penal laws applicable to
adults.

22.

Writ Petition (Civil) No.42 of 2013 has been filed by Kamal Kumar Pandey and
Sukumar, Advocates, inter alia, for an appropriate writ or direction declaring the
provisions of Sections 2(1), 10 and 17 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, to be irrational, arbitrary, without reasonable nexus and thereby
ultra vires and unconstitutional, and for a Writ of Mandamus commanding the Ministry
of Home Affairs and the Ministry of Law and Justice, Government of India, to take
steps that the aforesaid Act operates in conformity with the Constitution. In addition, a
prayer was made to declare the provisions of Sections 15 and 19 of the above Act ultra
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vires the Constitution.


23.

The main thrust of the argument advanced by Mr. Pandey, who appeared in person,
was the inter-play between International Conventions and Rules, such as the Beijing
Rules, 1985, the U.N. Convention on the Rights of the Child, 1989, and the Juvenile
Justice (Care and Protection of Children) Act, 2000. While admitting the salubirous
and benevolent and progressive character of the legislation in dealing with children in
need of care and protection and with children in conflict with law, Mr. Pandey
contended that a distinction was required to be made in respect of children with a
propensity to commit heinous crimes which were a threat to a peaceful social order.
Mr. Pandey reiterated the submissions made earlier that it was unconstitutional to
place all juveniles, irrespective of the gravity of the offences, in one bracket. Urging
that Section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000,
ought not to have placed all children in conflict with law within the same bracket, Mr.
Pandey submitted that the same is ultra vires Article 21 of the Constitution. Referring
to the report of the National Crime Records Bureau (NCRB) for the years 2001 to 2011,
Mr. Pandey submitted that between 2001 and 2011, the involvement of juveniles in
cognizable crimes was on the rise. Mr. Pandey urged that it was a well-established
medical-psychological fact that the level of understanding of a 16 year-old was at par
with that of adults.

24.

Mr. Pandey's next volley was directed towards Section 19 of the Juvenile Justice (Care
and Protection of Children) Act, 2000, which provides for the removal of any
disqualification attached to an offence of any nature. Mr. Pandey submitted that the
said provisions do not take into account the fact relating to repeated offences being
perpetrated by a juvenile whose records of previous offences are removed. Mr.
Pandey contended that Section 19 of the Act was required to be amended to enable
the concerned authorities to retain records of previous offences committed by a
juvenile for the purposes of identification of a juvenile with a propensity to repeatedly
commit offences of a grievous or heinous nature.

25.

Mr. Pandey submitted that Parliament had exceeded its mandate by blindly adopting
eighteen as the upper limit in categorising a juvenile or a child, in accordance with the
Beijing Rules, 1985, and the U.N. Convention, 1989, without taking into account the
socio-cultural economic conditions and the legal system for administration of criminal
justice in India. Mr. Pandey urged that the Juvenile Justice (Care and Protection of
Children) Act, 2000, was required to operate in conformity with the provisions of the
Constitution of India.

26.

Ms. Hema Sahu, the petitioner in Writ Petition (Civil) No. 182 of 2013, also appeared in
person and restated the views expressed by the other petitioners that the United
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Nations Standard Minimum Rules for the Administration of Juvenile Justice,


commonly known as the Beijing Rules, recognized and noted the difference in the
nature of offences committed by juveniles in conflict with law. Referring to the decision
of this Court in the case commonly known as the Bombay Blasts Case, Ms. Sahu
submitted that a juvenile who was tried and convicted along with adults under the
Terrorist and Disruptive Activities Act (TADA), was denied the protection of the
Juvenile Justice (Care and Protection of Children) Act, 2000, on account of the serious
nature of the offence. Ms. Sahu ended on the note that paragraph 4 of the 1989
Convention did not make any reference to age.
27.

Appearing for the Union of India, the Additional Solicitor General, Mr. Siddharth
Luthra, strongly opposed the submissions made on behalf of the Petitioners to either
declare the entire Juvenile Justice (Care and Protection of Children) Act, 2000, as
ultra vires the Constitution or parts thereof, such as Sections 2(k), 2(l), 15, 16, 17, 19
and 21. After referring to the aforesaid provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, the learned ASG submitted that Parliament
consciously fixed eighteen years as the upper age limit for treating persons as
juveniles and children, taking into consideration the general trend of legislation, not
only internationally, but within the country as well.

28.

The learned ASG submitted that the Juvenile Justice (Care and Protection of Children)
Act, 2000, was enacted after years of deliberation and in conformity with international
standards as laid down in the U.N. Convention on the Rights of the Child, 1989, the
Beijing Rules, 1985, the Havana Rules and other international instruments for
securing the best interests of the child with the primary object of social reintegration of
child victims and children in conflict with law, without resorting to conventional judicial
proceedings which existed for adult criminals. In the course of his submissions, the
learned ASG submitted a chart of the various Indian statutes and the manner in which
children have been excluded from liability under the said Acts upto the age of 18 years.
In most of the said enactments, a juvenile/child has been referred to a person who is
below 18 years of age. The learned ASG submitted that in pursuance of international
obligations, the Union of India after due deliberation had taken a conscious policy
decision to fix the age of a child/juvenile at the upper limit of 18 years. The learned
ASG urged that the fixing of the age when a child ceases to be a child at 18 years is a
matter of policy which could not be questioned in a court of law, unless the same could
be shown to have violated any of the fundamental rights, and in particular Articles 14
and 21 of the Constitution. Referring to the decision of this Court in BALCO
Employees Union Vs. Union of India [(2002) 2 SCC 333], the learned ASG submitted
that at paragraph 46 of the said judgment it had been observed that it is neither within
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the domain of the Courts nor the scope of judicial review to embark upon an enquiry as
to whether a particular public policy was wise or whether something better could be
evolved. It was further observed that the Courts were reluctant to strike down a policy
at the behest of a Petitioner merely because it has been urged that a different policy
would have been fairer or wiser or more scientific or more logical. The learned ASG
further urged that Article 15(3) of the Constitution empowers the State to enact special
provisions for women and children, which reveals that the Juvenile Justice (Care and
Protection of Children) Act, 2000, was in conformity with the provisions of the
Constitution.
29.

The learned ASG submitted that in various judgments, this Court and the High Courts
had recognised the fact that juveniles were required to be treated differently from
adults so as to give such children, who for some reason had gone astray, an
opportunity to realize their mistakes and to rehabilitate themselves and rebuild their
lives. Special mention was made with regard to the decision of this Court in Abuzar
Hossain (supra) in this regard. The learned ASG also referred to the decision of this
Court in State of Tamil Nadu Vs. K. Shyam Sunder [(2011) 8 SCC 737], wherein it had
been observed that merely because the law causes hardships or sometimes results in
adverse consequences, it cannot be held to be ultra vires the Constitution, nor can it
be struck down. The learned ASG also submitted that it was now well-settled that
reasonable classification is permissible so long as such classification has a rational
nexus with the object sought to be achieved. This Court has always held that the
presumption is always in favour of the constitutionality of an enactment, since it has to
be assumed that the legislature understands and correctly appreciates the needs of
its own people and its discriminations are based on adequate grounds.

30.

Referring to the Reports of the National Crime Reports Bureau, learned ASG pointed
out that the percentage of increase in the number of offences committed by juveniles
was almost negligible and the general public perception in such matters was entirely
erroneous. In fact, the learned ASG pointed out that even the Committee appointed to
review the amendments to the criminal law, headed by former CJI, J.S. Verma, in its
report submitted on 23rd January, 2013, did not recommend the reduction in the age
of juveniles in conflict with law and has maintained it at 18 years. The learned ASG
pointed out that the issue of reduction in the age of juveniles from 18 to 16 years, as it
was in the Juveniles Justice Act of 1986, was also raised in the Lok Sabha on 19th
March, 2013, during the discussion on the Criminal Law (Amendment) Bill, 2013, but
was rejected by the House.

31.

The learned ASG submitted that the occurrence of 16th December, 2012, involving the
alleged gang rape of a 23 year old girl, should not be allowed to colour the decision
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taken to treat all persons below the age of 18 years, as children.


32.

Mr. Anant Asthana, learned Advocate appearing for HAQ : Centre for Child Rights,
submitted that the Juvenile Justice (Care and Protection of Children) Act, 2000, as
amended in 2006 and 2011, is a fairly progressive legislation, largely compliant
with the Constitution of India and the minimum standards contained in the Beijing
Rules. Mr. Asthana contended that the reason for incidents such as the 16th
December, 2012, incident, was not on account of the provisions of the aforesaid
Act, but on account of failure of the administration in implementing its provisions.
Learned counsel submitted that all the Writ Petitions appeared to be based on two
assumptions, namely, (i) that the age of 18 years for juveniles is set arbitrarily; and
(ii) that by reducing the age for the purpose of defining a child in the aforesaid Act,
criminality amongst children would reduce. Mr. Asthana submitted that such an
approach was flawed as it had been incorrectly submitted that the age of 18 years
to treat persons as children was set arbitrarily and that it is so difficult to
comprehend the causes and the environment which brings children into
delinquency. Mr. Asthana submitted that the answer lies in effective and sincere
implementation of the different laws aimed at improving the conditions of children in
need of care and protection and providing such protection to children at risk. Mr.
Asthana urged that the objective with which the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted was not aimed at delivering
retributive justice, but to allow a rehabilitative, reformation-oriented approach in
addressing juvenile crimes. Learned counsel submitted that the apathy of the
administration towards juveniles and the manner in which they are treated would
be evident from the fact that by falsifying the age of juveniles, they were treated as
adults and sent to jails, instead of being produced before the Juvenile Justice
Board or even before the Child Welfare Committees to be dealt with in a manner
provided by the Juvenile Justice (Care and Protection of Children) Act, 2000, for the
treatment of juveniles.

33.

Mr. Asthana submitted that even as recently as 26th April, 2013, the Government of
India has adopted a new National Policy for Children, which not only recognises
that a child is any person below the age of eighteen years, but also states that the
policy was to guide and inform people of laws, policies, plans and programmes
affecting children. Mr. Asthana urged that all actions and initiatives of the national,
State and local Governments in all sectors must respect and uphold the principles
and provisions of this policy and it would neither be appropriate nor possible for the
Union of India to adopt a different approach in the matter. Mr. Asthana, who
appears to have made an in-depth study of the matter, submitted that on the
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question of making the provisions in the Juvenile Justice (Care and Protection of
Children) Act, 2000, conform to the provisions of the Constitution and to allow the
children of a specific age group to be treated as adults, it would be appropriate to take
note of General Comment No.10 made by the U.N. Committee on the rights of the
child on 25th April, 2007, which specifically dealt with the upper age limit for juveniles
and it was reiterated that where it was a case of a child being in need of care and
protection or in conflict with law, every person under the age of 18 years at the time of
commission of the alleged offence must be treated in accordance with the Juvenile
Justice Rules. Mr. Asthana submitted that any attempt to alter the upper limit of the age
of a child from 18 to 16 years would have disastrous consequences and would set
back the attempts made over the years to formulate a restorative and rehabilitative
approach mainly for juveniles in conflict with law.
34.

