REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1572                      2008 (Arising out of S.L.P. (Criminal) No.1620 of 2007)

BABLOO PASI — APPELLANT

VERSUS

STATE OF JHARKHAND & ANR. — RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2.    This appeal, by special leave, is directed against

the  judgment  and  order  dated  21st December,  2006

rendered by the High Court of Jharkhand at Ranchi in

Criminal Revision No. 836 of 2006.  By the impugned

order, the High Court has allowed the revision petition

preferred  by  the  accused  under  Section  53  of  the

Juvenile Justice (Care and Protection of Children) Act,

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2000 (for short ‘the Act’) against the order passed by

the Juvenile Justice Board, Dumka (hereinafter referred

to as ‘the Board’).  The learned Single Judge has held

that on the date of commission of the alleged offences,

the accused was a “juvenile” within the meaning of the

Act.

3. Rajesh Mahatha, the accused and respondent No.2 in

this  appeal,  was  apprehended  for  having  committed

offences  under  Sections  304B  and  306  of  the  Indian

Penal Code, 1860 (for short ‘I.P.C.’), in relation to

the death of his wife, on the basis of the statement

made to the police by the brother of the deceased, the

appellant herein.  It appears that when the accused was

produced before the Chief Judicial Magistrate, Deoghar,

he claimed himself to be a “juvenile” as having not

attained  the  age  of  eighteen  years  and,  therefore,

entitled  to  the  protection  and  privileges  under  the

Act.  Accordingly,  he  was  sent  to  the  Child

Rehabilitation Centre, Dumka.  Since the claim of the

accused was disputed on behalf of the prosecution, on

8th February,  2006,  the  Chief  Judicial  Magistrate

directed the accused to produce evidence/certificate in

support of his claim, which he failed to do.  It seems

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that without recording any opinion whether the accused

was a Juvenile or not, the Magistrate referred him to

the Board.  Since the accused failed to produce any

evidence regarding his age, the Board referred him to a

Medical Board for examination and determination of his

age.  Taking  into  consideration,  the  documentary

evidence adduced by the prosecution and observing his

physical built up, the Board concluded that the accused

was  above  eighteen  years  of  age  on  the  date  of

occurrence; was not a juvenile and, therefore, was not

required to be dealt with under the Act.  Accordingly,

the Child Rehabilitation Centre, Dumka was directed to

transfer  the  accused  to  the  regular  jail  with  a

direction to its Superintendent to produce the accused

before the Court of Chief Judicial Magistrate.  The

order passed by the Board was challenged by the accused

in the High Court.  The High Court was of the view that

the Board had ignored the opinion of the Medical Board

obtained in terms of Rule 22(5)(iv) of the Jharkhand

Juvenile  Justice  (Care  and  Protection  of  Children)

Rules, 2003 (for short ‘the Rules’), wherein the age of

the accused was shown as 17-18 years.  Thus, exercising

its revisional jurisdiction, the High Court allowed the

revision petition; quashed the order of the Board and

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held  that  at  the  relevant  time  the  accused  was  a

juvenile.  The brother of the victim has preferred this

appeal by special leave.   

4. We have heard learned counsel for the parties.

5. Learned  counsel  appearing  for  the  appellant

submitted that the order of the High Court having been

passed  without  notice  to  the  appellant,  who  was

admittedly  a  party  in  the  revision  petition,  is

violative of the principles of natural justice as also

the statutory provisions, is illegal and deserves to be

set aside on this short ground alone.  In support of

the proposition that an adverse order cannot be passed

without  hearing  the  party  concerned,  reliance  was

placed on a decision of this Court in P. Sundarrajan &

Ors. Vs. R. Vidhya Sekar1.  On merits, it was contended

that  the  High  Court  has  failed  to  consider  in  its

correct  perspective  the  scope  of  Rule  22  (5).

