REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   860    OF 2010 (Arising out of S.L.P.(Crl.) No.102 of 2010)

Dharambir ... Appellant

VERSUS

State (NCT of Delhi) & Anr. ... Respondents

J U D G M E N T

Leave granted.

2. This appeal is directed against the final judgment and order dated 6th  

November, 2009, delivered by the High Court of Delhi at New Delhi, in  

Criminal  Appeal  No.140  of  1994.   By  the  impugned  judgment,  while  

acquitting one of the co-convicts, the High Court has upheld the conviction  

of the appellant for offences punishable under Sections 302 and 307 read  

with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”), for  

committing  murder  of  one  of  their  close  relative  and for  attempting to  

murder his brother.  The appellant has been sentenced to imprisonment for  

life under Sections 302/34 IPC and to pay a fine of Rs.500/-.  For offence  

under  Section  307/34  IPC,  he  has  been  sentenced  to  undergo  rigorous

imprisonment for a term of seven years and to pay a fine of Rs.500/-, with  

default stipulation.

3. When the  matter  came up for  motion  hearing,  Mr.  K.  Parasaran,  

learned senior counsel, appearing for the appellant, submitted at the very  

outset  that  since  at  the  time  of  commission  of  the  said  offences,  the  

appellant had not completed eighteen years of age, he was a juvenile within  

the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of  

Children) Act, 2000 (for short “the Act of 2000”), an inquiry in terms of  

Section 7A of the Act of 2000 has to be made so as to determine the age of  

the appellant.  In support of the submission, learned counsel relied on the  

appellant’s school leaving certificate dated 2nd December, 2009.

4. In  view  of  the  said  claim,  while  issuing  notice  to  the  State,  a  

Registrar of this Court was directed to make an inquiry and determine the  

age of the appellant on the date of commission of the offences.  Pursuant to  

the  said  order,  the  Registrar  (Judicial)  of  this  Court  has  conducted  a  

detailed  inquiry  by  recording  the  statements  of  the  Principal  and  other  

office  bearers  of  three  schools  where  the  appellant  had studied and has  

reported that as on the date when the offences were committed, i.e., 25th  

August, 1991, the appellant was of the age of 16 years, 9 months and 8  

days.  The matter has now been placed before us along with the report.

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5. We have heard learned senior counsel  appearing on behalf  of the  

appellant  and  Mr.  H.P.  Raval,  learned  Additional  Solicitor  General  on  

behalf of the State.  

6. The question for determination is whether or not the appellant, who  

was admittedly not a juvenile within the meaning of the Juvenile Justice  

Act, 1986 (for short “the 1986 Act”) when the offences were committed but  

had not completed 18 years of age on that date, will be governed by the Act  

of 2000 and be declared as a juvenile in relation to the offences alleged to  

have been committed by him?  

7. Before adverting to the question, we may note that the issue with  

regard to the date, relevant for determining the applicability of either of the  

two  Acts,  insofar  as  the  age  of  the  accused,  who  claims  to  be  a  

juvenile/child,  is  concerned,  is  no  longer  res  integra.    On account  of  

divergence  of  views  on  the  point  in  Umesh  Chandra  Vs.  State  of   

Rajasthan1 and Arnit Das Vs.  State of Bihar2, the matter was referred to  

the Constitution Bench in  Pratap Singh  Vs.  State of Jharkhand & Anr.3  

Affirming the view taken by a Bench of three Judges in Umesh Chandra’s  

case  (supra),  the  Constitution  Bench  held  that  the  relevant  date  for  

determining the  age  of  the  accused,  who  claims to  be  a  juvenile/child,  

would be the date on which the offence has been committed and not the  

date when he is produced before the authority or in the court. 1 (1982) 2 SCC 202 2 (2000) 5 SCC 488 3 (2005) 3 SCC 551

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8. In the same judgment, the Bench also dealt with the question as to  

whether the Act of 2000 will be applicable in a case where proceedings  

were initiated under the 1986 Act and were pending when the Act of 2000  

was enacted with effect from 1st April, 2001.  Taking into consideration the  

provisions of Sections 3 and 20 along with the definition of “juvenile” in  

Section 2(k) of the Act of 2000, as contrasted with the definition of a male  

juvenile in Section 2(h) of the 1986 Act, by majority, it was held that the  

Act  of  2000  would  be  applicable  in  a  pending  proceeding  in  any  

Court/Authority initiated under the 1986 Act and is pending when the Act  

of 2000 came into force and the person concerned had not completed 18  

years of age as on 1st April, 2001. In other words, it was held that a male  

offender, against whom proceedings had been initiated under the 1986 Act  

in any Court/Authority and had not completed the age of 18 years as on 1st  

April, 2001, would be governed by the provisions of the Act of 2000.  