In Writ Petition (Civil) No.85 of 2013, a counter affidavit has been filed on behalf of the
Ministry of Women and Child Development, Government of India, in which the
submissions made by the ASG, Mr. Siddharth Luthra, were duly reflected. In
paragraph I of the said affidavit, it has been pointed out that the Juvenile Justice (Care
and Protection of Children) Act, 2000, provides for a wide range of reformative
measures under Sections 15 and 16 for children in conflict with law from simple
warning to 3 years of institutionalisation in a Special Home. In exceptional cases,
provision has also been made for the juvenile to be sent to a place of safety where
intensive rehabilitation measures, such as counselling, psychiatric evaluation and
treatment would be undertaken.

35.

In Writ Petition (C) No.10 of 2013 filed by Shri Salil Bali, an application had been made
by 41 the Prayas Juvenile Aid Centre (JAC), a Society whose Founder and General
Secretary, Shri Amod Kanth, was allowed to appear and address the Court in person.
Mr. Amod Kanth claimed that he was a former member of the Indian Police Service
and Chairperson of the Delhi Commission for the Protection of Child Rights and was
also the founder General Secretary of the aforesaid organisation, which came into
existence in 1998 as a special unit associated with the Missing Persons Squad of the
Crime and Railway Branch of the Delhi Police of which Shri Amod Kanth was the incharge Deputy Commissioner of Police. Mr. Amod Kanth submitted that Prayas was
created in order to identify and support the missing and found persons, including girls,
street migrants, homeless, working and delinquent children who did not have any
support from any organisation in the Government or in the non-governmental
organisation sector.

36.

Mr. Kanth repeated and reiterated the submissions made by the learned ASG and Mr.
Asthana and also highlighted the problems faced by children both in conflict with law
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and in need of care and protection. Mr. Kanth submitted that whatever was required to
be done for the rehabilitation and restoration of juveniles to a normal existence has, to
a large extent, been defeated since the various provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000 and the Rules of 2007, were not being
seriously implemented. Mr. Kanth urged that after the ratification by India of the United
Nations Convention on the Rights of the Child on 11th December, 1992, serious
thought was given to the enactment of the Juvenile Justice (Care and Protection of
Children Act), 2000, which came to replace the Juvenile Justice Act, 1986. Taking a
leaf out of Mr. Asthana's book, Mr. Kanth submitted that even after thirteen years of its
existence, the provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000, still remained unimplemented in major areas, which made it impossible for the
provisions of the Act to be properly coordinated. Mr. Kanth submitted that one of the
more important features of juvenile law was to provide a child-friendly approach in the
adjudication and disposition of matters in the best interest of children and for their
ultimate rehabilitation through various institutions established under the Act.
Submitting that the Juvenile Justice (Care and Protection of Children) Act, 2000, was
based on the provisions of the Indian Constitution, the United Nations Convention on
the Rights of the Child, 1989, the Beijing Rules and the United Nations Rules for the
Protection of the Juveniles Deprived of their Liberty, 1990, Mr. Kanth urged that the
same was in perfect harmony with the provisions of the Constitution, but did not
receive the attention it ought to have received while dealing with a section of the
citizens of India comprising 42% of the country's population.
37.

Various measures to deal with juveniles in conflict with law have been suggested by
Mr. Kanth, which requires serious thought and avoidance of knee-jerk reactions to
situations which could set a dangerous trend and affect millions of children in need of
care and protection. Mr. Kanth submitted that any change in the law, as it now stands,
resulting in the reduction of age to define a juvenile, will not only prove to be
regressive, but would also adversely affect India's image as a champion of human
rights.

38.

Having regard to the serious nature of the issues raised before us, we have given
serious thought to the submissions advanced on behalf of the respective parties and
also those advanced on behalf of certain Non-Government Organizations and have
also considered the relevant extracts from the Report of Justice J.S. Verma
Committee on Amendments to the Criminal Law and are convinced that the Juvenile
Justice (Care and Protection of Children) Act, 2000, as amended in 2006, and the
Juvenile Justice (Care and Protection of Children) Rules, 2007, are based on sound
principles recognized internationally and contained in the provisions of the Indian
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Constitution.
39.

There is little doubt that the incident, which occurred on the night of 16th December,
2012, was not only gruesome, but almost maniacal in its content, wherein one
juvenile, whose role is yet to be established, was involved, but such an incident, in
comparison to the vast number of crimes occurring in India, makes it an aberration
rather than the Rule. If what has come out from the reports of the Crimes Record
Bureau, is true, then the number of crimes committed by juveniles comes to about 2%
of the country's crime rate.

40.

The learned ASG along with Mr. Asthana and Mr. Kanth, took us through the history of
the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, and
the Rules subsequently framed there under in 2007. There is a definite thought
process, which went into the enactment of the aforesaid Act. In order to appreciate the
submissions made on behalf of the respective parties in regard to the enactment of
the aforesaid Act and the Rules, it may be appropriate to explore the background of
the laws relating to child protection in India and in the rest of the world.

41.

It cannot be questioned that children are amongst the most vulnerable sections in any
society. They represent almost one-third of the world's population, and unless they are
provided with proper opportunities, the opportunity of making them grow into
responsible citizens of tomorrow will slip out of the hands of the present generation.
International community has been alive to the problem for a long time. After the
aftermath of the First World War, the League of Nations issued the Geneva
Declaration of the Rights of the Child in 1924. Following the gross abuse and violence
of human rights during the Second World War, which caused the death of millions of
people, including children, the United Nations had been formed in 1945 and on 10th
December, 1948 adopted and proclaimed the Universal Declaration of Human Rights.
While Articles 1 and 7 of the Declaration proclaimed that all human beings are born
free and equal in dignity and rights and are equal before the law, Article 25 of the
Declaration specifically provides that motherhood and childhood would be entitled to
special care and assistance. The growing consciousness of the world community was
further evidenced by the Declaration of the Rights of the Child, which came to be
proclaimed by the United Nations on 20th November, 1959, in the best interests of the
child. This was followed by the Beijing Rules of 1985, the Riyadh Guidelines of 1990,
which specially provided guidelines for the prevention of juvenile delinquency, and the
Havana Rules of 14th December, 1990. The said three sets of Rules intended that
social policies should be evolved and applied to prevent juvenile delinquency, to
establish a Juvenile Justice System for juveniles in conflict with law, to safeguard
fundamental rights and to establish methods for social re-integration of young people
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who had suffered incarceration in prison or other corrective institutions. One of the
other principles which was sought to be reiterated and adopted was that a juvenile
should be dealt with for an offence in a manner which is different from an adult. The
Beijing Rules indicated that efforts should be made by member countries to establish
within their own national jurisdiction, a set of laws and rules specially applicable to
juvenile offenders. It was stated that the age of criminal responsibility in legal systems
that recognize the concept of the age of criminal responsibility for juveniles should not
be fixed at too low an age-level, keeping in mind the emotional, mental and intellectual
maturity of children.
42.

Four years after the adoption of the Beijing Rules, the United Nations adopted the
Convention on the Rights of the Child vide the Resolution of the General Assembly
No. 44/25 dated 20th November, 1989, which came into force on 2nd September,
1990. India is not only a signatory to the said Convention, but has also ratified the
same on 11th December, 1992. The said Convention sowed the seeds of the
enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, by the
Indian Parliament.

43.

India developed its own jurisprudence relating to children and the recognition of their
rights. With the adoption of the Constitution on 26th November 1949, constitutional
safeguards, as far as weaker sections of the society, including children, were provided
for. The Constitution has guaranteed several rights to children, such as equality
before the law, free and compulsory primary education to children between the age
group of six to fourteen years, prohibition of trafficking and forced labour of children
and prohibition of employment of children below the age of fourteen years in factories,
mines or hazardous occupations. The Constitution enables the State Governments to
make special provisions for children. To prevent female foeticide, the Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted
in 1994. One of the latest enactments by Parliament is the Protection of Children from
Sexual Offences Act, 2012.

44.

The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the
provisions of the Constitution and the various Declarations and Conventions adopted
by the world community represented by the United Nations. The basis of fixing of the
age till when a person could be treated as a child at eighteen years in the Juvenile
Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of
the Rights of the Child, as was brought to our notice during the hearing. Of course, it
has been submitted by Dr. Kishor that the description in Article 1 of the Convention
was a contradiction in terms. While generally treating eighteen to be the age till which
a person could be treated to be a child, it also indicates that the same was variable
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where national laws recognize the age of majority earlier. In this regard, one of the
other considerations which weighed with the legislation in fixing the age of
understanding at eighteen years is on account of the scientific data that indicates that
the brain continues to develop and the growth of a child continues till he reaches at
least the age of eighteen years and that it is at that point of time that he can be held fully
responsible for his actions. Along with physical growth, mental growth is equally
important, in assessing the maturity of a person below the age of eighteen years. In
this connection, reference may be made to the chart provided by Mr. Kanth, wherein
the various laws relating to children generally recognize eighteen years to be the age
for reckoning a person as a juvenile/ child including criminal offences.
45.

In any event, in the absence of any proper data, it would not be wise on our part to
deviate from the provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2000, which represent the collective wisdom of Parliament. It may not be out of
place to mention that in the Juvenile Justice Act, 1986, male children above the age of
sixteen years were considered to be adults, whereas girl children were treated as
adults on attaining the age of eighteen years. In the Juvenile Justice (Care and
Protection of Children) Act, 2000, a conscious decision was taken by Parliament to
raise the age of male juveniles/children to eighteen years.

46.

In recent years, there has been a spurt in criminal activities by adults, but not so by
juveniles, as the materials produced before us show. The age limit which was raised
from sixteen to eighteen years in the Juvenile Justice (Care and Protection of
Children) Act, 2000, is a decision which was taken by the Government, which is
strongly in favour of retaining Sections 2(k) and 2(l) in the manner in which it exists in
the Statute Book.

47.

One misunderstanding of the law relating to the sentencing of juveniles, needs to be


corrected. The general understanding of a sentence that can be awarded to a juvenile
under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act,
2000, prior to its amendment in 2006, is that after attaining the age of eighteen years, a
juvenile who is found guilty of a heinous offence is allowed to go free. Section 15(1)(g),
as it stood before the amendment came into effect from 22nd August, 2006, reads as
follows: 15(1)(g) make an order directing the juvenile to be sent to a special home for
a period of three years:
(i)

in case of juvenile, over seventeen years but less than eighteen years of age,
for a period of not less than two years;

(ii)

in case of any other juvenile for the period until he ceases to be a juvenile:
Provided that the Board may, if it is satisfied that having regard to the nature of
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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. It was generally perceived that a juvenile was free to go, even if he had
committed a heinous crime, when he ceased to be a juvenile. The said
understanding needs to be clarified on account of the amendment which
came into force with effect from 22.8.2006, as a result whereof Section
15(1)(g) now reads as follows: 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. The aforesaid
amendment now makes it clear that even if a juvenile attains the age of
eighteen years within a period of one year he would still have to undergo a
sentence of three years, which could spill beyond the period of one year when
he attained majority.
48.