According to the learned counsel, the medical opinion

obtained under the said rule is only a guiding factor

and not the sole criterion for determination of age

and, therefore, before returning any finding on the age

of the accused, the High Court could not ignore other 1  (2004) 13 SCC 472

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relevant factors and the evidence on record.  It was

also  pleaded  that  the  scope  of  the  revisional

jurisdiction being limited, without pointing out any

material irregularity committed by the Board, the High

court erred in interfering with a well reasoned order

passed by the Board, more so when the accused chose not

to avail of remedy available to him by way of an appeal

under  Section  52  of  the  Act,  whereunder  the

jurisdiction  of  the  High  Court  is  much  wider.   In

support  of  the  contention  that  the  powers  of  the

revisional court are limited and should be exercised

sparingly and cautiously, reliance was placed on the

decisions  of  this  court  in  Krishnan  &  Anr.  Vs.

Krishnaveni & Anr.2,  State of Maharashtra & Anr.  Vs.

Jagmohan Singh Kuldip Singh Anand & Ors.3.  Reference

was  also  made  to  State  of  A.P.  Vs.  M.  Poshetty4,

wherein  this  Court  had  adversely  commented  on  High

Court’s interference with the concurrent findings of

fact,  entered  by  the  trial  court,  in  exercise  of

revisional powers, without recording any reasons.   It

was,  thus,  argued  that  the  High  Court  exceeded  its

powers of revisionary jurisdiction.  2  (1997) 4 SCC 241 3  (2004) 7 SCC 659 4  (2001) 10 SCC 629

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6.Learned counsel appearing on behalf of the accused while strenuously supporting the order passed by the

High  Court  submitted  that  since  the  entire  relevant

material  was  available  on  record,  there  was  no

necessity for the High Court to issue notice to the

appellant/complainant.  

7. Having bestowed our anxious consideration to the

material on record, in our judgment, the order of the

High Court as also by the Board are unsustainable in

law as well as on facts.

8. Section  52  of  the  Act  provides  that  any  person

aggrieved by an order made by a competent authority

under the Act may prefer an appeal to the Court of

Sessions.  Section 53 of the Act confers on the High

Court the revisional jurisdiction to satisfy itself as

to the legality or propriety of any order passed by the

competent authority or Court of Sessions.  The Section

reads as under:

“53.Revision.-  The  High  Court  may,  at  any time,  either  of  its  own  motion  or  on  an application received in this behalf, call for the  record  of  any  proceeding  in  which  any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any

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such order and may pass such order in relation thereto as it thinks fit:

Provided that the High Court shall not pass an order under this section prejudicial to any person  without  giving  him  a  reasonable opportunity of being heard.”

9. From a bare reading of proviso to the Section, it

is  plain  that  in  exercise  of  its  revisional

jurisdiction  the  High  Court  cannot  pass  an  order,

prejudicial  to  any  person  without  affording  him  a

reasonable  opportunity  of  being  heard.   At  this

juncture, it would be profitable to note that Section

54  of  the  Act  also  prescribes  the  procedure  to  be

followed  while  dealing  with  inquiries,  appeals  and

revisions  under  the  Act.   Sub-section  (2)  thereof

stipulates that save as otherwise expressly provided

under the Act, the procedure to be followed in hearing

revisions under the Act, shall be as far as practicable

in  accordance  with  the  provisions  of  the  Code  of

Criminal Procedure, 1973 (for short ‘the Code’).  Sub-

section (2) of Section 401 of the Code contemplates

that no order under the said Section shall be made to

the prejudice of the accused or other person unless he has had an opportunity of being heard either personally

or by pleader in his own defence.

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10.Furthermore, by now it is well settled that save in

certain exceptional situations, the principle of  audi

alteram partem mandates that no one shall be condemned

unheard.  It is a part of rules of natural justice and

the soul of natural justice is `fair play in action’,

which demands that before any prejudicial or adverse

order is passed or action is taken against a person, he

must be given an opportunity to be heard.

11.The  question  for  consideration  is  that  when  the statutory provisions mandate and principles of natural

justice demand a pre-decisional hearing, whether or not

the  High  Court  was  justified  in  not  granting  an

opportunity  of  hearing  to  the  appellant/complainant?

