Full Judgment Text
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
J U D G M E N T
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
2
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
3
committed for trial, the Additional Sessions Judge,
rd
Didwana, by his order dated 3 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 juvenile, directed that he be tried by the
Juvenile Justice Board, Ajmer, Rajasthan.
4.
This appeal has been filed against the common
th
order dated 7 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
4
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,
th
Samvat Year 2039, which is equivalent to 17
October, 1982, whereas the offence was alleged
th
to have been committed on 30 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
5
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
6
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 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
7
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 :
8
“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.
9
11. Mr. Jain submitted that since the incident is
alleged to have taken place as far back as on
th
30 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 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
10
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
11
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
12
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;
(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;
13
(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.”
st
The said Act ultimately came into force on 1
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
14
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
15
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:-
“ 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
16
(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.”
(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
17
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 hereinbelow:
“ 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
18
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
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
19
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
20
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.”
Sub-Rules (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 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
21
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
st
committed prior to 1 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
st
date of commission of the offence prior to 1
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
22
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
23
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 pari
materia 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.
21. The question which fell for decision in Arnit
Das’s case (supra), once again fell for the
24
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
25
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
26
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
27
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) 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
st
pending on 1 April, 2001, when the Juvenile
Justice Act, 2000, came into force. The same is,
accordingly, reproduced hereinbelow :
“ 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
28
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
29
the applicability of the Juvenile Justice Act,
st
2000, to cases pending on 1 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
st
juvenile ceased to be a juvenile on or before 1
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
30
aside the sentence imposed and forward the case to
the Juvenile Justice Board 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
st
Courts prior to 1 April, 2001, when the Juvenile
31
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
nd
relevant since they have been rendered prior to 22
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.
32
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
33
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 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
34
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 thereunder 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
35
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
36
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 hereinbelow :
“ 49. Presumption and determination of
age. -(1) Where it appears to a competent
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.”
37
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.
Sub-Section (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 of any 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 :
38
(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
39
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 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,
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
40
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
st
prior to 1 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,
41
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
42
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.
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
43
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 thereunder, even if the juvenile had
44
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.
45
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.
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
46
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)
47
________________J.
(CYRIAC JOSEPH)
New Delhi
Dated: 05.05.2009