There is yet another consideration which appears to have weighed with the worldwide
community, including India, to retain eighteen as the upper limit to which persons
could be treated as children. In the Bill brought in Parliament for enactment of the
Juvenile Justice (Care and Protection of Children) Act of 2000, it has been indicated
that the same was being introduced to provide for the care, protection, treatment,
development and rehabilitation of neglected or delinquent juveniles and for the
adjudication of certain matters relating to and disposition of delinquent juveniles. The
essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the
Rules framed there under in 2007, is restorative and not retributive, providing for
rehabilitation and re-integration of children in conflict with law into mainstream society.
The age of eighteen has been fixed on account of the understanding of experts in child
psychology and behavioural patterns that till such an age the children in conflict with
law could still be redeemed and restored to mainstream society, instead of becoming
hardened criminals in future. There are, of course, exceptions where a child in the age
group of sixteen to eighteen may have developed criminal propensities, which would
make it virtually impossible for him/her to be reintegrated into mainstream society, but
such examples are not of such proportions as to warrant any change in thinking, since
it is probably better to try and re-integrate children with criminal propensities into
mainstream society, rather than to allow them to develop into hardened criminals,
which does not augur well for the future.

49.

This being the understanding of the Government behind the enactment of the Juvenile
Justice (Care and Protection of Children) Act, 2000, and the amendments effected
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thereto in 2006, together with the Rules framed thereunder in 2007, and the data
available with regard to the commission of heinous offences by children, within the
meaning of Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, we do not think that any interference is necessary with the
provisions of the Statute till such time as sufficient data is available to warrant any
change in the provisions of the aforesaid Act and the Rules. On the other hand, the
implementation of the various enactments relating to children, would possibly yield
better results.
50.

The Writ Petitions and the Transferred Case are, therefore, dismissed, with the
aforesaid observations. There shall, however, be no order as to costs.

CJI.
(ALTAMAS KABIR)
J.
(SURINDER SINGH NIJJAR)

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Bombay High Court


Indian Inhabitants vs Unknown on 16 September, 2009
Bench : Dr. D.Y. Chandrachud
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
INDIAN ADOPTION PETITION NO.31 OF 2009
WITH
JUDGE'S ORDER NO.298 OF 2009
In the matter of adoption of Payal @ Sharinee Vinay Pathak
Vinay Pathak and his wife Sonika Sahay @ Pathak
Both residents of Mumbai, Hindu Indian Inhabitants, having permanent
address at 1402, A Wing, Garden Estate,Laxmi Nagar, Goregaon Link
Road, Goregaon (West), Mumbai 400 064. ..Petitioners.....
Mr. Vishal Kanade with Mr. Tanmaya Nirmal i/b Mahimtura and
Company for the Petitioners.
Mr. O. Harindran, representative of ICSW present.
CORAM : DR. D.Y. CHANDRACHUD, J.
16th September, 2009.
JUDGMENT :
The Issue
1.

The Petition before the Court raises an issue of the interpretation of the Hindu
Adoptions and Maintenance Act, 1956 and the Juvenile Justice (Care and Protection
of Children) Act, 2000. The Hindu Adoptions and Maintenance Act, 1956 amends and
codifies the law relating to adoptions and maintenance among Hindus and specifies
conditions for valid adoption. One of them is that if the adoption is of a daughter, the
father or mother who wish to adopt the child must not have a Hindu daughter (or a
son's daughter) living at the time of adoption. Parliament enacted the Juvenile Justice
(Care and Protection of Children) Act, 2000 to regulate the interface of the law with
children in conflict with the law and to provide for the rehabilitation and social
integration of orphaned, abandoned or surrendered children. Adoption is one of the
techniques recognized by Parliament to facilitate the object of rehabilitation. The
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Juvenile Justice Act does not incorporate a restrictive condition foreclosing the right of
parents who have a child to adopt another child of the same gender. The Act
recognises the right of parents to adopt children irrespective of the number of living
biological sons or daughters.
2.

The issue which arises before the Court is as to whether a Hindu couple governed by
the Hindu Adoptions and Maintenance Act, 1956, with a child of their own can adopt a
child of the same gender under the provisions of the Juvenile Justice Act of 2000. The
issue raised presents significant ramifications on the entitlement of individuals and
couples across the spectrum of religious and social groups in India to adopt children.
The Juvenile Justice Act, 2000 is legislation of a secular nature. The human tragedies
of orphaned and abandoned children straddle social and religious identity. The urge to
adopt is a sensitive expression of the human personality. That urge again is not
constricted by religious identity. The Court must harmonise personal law with secular
legislation.

The facts
3.

The First and Second Petitioners who are Hindus married on 29th June, 2001. Both of
them are actors by profession, though the Second Petitioner, with two young children
to look after, is on a sabbatical. The First Petitioner was born on 27th July, 1967 while
the Second Petitioner was born on 19th January, 1977. Both of them have a daughter,
who was born on 4th February, 2003.

4.

In a Guardianship Petition1 instituted under the Guardians and Wards Act, 1890
before this Court on 13th April, 2005 the Petitioners sought their appointment as
guardians of a female child. The child was born on 12th November, 2004 to a mother
whose identity is in the interests of her privacy not necessary to be disclosed here. The
mother and her spouse executed a declaration on 16th November, 2004, four days
after the child was born, recording the circumstances in which they had decided to
surrender the child at the nursing home where the child was born. The declaration
stated that the mother and her spouse had been counselled by a social worker at Bal
Vikas which is a placement agency recognised by the Government of India and that
they had voluntarily agreed to surrender the child. At the foot of the declaration, a
Scrutiny officer of the Indian Council for Social Welfare made an endorsement of
having counselled the parents of the contents of the document and of making the
mother aware of the fact that she had a period of two months to reclaim the child, failing
which the child may be placed either in adoption or guardianship. The parents have not
come forth to claim the child. An affidavit was filed before this Court on 13th April, 2005
by the 1 Indian Guardianship Petition 83 of 2001. managing trustee of Bal Vikas
certifying the facts and recording an opinion that it would be in the interest of the child
to place her under guardianship.
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5.

By an order of Hon'ble Mr. Justice A.M. Khanwilkar dated 8 th June, 2005 the
Petitioners were appointed guardians of the child. The child has since lived with the
Petitioners for over four years. A petition has been filed seeking a declaration that the
Petitioners are the adoptive parents of the child with consequential rights, privileges
and responsibilities under the law. The Hindu Adoptions and Maintenance Act, 1956

6.

The Hindu Adoptions and Maintenance Act, 1956 was enacted by Parliament "to
amend and codify the law relating to adoptions and maintenance among Hindus".
Section 4 gives overriding force and effect to the Act over any text, rule or interpretation
of Hindu law or any custom or usage prevalent before the commencement of the Act
and over any other law in force immediately before the commencement of the Act
insofar as it was inconsistent with the provisions of the legislation. Section 5 stipulates
that no adoption shall be made after the commencement of the Act by or to a Hindu
except in accordance with the provisions contained in the Chapter. Any adoption made
in contravention of the provisions is void. Consequently, under sub section (2), any
adoption which is void does not create any right in the adoptive family in favour of any
person which he or she could not have acquired except by reason of the adoption. The
requisites of a valid adoption are specified in Section 6. Among them is the
requirement that the person adopting must have the capacity and the right to take in
adoption while the person adopted must be capable of being taken in adoption. Sub
section (4) of Section 9 contains a reference to children who have been abandoned by
providing that in such a case the guardian of the child is empowered to give the child in
adoption with the previous permission of the Court to any person including the
guardian himself. For a person to be adopted, Section 10 provides that (i) the person
should be a Hindu; (ii) the person should not already have been adopted; (iii) the
person should not have been married unless there is a custom or usage to the
contrary; (iv) the person should not have completed the age of fifteen, unless there is a
custom or usage to the contrary.

7.

Section 11 provides that in every adoption certain conditions must be complied with.
Clauses (i) and (ii) of Section 11 are as follows : "(i) if the adoption is of a son, the
adoptive father or mother by whom the adoption is made must not have a Hindu son,
son's son or son's son's son (whether by legitimate blood relationship or by adoption)
living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or
mother by whom the adoption is made must not have a Hindu daughter or son's
daughter (whether by legitimate blood relationship or by adoption) living at the time of
adoption." What these clauses stipulate is a prohibition on the adoption of a child of the
same gender where the adoptive father or mother already have a child living at the
time of the adoption. If the adoption is of a daughter, the adoptive father or mother must
not have a Hindu daughter or a son's daughter living at the time of adoption. Where the
adoption is of a son, the condition is more stringent because the adoptive father or
- 126 -

mother should not have a Hindu son, son's son or son's son's son living. Constitutional
provisions
8.

Article 15 of the Constitution empowers the State, in Clause (3), to make special
provisions for women and children. Article 39 is part of the Directive Principles of State
policy. Clause (e) of Article 39 directs the State in framing its policies to secure that the
tender age of children is not abused. In clause (f) the State has to ensure that children
are given opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity so as to ensure that childhood and youth are protected against
exploitation and against moral and material abandonment. By Article 45 the State has
to endeavour to provide early childhood care and education for all children until they
complete the age of six. Article 47 requires the State to raise levels of nutrition. Under
Article 51-A it is the fundamental duty of every citizen who is a parent or guardian to
provide opportunities for education to his or her child or, as the case may be, ward
between the age of six and fourteen.

9.

Fundamental as they are in the governance of the country, these provisions are part of
a sensitive vision of the founding fathers. The human tragedy of the exploitation of
children, of child abuse and of malnutrition among children was in contemplation as
these provisions were drafted. Those provisions are a composite part of our
constitutional ethos which places freedom and dignity as one of the foremost values of
governance in civil society. Freedom and dignity of the young must count above all.
The young are amongst the most vulnerable to disease and deprivation which follow
upon abandonment and isolation. Poverty has no religion. The convention on the
Rights of the Child

10.

India ratified the Convention on the Rights of the Child on 11th December, 1992. Article
3 of the Convention provides that in all actions concerning children, whether
undertaken by public or private social welfare institutions, Courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary
consideration.
All States have undertaken to ensure to children such protection and care as is
necessary for their well being and to take all appropriate legislative and administrative
measures. Article 20 of the Convention provides that a child temporarily or
permanently deprived of his or her family environment shall be entitled to special
protection and assistance provided by the State. Such care could include foster
placement and adoption amongst other alternatives. Under Article 21 States who are
parties to the Convention recognized that the system of adoption shall ensure that the
best interests of the child shall be the paramount consideration.
The Juvenile Justice Act, 2000

11.

The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000, "to
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consolidate and amend the law relating to juveniles in conflict with law and children in
need of care and protection". The object of the Act is to provide for "care, protection
and treatment by catering to their development needs and by adopting a child-friendly
approach in the adjudication and disposition of matters in the best interest of children
and for their ultimate rehabilitation". The Preamble to the Act makes reference to
several constitutional provisions which have a bearing on the welfare of children and
to the obligation assumed by India as a responsible member of the international
community.
12.

Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2000
to effectuate constitutional provisions and ful-fill India's international obligations. The
Act as now enacted is intended to provide effective provisions and various
alternatives for rehabilitation and social reintegration such as adoption, foster care,
sponsorship and aftercare of abandoned, destitute, neglected and delinquent
juveniles and children. The Act was amended in 2006 in order to effectuate the
beneficial objects of the legislation and in order to remove the anomalies which had
arisen in the implementation of the Act. Rehabilitation and Social Integration

13.