In  our  opinion,  having  regard  to  the  nature  of

controversy before the High Court and the scheme of the

relevant statutory provisions whereunder the High Court

was  exercising  its  jurisdiction,  the  `fairness  in

action’ did demand that the Complainant was given an

opportunity  of  hearing  in  the  Revision  petition

preferred by the accused.  Moreover, he was impleaded

as a party respondent and was obviously prejudiced by

the order passed by the High Court when the accused was

declared  to be a juvenile.  We have, therefore, no

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hesitation in holding that the High Court was clearly

in error in reversing the order passed by the Board

without  giving  an  opportunity  of  hearing  to  the

appellant.  Accordingly, we uphold the contention of

learned counsel for the appellant that the order of the

High  Court  deserves  to  be  set  aside  on  this  short

question alone.   

12.We may now take up the pivotal point, viz., whether or not the Board had applied the correct parameters for

determining the age of the accused, who is claiming to

be a juvenile on the date of occurrence.  Determination

of  age  of  a  delinquent,  particularly  in  borderline

cases, is rather a complex exercise.  The Act as such

does  not  lay  down  any  fixed  norms,  which  could  be

applied  for determining the age of a person.  Sub-

Section (1) of the Act provides for presumption and

determination of age and reads thus:

“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

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juvenile or the child or not, stating his age as nearly as may be. (2) xxx xxx xxx”

13.From a bare reading of the provision, it is clear

that it merely provides that when it appears to the

competent authority viz., the Board, that the person

brought before it is a juvenile, The Board is obliged

to make an enquiry as to the age of that person; for

that purpose it shall take evidence as may be necessary

and  then  record  a  finding  whether  the  person  in

question is a juvenile or not.  Explaining the scope

and purpose of Section 32 of the Juvenile Justice Act,

1986 which is almost  pari materia with Section 49 of

the Act in Bhola Bhagat Vs. State of Bihar5, this Court

had observed as under:-

“…..when  a  plea  is  raised  on  behalf  of  an accused  that  he  was  a  “child”  within  the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry  itself  for  determination  of  the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially- oriented legislation, it is an obligation of the  court  where  such  a  plea  is  raised  to

5  (1997) 8 SCC 720

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examine that plea with care and it cannot fold its  hands  and  without  returning  a  positive finding regarding that plea, deny the benefit of  the provisions to an accused. The court must hold  an  enquiry  and  return  a  finding regarding the age, one way or the other.”

14. Nevertheless, in Jitendra Ram alias Jitu Vs. State

of Jharkhand6, the Court sounded a note of caution that

the aforestated observations in  Bhola Bhagat (supra) would not mean that a person who is not entitled to the

benefit of the said Act would be dealt with leniently

only because such a plea is raised.  Each plea must be

judged  on  its  own  merit  and  each  case  has  to  be

considered on the basis of the materials brought on

record.

15.At this juncture, it is relevant to note that in exercise of power conferred by Section 68 of the Act,

the  State  Government  of  Jharkhand  has  framed  the

Jharkhand  Juvenile  Justice  (Care  and  Protection  of

Children) Rules, 2003.  Rule 22 thereof lays down the

procedure  to  be  followed  by  a  Board  in  holding

enquiries and the determination of age.  Sub-Rule (5)

of the said Rule which is material for the present case

reads thus:- 6  (2006) 9 SCC 428

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“22. Procedure to be followed by a Board in holding  inquiries  and  the  determination  of age.- (1) ……… (5) In every case concerning a juvenile or a child, the Board shall either obtain.- (i) a  birth  certificate  given  by  a

corporation or a municipal authority; or (ii) a  date  of  birth  certificate  from  the

school first attended; or (iii)matriculation or equivalent certificates,

if available; and (iv) in the absence of (i) to (iii) above, the

medical  opinion  by  a  duly  constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to  be  recorded  by  such  Medical  Board, (regarding  his  age  and,  when  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).”

16.Thus, as per Rule 22, in the absence of birth or

matriculation  certificates,  in  order  to  record  a

finding in respect of age of a person, the Board is

required to obtain the opinion of a duly constituted

Medical Board.  It is clear from a bare reading of the

Rule that although the Board is bound to obtain the

opinion of the Medical Board but the opinion per se is

not a conclusive proof of age of the person concerned.