9. The decision in  Pratap Singh’s case (supra) led to substitution of  

Section 2(l); the insertion of Section 7A and Proviso and Explanation to  

Section 20 of the Act of 2000 by Act No.33 of 2006 as also introduction of  

the  Juvenile  Justice  (Care  and  Protection  of  Children)  Rules,  2007  

containing  Rule12,  which  lays  down  the  procedure  to  be  followed  in  

determination of age of a child or a juvenile.    

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10. Section 20 of the Act of 2000, the pivotal provision, as amended,  

reads as follows:

“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.”

11. It is plain from the language of the Explanation to Section 20 that in  

all pending cases, which would include not only trials but even subsequent  

proceedings  by  way  of  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 apply as  

if the said provision had been in force for all purposes and for all material  

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times when the alleged offence was committed.  Clause (l) of Section 2 of  

the  Act  of  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 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  Juvenile  Justice  Board  

concerned for passing sentence in accordance with the provisions of the  

Act of 2000.

12. At this  juncture,  it  will  be profitable  to  take  note  of  Section 7A,  

inserted in the Act of 2000 with effect from 22nd August, 2006.  It 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 (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

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(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 orders  and the sentence, if any, passed by a court shall be deemed to  have no effect.”

Proviso to sub-section (1) of Section 7A contemplates that a claim of  

juvenility can be raised before any court and has to be recognised at any  

stage  even  after  disposal  of  the  case  and  such  claim is  required  to  be  

determined in terms of the provisions contained in the Act of 2000 and the  

rules framed thereunder,  even if  the juvenile  has ceased to be so on or  

before the date of the commencement of the Act of 2000.  The effect of the  

proviso is that a juvenile who had not completed eighteen years of age on  

the date of commission of the offence would also be entitled to the benefit  

of the Act of 2000 as if  the provisions of Section 2(k) of the said Act,  

which  defines  “juvenile”  or  “child”  to  mean  a  person  who  has  not  

completed  eighteenth  year  of  age,  had  always  been  in  existence  even  

during the operation of the 1986 Act.  It is, thus, manifest from a conjoint  

reading of Sections 2(k), 2(l), 7A, 20 and 49 of the Act of 2000, read with  

Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children)  

Rules, 2007 that all persons who were below the age of eighteen 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 is raised after they  

have  attained  the  age  of  eighteen  years  on  or  before  the  date  of  the  

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commencement of the Act of 2000 and were undergoing sentences upon  

being convicted.   

13. In the view we have taken, we are fortified by the dictum of this  

Court  in  a  recent  decision  in  Hari  Ram  Vs.  State  of  Rajasthan  &  

Another4.   

14. In the present case, as per the report of the Registrar submitted in  

terms of Section 7A of the Act of 2000, the age of appellant as on the date  

of commission of offences, i.e., 25th August, 1991, was 16 years, 9 months  

and 8 days.  The correctness of the estimate of age by the Registrar is not  

questioned  by  the  State.   The  parties  have,  therefore,  accepted  the  

correctness  of  the  age  determined  by  the  learned  Registrar.   In  our  

considered  opinion,  in  the  light  of  the  afore-stated  legal  position,  the  

appellant has to be held to be a juvenile as on the date of the Commission  

of the offences for which he has been convicted and is to be governed by  

the provisions of the Act of 2000.

15. Having held so,  the  next  question for consideration is  as  to  what  

order  on sentence is  to be passed against  the appellant  for the offences  

committed by him under Sections 302 and 307 read with Section 34 IPC,  

correctness whereof has not been put in issue before us.  Section 15 of the  

Act of 2000 provides for various orders which the Juvenile Justice Board  

(for short “the Board”) may pass against a juvenile when it is satisfied that  

4 (2009) 13 SCC 211

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the juvenile has committed an offence, which includes an order directing  

the juvenile to be sent to a special home for a period of three years.  Section  

16 of the Act of 2000 stipulates 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 so serious in nature 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 the  

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 of the State Government.  Proviso  

to sub-section (2) of Section 16 of the Act of 2000 provides that the period  

of detention so ordered shall not exceed in any case the maximum period  

provided under Section 15 of the said Act, i.e.,  for three years.   In the  

instant  case,  as  per  the  information  furnished  to  us,  the  appellant  has  

undergone an actual period of sentence of 2 years, 4 months and 4 days and  

is now aged about thirty five years.  We feel that, keeping in view the age  

of the appellant, it may not be conducive to the environment in the special  

home and to the interest of other juveniles housed in the special home, to  

refer  him to  the  Board  for  passing  orders  for  sending  the  appellant  to  

special  home or  for  keeping  him at  some other  place  of  safety  for  the  

remaining period of less than eight months, the maximum period for which  

he can now be kept in either of the two places.   

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16. Accordingly, while sustaining the conviction of the appellant for the  

afore-stated offences, we quash the sentences awarded to him and direct his  

release forthwith, if not required in any other case.  The appeal succeeds  

partly to the extent indicated above.

........................................J. [ D.K. JAIN ]

........................................J. [ J.M. PANCHAL ]

NEW DELHI, APRIL 23, 2010.

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