Chapter IV of the Juvenile Justice Act is entitled "Rehabilitation and Social


Reintegration". Section 40 of the Act provides that rehabilitation and social
reintegration of a child shall be carried out alternatively by (i) adoption, (ii) foster care,
(iii) sponsorship and (iv) sending the child to an after care organisation. Sub section
(1) of Section 41 provides that the primary responsibility for providing care and
protection to a child is to be that of his or her family. By sub section (2) adoption is to be
resorted "for the rehabilitation of children who are orphaned, abandoned or
surrendered" through such mechanism as may be prescribed. Sub section (3) of
Section 41 empowers the Court to give children in adoption subject to satisfaction of
investigations having been carried out, as are required for giving children in adoption.
Sub section (4) empowers the State Government to recognize one or more of its
institutions or voluntary organizations in each district as specialised adoption
agencies for the placement of orphaned, abandoned or surrendered children for
adoption. Sub section (5) of Section 41 contains the following stipulations for offering
children in adoption : "(5) No child shall be offered for adoption - (a) u n t i l t w o
members of the Committee declare the child legally free for placement in the case of
abandoned children, (b) till the two months period for reconsideration by the parent is
over in the case of surrendered children, and (c) without his consent in the case of a
child who can understand and express his consent."

14.

Sub section (6) emphasizes that the Court may allow a child to be given in adoption (a)
to a person irrespective of marital status; or (b) to parents to adopt a child of the same
sex irrespective of the number of living biological sons or daughters; or (c) to childless
couples. These provisions of the Juvenile Justice Act must be read in the context of
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some of the definitions. The expression "adoption" is defined by Clause (aa) of Section
2 as follows :- "(aa) 'adoption' means the process through which the adopted child is
permanently separated from his biological parents and becomes the legitimate child of
his adoptive parents with all the rights, privileges and responsibilities that are attached
to the relationship."
15.

Section 2(d) defines the expression "child in need of care and protection". Clause (v)
includes within this category a child who does not have a parent and whom no one is
willing to take care of or whose parents have abandoned or surrendered the child.

16.

Rules have been framed under the Act and Rule 33 provides for rules for implementing
Chapter IV which deals with rehabilitation and social integration. Harmonising the Act
of 1956 and the Juvenile Justice Act, 2000

17.

The Hindu Adoptions and Maintenance Act, 1956 regulates adoptions by or to a Hindu.
The Act spells out requisites of valid adoptions, defines capacities for men and women
professing the Hindu religion to take in adoption and to give in adoption, for persons
who may be adopted and the conditions for adoption. The Act enunciates
consequences or effects of a valid adoption in law. The Act establishes rules of general
applicability to Hindus in specific areas of family law Adoption and maintenance. The Juvenile Justice (Care and Protection of Children)
Act, 2000 is beneficent secular legislation. The Act makes special provisions for a
limited sub class of children - those juveniles in conflict with law and children in need of
care and protection.
Adoption under the Act of 2000 is an instrument of legislative policy to rehabilitate and
provide social integration to children who are in need of care and protection. The
Preamble to the Act emphasizes that the legislation was enacted to consolidate and
amend the law relating to juveniles in conflict with law and children in need of care and
protection.
Rehabilitation and social integration of orphaned, abandoned and surrendered
children is a matter of legislative regulation by the Juvenile Justice Act. Adoption is a
technique contemplated by the law in order to facilitate rehabilitation and reintegration
of children of a particular class governed by Chapter IV. The mission of the law is to
provide special rules to govern the adoption of a narrow sub class of children namely,
those who are orphaned, surrendered or abandoned. In construing the provisions of
the Juvenile Justice Act the effort of the Court must be to ensure that the beneficent
object with which the legislation was enacted must be facilitated and furthered.
Beneficial legislation, it is a trite principle of interpretation, must be construed liberally.

18.

The provisions of the Juvenile Justice Act came up for consideration before a
Constitution bench of the Supreme Court in Pratap Singh v.
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State of Jharkhand1. The Supreme Court held that the Act was not only beneficial
legislation but that it was also remedial in character. The Constitution bench held that
the statute must be construed in a manner that would make it effective and operative
on the principle of ut res magis 1 (2005) 3 SCC 551.
Valet quam pereat. A similar approach had been adopted by a Bench of three Learned
Judges of the Supreme Court in Umesh Chandra v. State of Rajasthan2. The
Rajasthan Children Act, 1970 was regarded as a piece of social legislation which the
Court held, would have to be "liberally and meaningfully construed".
19.

Adoption is a facet of the right to life under Article 21 of the Constitution. The right to
live that is asserted is, on the one hand, the right of parents and of individuals - women
and men - who seek to adopt a child to give meaning and content to their lives. Equally
significant, in the context of the Juvenile Justice Act, 2000, the right to life that is
specially protected is the right of children who are in need of special care and
protection. The legislature has recognized their need for rehabilitation and social
integration to obviate the disruptive social consequences of destitution, abandonment
and surrender. There is legislative recognition of adoption as a means to sub-serve
the welfare of orphaned, abandoned and surrendered children. 2 (1982) 2 SCC 202.

20.

The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000
must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956
deals with conditions requisite for adoption by Hindus. The Juvenile Justice Act of
2000 is a special enactment dealing with children in conflict with law and children in
need of care and protection. While enacting the Juvenile Justice Act 2000 the
legislature has taken care to ensure that its provisions are secular in character and
that the benefit of adoption is not restricted to any religious or social group. The focus
of the legislation is on he condition of the child taken in adoption. If the child is
orphaned, abandoned or surrendered, that condition is what triggers the beneficial
provisions for adoption. The legislation seeks to ensure social integration of such
children and adoption is one method to achieve that object. The religious identity of the
child or of the parents who adopt is not a precondition to the applicability of the law.
The law is secular and deals with conditions of social destitution which cut across
religious identities.
The legislature in its wisdom clarified in sub section (6) of Section 41 that the Court
may allow a child to be given in adoption to parents to adopt a child of the same sex
irrespective of the number of living biological sons or daughters. This provision is
intended to facilitate the rehabilitation of orphaned, abandoned or surrendered
children. The condition must apply to all persons irrespective of religious affiliation
who seek to adopt children of that description. The object of rehabilitation and
providing for social reintegration to orphaned, abandoned or surrendered children is a
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matter of high legislative policy. It is in effectuation of that policy that the legislature has
stipulated that adoption of such a child must proceed irrespective of the marital status
of a person taking in adoption and irrespective of the number of living biological
children of the parents seeking adoption. Consequently, where the child which is
sought to be adopted falls within the description of an orphaned, abandoned or
surrendered child within the meaning of sub section (2) of Section 41 or a child in need
of care and protection under clause (d) of Section 2, the provisions of the Juvenile
Justice (Care and Protection of Children) Act 2000 must prevail. In such a case the
embargo that is imposed on adopting a child of the same sex by a Hindu under clauses
(i) and (ii) of Section 11 of the Hindu Adoptions and Maintenance Act, 1956 must give
way to the salutary provisions made by the Juvenile Justice Act. Where, however, the
child is not of a description falling under the purview of Chapter IV of the Juvenile
Justice Act, 2000, a Hindu desirous of adopting a child continues to be under the
embargo imposed by clauses (i) and (ii) of Section 11 of the Act of 1956. If the two
pieces of legislation, both of which are enacted by Parliament are harmoniously
construed, there is no conflict of interpretation. Resolution of Conflicting provisions the alternate hypothesis
21.

Alternatively, even if there were to be a conflict between the provisions of the Hindu
Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the
latter Act which would prevail. This is on the well settled principle that when there are
two special Acts dealing with the same subject matter, the legislation which has been
enacted subsequently should prevail. The Supreme Court applied this principle in the
context of a conflict between the Companies Act 1956 and the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993 in its decision in Allahabad Bank v.
Canara Bank3. Where a later enactment does not expressly amend (whether textually
or indirectly) an earlier enactment which it has power to override, but the provisions of
the later enactment are inconsistent with those of the earlier, the later by implication
amends the earlier so far as is necessary to remove the inconsistency between them.
Bennion on Statutory Interpretation (5th ed., 2008) 80: Implied amendment.

22.

Here, the 1956 Act prohibits a Hindu from adopting a child when he or she already has
a child of the same gender, and the 2000 Act creates a general right to adopt
abandoned, surrendered, or orphaned children. While there is a presumption against
implied amendment or repeal under Indian law, the Supreme Court has recognized
that "this presumption may be rebutted where the inconsistency cannot be
reconciled." Municipal Council, Palai v. T.J. Joseph4. If the 2000 Act is held to be
inconsistent with the 1956 Act, when passing the later Act Parliament impliedly 3
(2000) 4 SCC 406.
4 AIR 1963 SC 156,1, 1564.
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Amended the Hindu Adoptions and Maintenance Act, 1956, to permit adoption of
children in the specified subclass, irrespective of whether a person has children of the
same sex.
23.

Special laws versus general laws: Courts examining implied amendments of earlier
Acts distinguish special laws from general laws. Under Indian law, an Act is only
special or general relative to other Acts; it may be general in some situations but
special in others. "There can be a situation in law where the same statute is treated as
a special statute vis -vis one legislation and again as a general statute vis--vis yet
another legislation." Allahabad Bank v. Canara Bank (supra) . "In determining whether
a statute is a special or general one, the focus must be on the principal subject matter
plus the particular perspective." Life Ins. Co. of India v. D.J. Bahadur5.

24.

In the LIC case, the Supreme Court considered a conflict between the Industrial
Disputes Act and the Life Insurance Corporation Act. The Court concluded that the ID
Act was a special Act relative to the LIC Act 5 AIR 1980 SC 2181, 2200. under the
circumstances of the case. Id. "The ID Act is a special statute devoted wholly to
investigation and settlement of industrial disputes which provides definition for the
nature of industrial disputes coming within its ambit." d. "From alpha to omega, the ID
Act has one special mission -- the resolution of industrial disputes through specialized
agencies according to specialized procedures and with special reference to the
weaker categories of employees coming within the definition of workmen." Id.

25.

Here, the Hindu Adoptions and Maintenance Act, 1956, establishes rules of general
applicability in Hindu family matters, including rules for adoption. Considered against
the entire swathe of Personal Law in India, it is a special act, providing rules applicable
only to Hindus. In the field of adoption, however, it provides general principles of
application to Hindus.

26.

The Juvenile Justice Act, 2000, establishes specific rules for the adoption of a limited
subclass of persons- abandoned, surrendered, or orphaned children. The special
provision modifies the operation of the general rule without completely overriding it: in
general, Hindus cannot adopt a child of the same gender as an existing child, but there
is a special rule in the case of abandoned, surrendered, or orphaned children. As in
Bahadur, here the later act "has one special mission" -establishing rules of adoption
for a limited subclass of persons. Therefore, in these circumstances, the Juvenile
Justice Act is a special act that overrides the general provisions of the Hindu Adoptions
and Maintenance Act.

27.

The Juvenile Justice Act, 2000, is best viewed as impliedly amending the conflicting
provision of the Hindu Adoptions and Maintenance Act, rather than repealing it. The
general prohibition of the earlier Act remains in force; the later Act simply creates an
exception in the case of abandoned children.
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28.