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It is no more than an opinion.  More so, when even the

Medico-Legal opinion is that owing to the variation in

climatic,  dietic,  hereditary  and  other  factors,

affecting  the  people  of  different  States  in  the

country, it would be imprudent to formulate a uniform

standard for the determination of the age.  True, that

a  Medical  Board’s  opinion  based  on  the  radiological

examination is a useful guiding factor for determining

the  age  of  a  person  but  is  not  incontrovertible.

Commenting on the evidentiary value of the opinion of a

doctor,  based  on  x-ray  tests,  as  to  the  age  of  a

person, in Ramdeo Chauhan alias Raj Nath Vs. State of

Assam7, R.P. Sethi, J., speaking for the majority in a

three-Judge Bench, had observed that:-

“….An X-ray ossification test may provide a surer  basis  for  determining  the  age  of  an individual  than  the  opinion  of  a  medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned.  Too much  of  reliance  cannot  be  placed  upon textbooks,  on  medical  jurisprudence  and toxicology  while  determining  the  age  of  an accused.   In this vast country with varied latitudes,  heights,  environment,  vegetation and nutrition, the height and weight cannot be expected to be uniform.”

7  (2001) 5 SCC 714

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17.It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine

the  age  of  a  person.   The  date  of  birth  is  to  be

determined on the basis of material on record and on

appreciation  of  evidence  adduced  by  the  parties.

The Medical evidence as to the age of a person, though

a very useful guiding factor, is not conclusive and has

to be considered along with other cogent evidence.

18.It is true that in  Arnit Das Vs.  State of Bihar8,

this  Court  has,  on  a  review  of  judicial  opinion,

observed  that  while  dealing  with  a  question  of

determination of age of an accused, for the purpose of

finding out whether he is a juvenile or not, a hyper-

technical  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 same evidence,

the Court should lean in favour of holding the accused

to be a juvenile in borderline cases.  We are also not

oblivious of the fact that being a welfare legislation,

the Courts should be zealous to see that a juvenile

derives full benefits of the provisions of the Act but

8  (2000) 5 SCC 488

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at the same time it is also imperative for the courts

to ensure that the protection and privileges under the

Act are not misused by unscrupulous persons to escape

punishments for having committed serious offences.

19.Bearing in mind these broad principles, we may now advert to the facts at hand. Indubitably, neither a

date  of  birth  certificate  nor  a  matriculation  or

equivalent  certificate  from  a  school  was  produced

before the Board and, therefore, the Board was required

to  obtain  a  medical  opinion  of  a  duly  constituted

Medical  Board,  which  was  done.   The  Medical  Board

carried out the ossification tests of the accused and

opined  that  his  age  was  between  17-18  years.

Therefore, with a margin of one year, as stipulated in

Rule 22(5)(iv), his age could also be 16 years or 19

years. In addition to the said opinion, the prosecution

also  placed before the Board, a Voters List of the

Constituency  of  Deoghar  for  the  year  2005.  In  that

list, the name of the accused appeared at Sl. No. 317

and his age was recorded as 20 years.  Taking into

consideration this material and the physical appearance

of the accused, the Board opined as under:-

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“Applicant  Rajesh  Mahatha  is  present  before the Juvenile Justice Board.  By observing his physical built up, it appears that he is an adult.  Also in the medical examination report his age has been shown as 17-18 years. His adulthood can be verified from the Voter List  2005 where the applicant age has been shown as 20 years.  It is also the opinion of the  other  Board  members  that  the  applicant Rajesh Mahatha appears to be adult and in the background of the date of the incident he was an adult. Therefore, by the concurring opinion of the members  of  the  Board,  it  is  declared  that Rajesh  Mahatha  the  accused  applicant  is  an “adult” of more than 18 years of age in the background of the date of the occurrence of the incident.”