Arguments to the contrary: There are three possible submissions which can be urged
to the contrary. First, the Hindu Adoptions and Maintenance Act applies only to Hindus;
it does not limit the ability of Muslims, Christians, Parsis and other communities to
adopt children of the same sex as their existing children. Thus it would be possible to
give effect to the Juvenile Justice Act, 2000, by holding that Sections 11(i) and (ii) are
applicable to Hindu adoptions because the conflicting section of the Hindu Adoptions
and Maintenance Act remains operable.

29.

Second, it is possible to view the Hindu Adoptions and Maintenance Act as a special
act and the Juvenile Justice Act as a general act, in which case, under general
principles of statutory interpretation, the second (general) act would not impliedly
amend the first (special) act. See generally Bennion 88: Generalia Specialibus Non
Derogant. The Hindu Adoptions and Maintenance Act establishes rules for Hindus, a
subclass of the overall population; since its provisions are not applicable to all Indians,
it is a special act in some respects. On the other hand, the Juvenile Justice Act is a law
of general applicability, in so far as it applies without respect to religious affiliation, and
any child can be abandoned, surrendered, or orphaned.

30.

Third, the Juvenile Justice Act contains language expressly repealing some conflicting
statutes, but not statutes that conflict with the adoption provisions. Section 1(4) of the
Juvenile Justice Act, 2000 provides that : "1(4) Notwithstanding anything, contained
in any other law for the time being in force, the provisions of this Act shall apply to all
cases involving detention, prosecution, penalty or sentence of imprisonment of
juveniles in conflict with law under such other law." The Act expressly overrides a
limited class of conflicting laws.

31.

None of the three criticisms is ultimately persuasive. The first criticism fails to focus on
"the principal subject matter plus the particular perspective." Life Ins. Co. of India v.
D.J. Bahadur (supra). The principal subject matter of the Juvenile Justice Act is
adoption of a particular sub-class of children, while the Hindu Adoptions and
Maintenance Act provides only general adoption principles applicable to Hindus. The
focus of the 2000 Act is on the status of the child. Hence, in the adoption of
surrendered, abandoned or orphaned children, Section 41(6)(b) lifts the restrictive
condition imposed by Section 11(i) and (ii) of the 1956 Act. For children falling in the
particular class, the Act of 2000 is a special provision.

32.

The second criticism fails because, even if the Juvenile Justice Act is better viewed as
a general act, labelling an act "general" or "special" is not necessarily outcomedeterminative. As the Supreme Court has explained: "[T]here is no rule of law to
prevent repeal of a special by a later general statute and, therefore, where the
provisions of the special statute are wholly repugnant to the general statute, it would
be possible to infer that the special statute was repealed by the general enactment."
- 133 -

Municipal Council, Palai v. T.J. Joseph, supra.


33.

The third criticism is also not fatal. The conditions requiring implied repeal remain: two
laws, one earlier and one subsequent, contain conflicting provisions that cannot both
receive effect. However, it would be necessary to emphasize that the provisions of
Section 11(i) and (ii) of the Hindu Adoptions and Maintenance Act, 1956 can be
harmonised with those of the Juvenile Justice Act, 2000. The later Act of 2000 carves
out special provisions for dealing with the rehabilitation and integration of juveniles in
conflict with law and children in need of special care and protection. Adoption of
surrendered, abandoned and orphaned children is the mission of the law. That
mission has to be achieved by allowing the adoption of children within the subclass,
irrespective of the umber of living biological children of the same gender. To that extent
there is an exception to the embargo under clauses (i) and (ii) of Section 11 of the Act
of 1956. The embargo is to that extent lifted. The Conclusion on facts

34.

The Petitioners profess the Hindu religion. They already have a biological daughter.
They have obtained guardianship under the provisions of the Guardian and Wards
Act, 1890 of a minor child of the same sex. The child of whom they assumed
guardianship did fit the description of a child in need of care and protection under
Section 2(d) (v) of the Juvenile Justice Act, 2000 and of a surrendered child under sub
section (2) of Section 41. The Petitioners were eligible to adopt the child under the
Juvenile Justice Act, 2000 and the order of guardianship does not destroy that
entitlement. The child was a surrendered child and was legally free for adoption. The
substance and effect of the procedures prescribed under the Juvenile Justice (Care
and Protection of Children) Act, 2000 have been complied with. Both the children are
pursuing their education in the Kindergarten Class of a nursery school at Vile Parle.
The report of the school has been placed on the record. There is abundant material
before the Court for the Court to conclude that it is manifestly in the interest and
welfare of the child that the petition for adoption should be allowed. The child has
already been with the Petitioners for a period in excess of four years.

35.

The Petition is accordingly disposed of in terms of the reliefs sought before the Court.
There hall be a declaration that the Petitioners are the adoptive parents of Sharinee
with all the rights, privileges, responsibilities and consequences under the law.

36.

There shall be an order in terms of the Judge's Order separately signed.

37.

Before concluding this Court would wish to record its appreciation of the able
assistance rendered to the Court by Mr. Vishal Kanade, learned counsel appearing
on behalf of the Petitioners.

- 134 -

ARREST, DETENTION AND HANDCUFFING


Arrest involves restriction of liberty of a person arrested and therefore, infringes the
basic human rights of liberty. Nevertheless the Constitution of India as well as International
human rights law recognise the power of the State to arrest any person as a part of its primary
role of maintaining law and order. The Constitution requires a just, fair and reasonable
procedure established by law under which alone such deprivation of liberty is permissible.
Although Article 22(1) of the Constitution provides that every person placed under arrest
shall be informed as soon as may be the ground of arrest and shall not be denied the right to
consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal
Procedure, 1973 (Cr. PC) requires a police officer arresting any person to forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds
for such arrest. in actual practice these requirements are observed more in the breach.
Likewise, the requirement of production of the arrested person before the court promptly
which is mandated both under the Constitution [Article22 (2)] and the Cr. PC (Section 57] is
also not adhered to strictly.
In Juvenile Justice System
The word "Arrest" is substituted by the word "Apprehend" in the juvenile
justice system because of its long association with adult criminal justice system.
Section 10(1) of JJ Act, 2000 provides that a juvenile should be produced before Juvenile
Justice Board within 24 hours of his arrest. Detaining persons in custody beyond this period
would amount to illegal detention.
The maximum detention period is three years for juvenile in conflict with law children.
The handcuffing of juvenile is a serious issue in India. As per Juvenile Justice Act,
2006 (amendment) and its rules; handcuffing of juvenile means violating the Rule 76 of
Juvenile Justice (care and protection of children) Rules, 2007 (Model Rules).
Correspondingly as well as Rule 89 of Bihar Juvenile justice Rules, 2012 said the same
statement.
"No child or the juvenile in conflict with law dealt with under the provisions of
the Act and the rules made there under shall be handcuffed or fettered"
[Rule 76 & 89 of Juvenile Justice (care and protection of children) Rules, 2007 and of
Bihar Juvenile Justice Rules, 2012 respectively].

- 135 -

Prem Shankar Shukla vs Delhi Administration on 29 April, 1980


Equivalent citations : 1980 AIR 1535, 1980 SCR (3) 855
Author : V Krishnaiyer
Bench : Krishnaiyer, V.R.
Manacling a man accused at an offence, constitutional validity of-Constitution of
India Articles 14, 19 and 21- Issuance of Writ of Habeas Corpus for human
Justice under Article 32 of the Constitution-Universal Declaration of Human Rights,
1948 Articles 5 and 10 read with norms in part III and the provisions in the
Prisoners (Attendance in Courts) Act, 1955-Punjab Police Rules, 1934, Vol. III
Chap. 25. Rule 26: 22, 23.
1.

The guarantee of human dignity forms part of an Constitutional culture and the
positive provisions of Articles 14, 19 and 21 spring into action to dishackle any man
since to manacle man is more than to mortify him; it is to dehumanize him and,
therefore, to violate his
very personhood, too
often using the mask of
'dangerousness' and security. Even a prisoner is a person not an animal, and an
under-trial prisoner is a fortiori so. Our nations founding document admits of no
exception. Therefore, all measures authorised by the law must be taken by the
Court to keep the stream of prison justice unsullied. [862 D-F, 863 E-F]

Sunil Batra v. Delhi Administration and ors. [1978] 4


S.C.C. 494; followed .
2.

The Supreme Court is the functional sentinel on the qui vive where "habeas" justice
is in jeopardy. If iron enters the soul of law and of the enforcing agents of lawrather, if it is credibly alleged so-the Supreme Court must fling aside forms of
procedure and defend the complaining individual's personal liberty under Articles
14 19 and 21 after due investigation. Access to human justice is the essence of
Article 32. [864 A-B]

3.

Where personal freedom is at stake or torture is in store to read down the law is to
write off the law and to rise to the remedial demand of the manacled man is to break
human bondage. if within the reach of judicial process. [864 F-G]

4.

There cannot be a quasi-caste system among prisoners in the egalitarian context of


Article 14. In plain language, to say that the "better class under-trial be not
handcuffed without recording the reasons in the daily diary for considering the
necessity of the use on such a prisoner while escort to and from court" means
- 136 -

that ordinary Indian under-trials shall be rentively handcuffed during transit between
jail and court auld the better class prisoner 856 shall be so confined only if
reasonably apprehended to be violent or rescued and is against the express
provisions of Article 21. [863 D-E, 865 G-H]
Maneka Gandhi v. Union of India [1978] 2 SCR 621 @ 647;
applied.
Vishwanath v. State Crl. Misc. Main No. 430 of 1978 decided on 6-4-79 (Delhi High
Court), overruled.
5.

Though circumscribed by the constraints of lawful detention, the indwelling essence


and inalienable attributes of man
qua man
are entitled to the great rights
guaranteed by the Constitution. That is why in India, as in the similar jurisdiction in
America, the broader horizons of habeas corpus spread out, beyond the orbit of
release from illegal custody, into every trauma and torture on persons in legal
custody, if the cruelty is contrary to law, degrades human dignity or defiles his
personhood to a degree that violates Articles 21, 14 and 19 enlivened by the
Preamble. [868 A-B, 867 G-H]

6.

The collection of handcuff law, namely, Prisoners (Attendance in Courts) Act, 1955;
Punjab Police Rules, 1934, (Vol. III) Rules 26: 22(i) (a) to (f); 26.21A, 27.12,
Standing order 44, Instruction on handcuffs of November,1977, and orders of
April 1979, must meet the demands of Articles 14, 19 and 21. Irons forced on
under-trials in transit must conform to the humane imperatives of the triple Articles.
Official
cruelty, sans
constitutionality degenerates into
criminality. Rules,
standing orders, Instructions and
Circulars must
bow before Part III of the
Constitution. [872 B-D]
The Preamble sets the human tone and temper of the Founding Document and
highlights justice, Equality and the dignity of the individual. Article 14 interdicts
arbitrary treatment, discriminatory dealings and
capricious cruelty. Article 19
prescribes restrictions on free movement unless in the interests of the general
public.
Article 21 is the sanctuary of human values, prescribes fair procedure
and forbids barbarities, punitive or procedural. such is the apercu. [872 C-E]

Maneka Gandhi v. Union of India, [1978] 2 SCR 621 @


647; Sunil Batra v. Delhi Administration, [1978] 4 S.C.C.
494 @ 545; reiterated.
7.

Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh


And at the first blush, arbitrary. Absent fair procedure and objective monitoring to
- 137 -

inflict "irons" is to resort to zoological strategies repugnant to Article 21. Surely, the
competing claims of securing the prisoner from fleeing and protecting his personality
from barbarity have to be harmonized. To prevent the escape of an under-trial is in
public interest, reasonable, just and cannot, by itself be castigated. But to bind a man
hand and foot, fetter his limbs with hoops of steel, shuffle him along in the
streets and stand him for hours in the courts is to torture him, defile his dignity,
vulgarise society and foul the soul of our Constitutional culture. [872 F-G]
8.

Insurance against escape does not compulsorily required handcuffing. There are
other measures whereby an escort can keep safe custody of a detenu without
the indignity and cruelty implicit in handcuffs or other iron In contraptions. Indeed,
binding together either the hands or feet or both has not merely a preventive impact
but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict
humiliation on the bearer. 857 The three components of "irons" forced on the human
person are: to handcuff i.e., to hoop harshly to punish humiliatingly and to
vulgarise the viewers also. Iron straps are insult and pain writ large, animalising
victim and keepers. Since there are other ways of ensuring safety as a rule
handcuffs or other fetters shall not be forced on the person of an under-trial prisoner
ordinarily. As necessarily implicit in Articles 14 and 19, when there is no compulsive
need to fetter a person's limbs it is sadistic, capricious, despotic and demoralizing
to humble a man by manacling him. Such arbitrary conduct surely slap Article14 on
the face.
Section 9(2)(e) of the Act empowers the State Government to make Rules regarding
the escort of persons confined in a prison to and from courts in which their
attendance is required and for their custody during the period of such attendance. The
Punjab Police Rules, 1934 (Vol. III), contain some relevant provisions although the
statutory source is not cited. We may extract them here:
26.22(1) Every male person falling within the following category, who has to be
escorted in police custody, and whether under police arrest, remand Conditions in
which or trial, shall, provided that he handcuffs are to be appears to be in health and
not used. incapable of offering effective resistance by reason of age, be carefully
handcuffed on arrest and before removal from any building from which he may he
taken after arrest:-

(a)

persons accused of a non bailable offence punishable with any sentence exceeding
in severity a term of three years' imprisonment.

(b)

Persons accused of an offence punishable under section 148 or 226, Indian Penal
Code.
- 138 -

(c)

Persons accused of, and previously convicted of, such an offence as to bring the case
under section 75, Indian Penal Code.

(d)

Desperate characters.

(e)

Persons who are violent, disorderly or obstructive or acting in a manner calculated to


provoke popular demonstration.

(f)

Persons who are likely to attempt to escape or to commit suicide or to be the object of
an attempt at rescue. This rule shall apply whether the prisoners are escorted by
road or in a vehicle. (2) Better class under-trial prisoners must only be hand cuffed
when this is regarded as necessary for safe custody, When a better class prisoner is
handcuffed for reasons other than those contained in (a), (b) and (c) of sub-rule (1)
the officer responsible shall enter in the Station Diary or other appropriate record his
reasons for considering the use of hand-cuffs necessary.
This paragraph sanctions handcuffing as a routine exercise on arrest, if any of the
conditions (a) to (f) is satisfied. 'Better Class' under-trial prisoners receive more
respectable treatment in the sense that they shall not be handcuffed unless it is
necessary for safe custody Moreover, when handcuffing better class under-trials the
officer concerned shall record the reasons for considering the use of handcuffs
necessary.

Better class prisoners are defined in rule 26.21-A which also may be set out here:
26.21-A. Under-trial prisoners are divided into two classes based on previous
standard of living. The classifying authority is the trying court subject to the approval
of the District Magistrate, but during the period before a Classification of underprisoner is brought before a trial prisoners. competent court, discretion shall be
exercised by the officer in charge of the Police Station concerned to classify him as
either 'better class' or 'ordinary'. Only those prisoners should be classified
provisionally as 'better class' who by social status, education or habit of life have been
accustomed to a superior mode of living. The fact, that the prisoner is to be tried for
the commission of any particular class of offence is not to be considered. The
possession of a certain degree of literacy is in itself not sufficient for 'better class'
classification and no under-trial prisoner shall be so classified whose mode of living
does not appear to the Police officer concerned to have definitely superior to that of
the ordinary run of the population, whether urban or rural. Under-trial prisoners
classified as 'better class' shall be given the diet on the same scale as prescribed for A
and B class convict prisoners in Rule 26.27(1).
The dichotomy between ordinary and better class prisoners has relevance to the
facilities they enjoy and also bear upon the manacles that may be clamped on their
- 139 -

person. Social status, education mode of living superior to that of the ordinary run of
the population are the demarcating tests.
Paragraph 27.12 directs that prisoners brought into court in handcuffs shall continue
in handcuffs unless removal thereof is "specially ordered by the Presiding officer",
that is to say, handcuffs even within the court is the rule and removal an exception.
We may advert to revised police instructions and standing orders bearing on
handcuffs on prisoners since the escort officials treat these as of scriptural authority.
Standing order 44 reads:
(1)

The rules relating to handcuffing of political prisoners and others are laid down in
Police Rules 18.30, 18.35, 26.22, 26.23 and 26.24. A careful Perusal of these
provisions shows that handcuffs are to be used if a person is involved in serious nonbailable offences, is a previous convict, a desperate character, violent, disorderly or
obstructive or a person who is likely to commit suicide or who may attempt to escape.

(2)

In accordance with the instructions issued by the Government of India, Ministry of


Home- Affairs, New Delhi vide their letters No. 2/15/57-P-IV dated 26-7-57 and No.
8/70/74-GPA-I dated 5-11-74, copies of which were sent to all concerned vide this
Hdqrs. endst. No. 19143-293/C&T dated 3-9-76, handcuffs are normally, to be used
by the Police only where the accused/prisoner is violent, disorderly, obstructive or is
likely to attempt 'to escape or commit suicide or is charged with certain serious nonbailable' offences.

(3)

x x x x x x (4) It has been observed that in actual practice prisoners/persons arrested


by the police are handcuffed as a matter of routine. This is to be strictly stopped
forthwith.

(5)

Handcuffs should not be used in routine. They are to be used only where the person is
desperate, rowdy or is involved in non-bailable offence. There should ordinarily be
no occasion to handcuff Persons occupying a good social position in public life, or
professionals like jurists, advocates doctors, writers, educationists and well known
journalists. This is at best an illustrative list; obviously it cannot be exhaustive. It is the
spirit behind these instructions that should be understood. It shall be the duty of
supervisory officers at various levels, the SHO primarily, to see that these
instructions are strictly complied with. In case of non-observance of these
instructions severe action should be taken against the defaulter.
There is a procedural safeguard in sub-clause (6): (6) The duty officers of the police
station must also ensure that an accused when brought at the police station or
despatched. the facts where he was handcuffed or otherwise should be clearly
mentioned along with the reasons for handcuffing in the relevant daily diary report.
- 140 -

The SHO of the police station and ACP of the Sub-Division will occasionally check
up the relevant daily diary to see that these instructions are being complied with by
the police station staff Political prisoners, if handcuffed, should not be walked through
the streets (sub-para 7) and so, by implication others can be.
These orders are of April 1979 and cancel those of 1972. The instructions on
handcuffs of November 1977 may be reproduced in fairness:
The conclusion flowing from these considerations is that there must first be wellgrounded basis for drawing a strong inference that the prisoner is likely to jump jail or
break out of custody or play the vanishing trick. The belief in this behalf must be
based on antecedents which must be recorded and proneness to violence must be
authentic. Vague surmises or general averments that the under-trial is a crook or
desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete
proof readily available of the dangerousness of the prisoner in transit- the onus of
proof of which is on him who puts the person under irons-the police escort will be
committing personal assault or mayhem if he handcuffs or fetters his charge. It is
disgusting to see the mechanical way in which callous policemen, cavalier fashion,
handcuff prisoner in their charge, indifferently keeping them company assured by
the thought that the detainee is under 'iron' restraint.
-1-

Even orders of superiors are no valid justification as constitutional rights cannot be


kept in suspense by superior orders, unless there is material, sufficiently stringent, to
satisfy a reasonable mind that dangerous and desperate is the prisoner who is being
transported and further that by adding to the escort party or other strategy he
cannot be kept under control. It is hard to imagine such situations. We must repeat
that it is unconscionable, indeed, outrageous, to make the strange classification
between better class prisoners and ordinary prisoners in the matter of handcuffing.
This elitist concept has no basis except that on the assumption the ordinary Indian
is a sub-citizen and freedoms under Part III of the constitution are the privilege of the
upper sector of society.
We must clarify a few other facets, in the light of Police Standing orders. Merely
because a person is charged with a grave offence he cannot be handcuffed, He may
be very quiet, well-behaved, docile or even timid. Merely because the offence is
serious, the inference of escape proneness or desperate character does not follow.
Many other conditions mentioned in the Police Manual are totally incongruous with
what we have stated above and must fall as unlawful. Tangible testimony,
documentary or other, or desperate behaviour, geared to making good his escaped
alone will be a valid ground for handcuffing and fettering, and even this may be
avoided by increasing the strength of the escorts or taking the prisoners in well
- 141 -

protected vans. It is heartening to note that in some States in this country no


handcuffing is done at all, save in rare cases, when taking under-trials to courts and
the scary impression that unless the person is confined in irons he will run away is a
convenient myth.
Some increase in the number of escorts, arming them if necessary, special training for
escort police, transport of prisoners in protected vehicles, are easily available
alternatives and, in fact, are adopted in some States in the country where handcuffing
is virtually abolished, e.g. Tamil Nadu.
Even in cases where, in extreme circumstances, handcuffs have to be put on the
prisoner, the escorting authority must record contemporaneously the reasons for
doing so. Otherwise, under Art.
21 the procedure will be unfair and bad in law. Nor will mere recording the reasons do,
as that can be a mechanical process mindlessly made. The escorting officer,
whenever he handcuffs a prisoner produced in court, must show the reasons so
recorded to the Presiding Judge and get his approval. Otherwise, there is no control
over possible arbitrariness in applying handcuffs and fetters.
The animal freedom of movement, which even a detained is entitled to under
Article 19, cannot be cut down cruelly by application of handcuffs or other hoops.
lt will be unreasonable so to do unless the State is able to make out that no
other practical way of forbidding escape is available, the prisoner being so
dangerous and desperate and the circumstances so hostile to safe keeping. [872 GH, 873A-E]
9.

Once the Supreme Court make it a constitutional mandate and law that no
prisoner shall be handcuffed or fettered routinely or merely for the convenience of
the custodian or escort, the distinction between classes of prisoners become
constitutionally obsolete. Apart from the fact that economic an i social importance
cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise,
a rich criminal or under-trial is in no way different from a poor or pariah convict or
under trial in the matter of security risk. An affluent in custody may be as dangerous
or desperate as an indigent, if not more. He may be more prone to be rescued
than an ordinary person. Therefore, it is arbitrary and irrational to classify
prisoners for purposes of handcuffs, into 'B' class and ordinary class. No one
shall be fettered in any form based on superior class differential as the law heats
them equally. It is brutalising to handcuff a person in public and so is unreasonable to
do so. Of course, the police escort will find it comfortable to fetter their charges
and be at ease, but that is not a relevant consideration. [873E-H]
- 142 -

10.