20.As  noted  supra,  the  High  Court  has  reversed  the opinion of the Board.  The relevant portion of the High

Court’s order reads thus:-

“Having regard to the facts and circumstances of the case, I find that Jharkhand Juvenile Justice  (Care  and  Protection  of  Children) Rules  2003  has  devised  Rule  22  being  the procedure  to  be  followed  by  the  Juvenile Justice  Board  in  holding  enquiry  in determination of the age of a Juvenile Rule 22 (5)  (iv)  provides  that  the  opinion  of  the Medical Board, duly constituted, would be the guiding factor in determination of the age of a Juvenile, subject to margin of one year in absence of the birth certificate of Juvenile in conflict with law.  I find that the said provision  of  Rule  has  been  ignored  by  the Juvenile  Justice  Board  as  well  as  by  the Session Court.

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In the circumstance, the order impugned passed by  the  Juvenile  Justice  Board  on  3.6.2006 whereby  and  whereunder  the  age  of  the petitioner was determined more than 18 years is set aside and the 1st Addl. Sessions Judge, Deoghar is directed to pass appropriate order returning back the records of the Juvenile to the Juvenile Justice Board in accordance with law as early as possible.”   

21.From the afore-extracted orders of the Board as well as the High Court, it is manifest that the question of

determination of age of the accused has been decided by

both  the  Courts  in  a  casual  manner,  ignoring  the

principles of law on the subject.

22.Insofar as the Board is concerned, it is evident that

it has mechanically accepted the entry in Voters List

as conclusive without appreciating its probative value

in terms of the provisions of Section 35 of the Indian

Evidence Act, 1872. Section 35 of the said Act lays

down  that an entry in any public or other official

book,  register,  record,  stating  a  fact  in  issue  or

relevant fact made by a public servant in the discharge

of his official duty especially enjoined by the law of

the country is itself a relevant fact.  It is trite

that to render a document admissible under Section 35,

three  conditions  have  to  be  satisfied,  namely:  (i)

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entry that is relied on must be one in a public or

other official book, register or record; (ii) it must

be an entry stating a fact in issue or a relevant fact,

and  (iii)  it  must  be  made  by  a  public  servant  in

discharge of his official duties, or in performance of

his duty especially 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. (See: Birad Mal Singhvi Vs.

Anand Purohit9)  

23.Therefore,  on  facts  at  hand,  in  the  absence  of evidence  to show on what material the entry in the

Voters List in the name of the accused was made, a mere

production  of  a  copy  of  the  Voters  List,  though  a

public  document,  in  terms  of  Section  35,  was  not

sufficient to prove the age of the accused.  Similarly,

though a reference to the report of the Medical Board,

showing the age of the accused as 17-18 years, has been

made but there is no indication in the order whether

9  1988 (Supp) SCC 604

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the  Board  had  summoned  any  of  the  members  of  the

Medical  Board  and  recorded  their  statement.  It  also

appears that the physical appearance of the accused,

has weighed with the Board in coming to the afore-noted

conclusion, which again may not be a decisive factor to

determine the age of a delinquent.  Insofar as the High

Court is concerned, there is no indication in its order

as to in what manner Rule 22(5)(iv) has been ignored by

the  Board.   The  learned  Judge  seems  also  to  have

accepted the opinion of the Medical Board in terms of

the said Rule as conclusive.  Therefore, the afore-

stated ground on which the High Court has set aside the

opinion of the Board and holding the accused to be a

juvenile, cannot be sustained.

24.In  our  judgment,  apart  from  the  fact  that  the impugned  order  suffers  from  the  basic  infirmity  of

being violative of the principles of natural justice,

it cannot be sustained on merits as well. At the same

time, we are also convinced that the order of the Board

falls short of a proper enquiry as envisaged in Section

49 of the Act.

25.For  the  aforementioned  reasons,  the  appeal  is allowed  and  the  matter  is  remitted  to  the  Chief

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Judicial Magistrate, Deoghar, heading the Board, with a

direction to re-determine the age of the accused, as on

the  date  of  commission  of  the  alleged  offences,  in

accordance with law, enunciated above.  In the event he

is found to be a juvenile within the meaning of the

Act, he shall be dealt with accordingly.  However, if

he is not found to be a juvenile, he would face trial

under the ordinary criminal law.  The inquiry shall be

completed expeditiously, preferably within six months

of receipt of a copy of this judgment.

.....................J.   (C.K. THAKKER)  

.....................J.   (D.K. JAIN)

NEW DELHI; OCTOBER 3, 2008.

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