The only circumstance which


validates incapacitation by irons-an extreme
measure-is that otherwise there is no other reasonable way of preventing his
escape, in the given circumstances. Securing the prisoner being a necessity of
judicial trial, the State must take steps in this behalf. But even here, the
policeman's easy assumption or scary apprehension or subjective satisfaction of
likely escape if fetters are not fitted on the prisoner is not enough. The heavy
deprivation of personal liberty must be justifiable as reasonable restriction in the
circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are
permissible, as not unreasonable, only if every other less cruel means is fraught
with risks or beyond availability. So it is that to be consistent with Arts. 14 an(l 19
handcuffs must be the last refuge, not the routine regimen. If a few more guards
will suffice, then no handcuffs. If a close watch by armed policemen will do, then
no handcuffs. If alternative measures may be provided, then no iron bondage. This is
the legal norm. [874 A-C]
Functional compulsions of security must reach that dismal degree that no
alternative will work except manacles. Our Fundamental Rights are heavily loaded
in favour or personal liberty even in prison, and so, the traditional approaches
without reverence for the worth of the human person are obsolete, although they
die hard. Discipline can be exaggerated by prison keepers; dangerousness can be
physically worked up by escorts and sadistic disposition, where higher awareness
of constitutional rights is absent, may overpower the finer values of dignity and
humanity. [874 D-E]
Therefore, there must first be well-grounded basis for drawing a strong inference
that the prisoner is likely to jump jail or break out of custody or play the
vanishing trick. The belief in this behalf must be based on antecedents which
must be recorded and proneness to violence must be authentic Vague surmises or
general averments that the under-trial is a crook or desperado, rowdy or maniac,
cannot suffice. In short, save in rare cases of concrete proof readily available of
the dangerousness of the prisoner in transit-the onus of proof of which is on him who
puts the person under irons-the police escort will be committing personal assault
or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical
way in which callous policemen, cavalier fashion, handcuff prisoner in their charge,
indifferently keeping them company assured by the thought that the detainee is
under 'iron' restraint. [874 F-H]

11.

Even orders of superiors are no valid justification as constitutional rights cannot be


kept in suspense by superior orders, unless there is material, sufficiently stringent,
to satisfy a reasonable mind that dangerous and desperate is the prisoner who is
- 143 -

being transported and further that by adding to the escort party or other strategy he
cannot be kept under control. It is hard to imagine such situations. It is
unconscionable, indeed outrageous, to make the strange classification between
better class prisoners and ordinary prisoners in the matter of handcuffing. This elitist
concept has no basic except that on the assumption the ordinary Indian is a subcitizen and freedoms under Part III of the Constitution are the privilege of the
upper sector of society. [875 A-C]
Merely because a person is charged with a grave offence he cannot be handcuffed.
He may be very quiet, well-behaved, docile or even timid. Merely because the
offence is serious, the inference of escape-proneness or desperate character does
not follow. Many other conditions mentioned in the Police Manual are totally
incongruous and must fall as unlawful. Tangible testimony, documentary or other,
or desperate behaviour, geared to making good his escape, along will be a valid
ground for handcuffing and fettering, and even this may be avoided by increasing
the strength of the escorts or taking the prisoners in well-protested vans. And
increase in the number of escorts, arming them if necessary special training for
escorts police, transport of prisoners in protected vehicles, are easily available
alternatives. [875 C-E]
12.

Even in cases where, in extreme circumstances handcuffs have to be put on the


prisoner, the escorting authority must record contemporaneously the reasons for
doing so. otherwise under Art. 21 the procedure will be unfair and bad in law.
Nor will mere recording of the reasons do, as that can be a mechanical process
mindlessly made. The
escorting officer, whenever he handcuffs a prisoner
produced in court, must show the reasons so recorded to the Presiding Judge
and get his approval. Otherwise, there is no control over possible arbitrariness
in applying handcuffs and fetters. The minions of the police establishment must
make good their security recipes by getting judicial approval. And, once the court
directs that handcuffs shall be off,
no escorting authority can overrule judicial
direction. This is implicit in Art. 21 which insists upon fairness, reasonableness and
justice in the very procedure which authorises stringent deprivation of life and liberty.
[875 G-H, 876 A]

Maneka Gandhi v. Union of India [1978] 2 SCR 621, and


Sunil Batra v. Delhi Administration [1978] 4 SCC 494;
applied.
13.

Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better
class breed (paragraphs 26.21A and 26.22 of Chapter XXVI) is untenable and
- 144 -

arbitrary and Indian humans shall not be dischotomised and the common run
discriminated against regarding handcuffs. The provisions in para 26.22 that
every under trial who is accused of a non-bailable offence punishable with more
than 3 years prison term shall be routinely handcuffed is violative of Arts. 14, 19
and 21. So also para 26.22 (b) and (c). The nature of the accusation is not the
criterion. The clear and present danger of escape breaking out of the police control
is the determinant. And for this there must be clear material not qlib assumption
record of reasons and judicial oversight and summary hearing and direction by the
Court where the victim is produced. Para 26, 22(1)(d), (e) and (f) also hover
perilously near
unconstitutionality unless read
down
Handcuffs are
not
summary punishment vicariously imposed at police level, at once obnoxious and
irreversible. Armed escorts, worth the salt, can overpower any unarmed undertrial and
extraguards can make up exceptional needs. In very
special
situations, the application of irons cannot be ruled out. The prisoner cannot be
tortured because others will demonstrate or attempt his rescue. The plain law of
under trial custody is thus contrary to unedifying escort practice. [876 C-G]

- 145 -

SPEEDY DISPOSAL
The problem of delay in disposal of cases in not a new problem and has been in
existence since a long time. However, it has now acquired terrifying proportions. On one
hand, it has put the judicial system under strain and on the other hand, it has shaken the
confidence of the people also. Even the Law Commission of India in its Seventy Seventh Report has observed:
"Long delay in the disposal of cases has resulted in huge arrears and a heavy
backlog of pending file in various courts in the country. A bare glance at the statements
of the various types of cases pending in different courts and of the duration for which
those cases have been pending is enough to show the enormity of the problem."
The speedy trial of offences has been the prime objective of the criminal justice
delivery system. It is a desirable goal as long and inordinate delay may defeat the ends
of justice. There are common proverbs - 'delay defeats justice' and ' justice hurried is
justice burried'. Hence, the object of speedy justice should not be at the cost of legal
justice. Thus, it is necessary to strike a reasonable balance between the considerations
of speed and justice.
The right to a speedy trial is first mentioned in that landmark document of
English law, the Magna Carta. The constitutional philosophy propounded as right to
speedy trial has though grown in age by almost two and a half decades, the goal sought
to be achieved is yet a far-off peak. It a concept which deals with speedy disposal of
cases to make the judiciary more effective and to impart justice as fast as possible.
Article 21 declares that no person shall be deprived of his life or
personal liberty except according to the procedure laid by law. Justice Krishna
Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, "Our
justice system even in grave cases, suffers from slow motion syndrome which is
lethal to 'fair trial' whatever the ultimate decision. Speedy justice is a component of
social justice since the community, as a whole, is concerned in the criminal being
condignly and finally punished within a reasonable time and the innocent being
absolved from the inordinate ordeal of criminal proceedings." In Sheela Barse v. Union
of India court reaffirmed that speedy trial to be fundamental right. Right to speedy
trial is a concept gaining recognition and importance day by day.

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SUPREME COURT
HUSSAINARA KHATOON AND OTHERS (I)
Vs.
HOME SECRETARY, STATE OF BIHAR
P.N. BHAGWATI, R.S. PATHAK AND A.D. KOSHAL, J.J.
1.
Bhagwati, J. (for himself and Koshal,J) : This petition for a writ of habeas corpus
discloses state of affairs in regard to administration of justice in the state of Bihar. An
alarmingly large number of men and women, children including, are behind prison bars for
years awaiting trial in Courts of Law. The offences with which some of them are charged are
trivial, which, even if proved, would not warrent punishment for more than a few months,
perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in
jail, deprived of their freedom , for periods ranging from three to ten years without even as
much as their trial having commenced. It is a crying shame on the judicial system which
permits incarceration of men and women for such long periods of time without trial. We are
shouting from housetops about the protection and enforcement of human rights. We are
talking passionately and eloquently about the maintenance and preservation of basic
freedoms. But, are we not denying human rights to these nameless persons who are
languishing in jails for years for offences which perhaps they might ultimately be found not to
have committed? Are we not withholding basic freedoms from these neglected and helpless
human beings who have been condemned to a life of imprisonment and degradation for
years on end? Are expeditious trial and freedom from detention not part of human rights and
basic freedoms? Many of these unfortunate men and women must not even be
remembering when they entered the jail and for what offence. They have over the years
ceased to be human beings : they are mere ticket- numbers. It is high time that the public
conscience is awakened and the government as well as the judiciary begin to realize that in
the dark cells of our prisons there are large number of men and women who are awaiting
patiently , impatiently perhaps , but in vain , for justice - commodity which is tragically
beyond their reach and grasp. Law has become for them an instrument of injustice and they
are helpless and despairing victims of the callousness of the legal and judicial system. The
time has come when the legal and judicial system has to be revamped and restructured so
that such injustice do not occur and disfigure the fair and otherwise luminous face of our
nascent democracy.
There is also one other infirmity of the legal and judicial system which is responsible
for this gross denial of justice to the undertrial prisoners and that is the notorious delay in
disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an
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accused should not even commence for a long number of years. Even a delay of one year in
the commencement of the trial is bad enough : how much worse could it be when the delay is
as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and
there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to
note that in the United States, speedy trial is one of the constitutionally guaranteed rights.
The Sixth Amendment to the Constitution provides that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."
We think that even under our Constitution , though speedy trial is not specifically
enumerated as a fundamental right , it is implicit in the board sweep and content of Article
21 as interpreted by this Court in Maneka Gandhi Vs. Union of India . We have held in that
case that Article 21 confers a fundamental right on every person not to be deprived of his life
or liberty except in accordance with the procedure prescribed by law and it is not enough to
constitute compliance with the requirement of that article that some semblance of a
procedure should be prescribed by law , but that procedure should be 'reasonable , fair and
just'. If a person is deprived of his liberty under a procedure which is not ' reasonable , fair
and just' , such deprivation would be violative of his fundamental right under Article 21 and
he would be entitled to enforce such fundamental right and secure his release. Now
obviously procedure prescribed by law for depriving a person of his liberty cannot be '
reasonable, fair and just' unless that procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not ensure a reasonably quick trial can be
regarded as ' reasonable, fair or just' and it would fall foul of Article 21. There can, therefore ,
be no doubt that speedy trial , and by speedy trial we mean reasonably expeditious trial , is
an integral and essential part of the fundamental right to life and liberty enshrined in Article
21. The question which would , however, arise is as to what would be the consequence if a
person accused of an offence is denied speedy trial and is sought to be deprived of his
liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right
under Article 21. That is a question we shall have to consider when we hear the writ petition
on merits on the adjourned date. But one thing is certain and we cannot impress it too
strongly on the State Government that it is high time that the State Government would also
have to man them by competent judges and whatever is necessary for the purpose of
recruiting competent judges, such as improving their condition of service, would have to be
done by the State Government, if they want to improve the system of administration of justice
and make it an effective instrument for reaching justice to the large masses of people for
whom justice is today a meaningless and empty word.
[ This judgement is also reported in (1980) 1 SCC 81.]

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SUPREME COURT
JOGINDER KUMAR
Vs.
STATE OF U.P. AND OTHERS
M.N. VENKATACHALIAH, C . J. I., S. MOHAN AND
DR. A.S. ANAND, J.J.
ORDER
1.

This is a petition under Article 32 of the Constitution of India. The petitioner is young
man of 28 years of age who has completed his LL.B. has enrolled himself as an
advocate. The Senior Superintendent of Police , Ghaziabad , respondent No.4 called
the petitioner in his office for making some enquiries in some case. The petitioner on
7.1.1994 at about 10 O' clock appeared personally along with his brothers Shri
Mangeram Chauudhry, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh
before the respondent No. 4. Respondent No. 4 kept the petitioner in his custody.
When the brother of the petitioner made enquires about the petitioner, he was told that
the petitioner will be set free in the evening after making some enquiries in connection
with a case.

2.

On 7.1.1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of
the intentions of respondent No.4 sent a telegram to the Chief Minister of U.P.
apprehending his brother's implication in some criminal case and also further
apprehending the petitioner being shot dead in fake encounter.

3.

In spite of the frequent enquiries , the whereabouts of the petitioner could not be
located. On the evening of 7.1.1994, it came to be known that petitioner is detained in
illegal custody of 5th respondent, SHO, P.S. Mussorie.

4.

On 8.1.1994, it was informed that the 5th respondent was keeping the petitioner in
detention to make to make further enquiries in some case. So as far petitioner has not
been produced before the concerned Magistrate. Instead the 5th respondent directed
the relative of the petitioner to approach the 4th respondent S.S.P. Ghaziabad for
release of the petitioner.

5.

On 9.1.1994, in the evening when the brother of petitioner along with relatives went to
P.S. Mussorie to enquire about the well- being of his brother, it was found that the
petitioner had been taken to some undisclosed destination. Under these
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circumstances, the present petition has been preferred for the release of Joginder
Kumar, the petitioner herein.
6.

This Court on 11.1.1994 ordered notice to state of U.P. as well as S.S.P. Ghaziabad.

7.

The said Senior Superintendent of Police along with petitioner appeared before this
Court on 14.1.1994. According to him , the petitioner has been released. To question
as to why the petitioner was detained for a period of 5 days, he would submit that the
petitioner was not in detention at all. His help was taken for detecting some cases
relating to abduction and the petitioner was helpful in co-operating with the Police.
Therefore, there is no question of detaining him .Though , as on today the relief in
habeas corpus petition cannot be put an end to the writ petition on this score. Where
was the need to detain the petitioner for five days; if really the petitioner was not in
detention , why was not this Court informed are some questions which remain
unanswered. If really there was detention for five days , for what reason was he
detained ? These matters require to be enquired into . Therefore, we direct the learned
District Judge, Ghaziabad to make a detailed enquiry and submit his report within four
weeks from the date of receipt of this order.

8.

The horizon of human rights is expanding. At the same time, the crime rate is also
increasing. Of late .this court has been receiving complaints about violation of human
rights because of indiscriminate arrests. How are we to strike a balance between the
two ?

9.

A realistic approach should be made in this direction. The law of arrest is one of
balancing individual rights, liberties and privileges, on the one hand and individual
duties , obligations and responsibilities on the other ; of weighing and balancing the
rights, liberties and privileges of the single individual and those of individuals
collectively ; of simply deciding what is wanted and where to put the weight and the
emphasis ; of deciding which comes first - the criminal or society, the law violator or the
law abider ; of meeting the challenge which Mr. Justice Cardozo so forthrightly met
when he wrestled with a similar task of balancing individual rights against society's
rights and wisely held that the exclusion rule was bad law, that society came first , and
the criminal should not go free because the constable blundered. In People Vs.
Defore, (1926) N Y 13, 24, 150 NE 585,589, Justice Cardozo observed:
"The question is whether protection for the individual would not be gained at a
disproportionate loss of protection for society. On the one side is the social need that
crime shall be repressed. On the other, the social need that law shall not be flouted by
the insolence of office. There are dangers in any choice. The rule of the Adams Case (
People Vs. Adams, (1903) 176 NY 351 , 68 NE 636 strikes a balance between
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opposing interests. We must hold it to be the law until those organs of government by
which a change of public policy is normally effected shall give notice to the Courts that
change has come to pass."
10.

To the same effect is the statement by Judge Learned Hand, In Re Fried, 161 F 2d 453,
465 (2d Cir. 1947) :
"The protection of the individual from oppression and abuse by the Police and other
enforcing officers is indeed a major interest in a free society; but so is the effective
prosecution of crime, an interest which at times seems to be forgotten. Perfection is
impossible; like other human institutions criminal proceedings must be compromise."

11.

The quality of a nation's civilisation can be largely measured by the methods it uses in
the enforcement of criminal law.

12.

This Court in Smt. Nandini Satpathy Vs. P.L. Dani ( AIR 1978 SC 1025) at page 1032
quoting Lewis Mayers stated :
The paradox has been put sharply by Lewis Mayers :
" To strick the balance between the needs of law enforcement on the one hand and the
protection of the citizen from oppression and injustice at the hands of the lawenforcement machinery on the other is a perennial problem of statecraft The
pendulum over the years has swung to the right."
Again in para 21 at page 1033 it was observed:
" We have earlier spoken of the conflicting claims requiring reconciliation. Speaking
pragmatically, there exist a rivalry between societal interest in effecting crime
detection and constitutional rights which accused individuals possess. Emphasis
may shift depending on circumstances, in balancing these interests as has been
happening in America. Since Miranda ( 1966 334 US 436 ) there has been retreat
from stress on protection of the accused and gravitation towards society's interest
convicting law - breakers .Currently , the trend in the American Jurisdiction according
to legal journals, is that ' respect for (constitutional) principles is eroded when they leap
their proper bounds to interfere with the legitimate interests of society in enforcement
of its laws---' ( Couch Vs. United States (1972) 409 US 322 336). On Constitutional
perspective has , therefore, to be relative and cannot afford to be absolutist, especially
when torture technology, crime escalation and other social variables affect the
application of principles in producing human justice."

13.

The National Police Commission in its Third Report referring to the quality of arrests by
the Police in India mentioned power of arrest as one of the chief sources of corruption
in the police. The report suggested that, by the large, nearly 60% of the arrests were
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either unnecessary or unjustified and such unjustified police action accounted for
43.2% of the expenditure of the jails. The said commission in its third report at page 31
observed thus:
"It is obvious that a major portion of the arrests were connected with very minor
prosecutions and cannot, therefore, be regarded as quite necessary from the point of
view of crime prevention.
Continued detention in jail of the persons so arrested has also meant avoidable
expenditure on their maintenance. In the above period it was estimated that 43.2% of
the expenditure in the connected jails was over such prisoners only who in the ultimate
analysis need not have been upon the arrested at all."
14.

As on today, arrest with or without warrant depending upon the circumstances of a


particular case is governed by the Code of Criminal Procedure.

15.

Whenever a public servant is arrested that a matter should be intimated to the superior
officers, if possible , before the arrest and in any case, immediately after the arrest. In
cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent
to the officer commanding the unit to which the member belongs. It should be done
immediately after the arrest is effcted.

17.

With regard to the apprehension of juvenile offenders Section 58 of the Code of


Criminal Procedure lays down as under:
" Officers in charge of police stations shall report to the District Magistrate or ,if he so
directs, to the Sub- Divisional Magistrate, the cases of all persons arrested without
warrant, within the limit of their respective stations whether such persons have been
admitted to bail or otherwise."

18.

Section 19 (a) of the Children Act makes the following provision :


" The parent or guardian of the child , if he can be found, of such arrest and direct him to
be present at the children's Court before which the child appear.'

23.

In India , Third Report of the National Police Commission at page 32 also suggested :
"-------An arrest during the investigation of the cognizable case may be considered
justified in one or other of the following circumstances :
i)

The case involves a grave offence like murder, dacoity, robbery, rape etc., and it
is necessary to arrest the accused and bring his movements under restraint to
infuse confidence among the terror stricken victims.

ii)

The accused is likely to abscond and evade the process of law.

iii)

The accused is given to violent behaviour and is likely to commit further offences
- 152 -

unless his movements are brought under restraint.


v)

The accused is a habitual offender and unless kept in custody he is likely to


commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer


making an arrest should also record in the case diary the reason for making the arrest ,
thereby clarifying his conformity to the specified guidelines.-----"
24.

The above guidelines are merely the incidents of personal liberty guaranteed under
the Constitution of India. No arrest can be made because it is lawful for the police
officer to do so. The existence of the power to arrest is one thing. The justification for
the exercise of it is quite another. The police officer must be able to justify the arrest
apart from his power to do so. Arrest and detention in lockup of a person can cause
incalculable harm to the reputation and self- esteem of a person. No arrest can be
made in a routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent for a police officer in the interest of protection of
the constitutional rights of a citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached after some investigation as
to the genuineness and bonafides of a complaint and a reasonable belief both as to
the person's complicity and even so as to the need to effect arrest. Denying a person
of his liberty is a serious matter. The recommendations of the Police Commission
merely reflect the constitutional concomitants of the fundamental right to personal
liberty and freedom. A Person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some reasonable justification in the opinion of
the officer effecting the arrest is necessary and justified. Except in heinous offences
issues notice to person to attend the Station House and not to leave station without
permission would do.

25.

Then , there is the right to have someone informed. That right of the arrested person,
upon request, to have someone informed and to consult privately with a lawyer was
recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England
('Civil Actions Against the Police' - Richard Clayton and Hugh Tomlinson; page 313).
That Section provides:
" Where a person has been arrested and is being held in custody in a police station or
other premises he shall be entitled, if he so requests, to have one friend or relative or
other person who is known to him or who is likely to take an interest in his welfare told ,
as soon as is practicable except to the extent that delay is permitted by this Section,
that he has been arrested and is being detained there."

26.

These rights are inherent in Articles 21 and 22 (1) of the Constitution and required to be
- 153 -

recognised and scrupulously protected. For effective enforcement of these


fundamental rights , we issue the following requirements :
i)

An arrested person being held in custody is entitled, if he so requests to have


one friend relative or other person who is known to him or likely to take an
interest in his welfare told as far as is practicable that he has been arrested and
where he is being detained.

ii)

The police officer shall inform the arrested person when he is brought to the
police station of his right.

27.

It shall be the duty of the Magistrate, before whom the arrested person is produced, to
satisfy himself that these requirements have been complied with.

28.

The above requirements shall be followed in all cases of arrest till legal; provisions are
made in this behalf. These requirements shall be in addition to the rights of the
arrested persons found in the various Police Manuals.

29.

These requirements are not exhaustive. The Directors General of Police of all the
States in India shall issue necessary instructions requiring due observance of these
requirements . In addition , departmental instruction shall also be issued that a police
officer making an arrest should also record in the case diary, the reasons for making
the arrest.

30.

Order accordingly.

[This judgement is also reported in (1994) Cri. L J 1981.]

- 154 -

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